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Watchdog Finds That Nearly 1 in 5 OSHA Whistleblower Probes Are Flawed

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Federal officials responsible for protecting whistleblowers and examining their claims of employer retaliation are mishandling nearly one in five of their investigations, a government watchdog reports.

A review by the inspector general of the U.S. Labor Department found that 18 percent of the investigations by the Occupational Safety and Health Administration lack one or more of seven “essential elements.”

In addition, the inspector general found that 72 percent of the OSHA Whistleblower Protection Program investigations it reviewed missed deadlines imposed by federal law.

Even so, the inspector general found substantial improvement in the OSHA program since the watchdog office issued its last review in 2010.

Steven Pearlman, a management lawyer with Proskauer Rose LLP

Steven Pearlman, a management lawyer with Proskauer Rose LLP

At that time, as FairWarning reported, the inspector general found that about 80 percent of the agency’s investigations were flawed. The same month, a Government Accountability Office report found that nearly 40 percent of OSHA whistleblower program investigators had not taken or registered for required training on the statutes they are supposed to enforce. And earlier that year, FairWarning revealed staffing shortages that were creating long delays in resolving cases and a potential pro-employer bias because it is faster and easier to dismiss complaints than to substantiate them.

Under federal law, it’s illegal to harass, fire or otherwise discriminate against workers who blow the whistle on job safety hazards, the misuse of public funds or violations of environmental laws. OSHA is in charge of investigating whistleblower complaints under 22 laws covering everyone from railroad employees to truck drivers to nuclear power plant operators.

But in reviewing 132 randomly selected complaints from October 2012 through March 2014, the inspector general found that 24 investigations were flawed. Among other things, investigators failed to get in touch with complainants’ witnesses, to contact complainants when more information was needed and to give complainants the time needed to provide evidence.

Tom Devine, legal director of the Government Accountability Project

Tom Devine, legal director of the Government Accountability Project

In addition, the inspector general determined that during the same period, OSHA failed to meet deadlines on 3,206 of the 4,475 complaints the agency received that warranted investigations. The investigations took an average of 238 days to complete, up from 150 days in 2010.

OSHA management, in its response to the audit, agreed with many of the findings, and acknowledged that more improvements are needed. But the agency also noted that the number of new complaints it received climbed to 3,060 in the 2014 fiscal year, up 58 percent from 2005. “Consequently, OSHA still lacks the resources that it needs to process and investigate whistleblower complaints with the expedience that we would like, while also maintaining the quality and thoroughness that is appropriate,” the agency said.

Tom Devine, legal director of the Government Accountability Project, a nonprofit whistleblower advocacy group, faulted the inspector general’s report for downplaying the problems at OSHA. “Our biggest concern with OSHA has been that whistleblowers’ cases are prisoners of a process that’s moving at a snail’s place,” Devine said. “Unemployed whistleblowers can’t afford for an agency to take months to years resolving complaints when, by law, it’s required to spend weeks to months.”

Devine also pointed to findings by the inspector general that, since 2011, OSHA has failed to fully update its training manual. In addition, he said, over that period the agency has performed comprehensive reviews on only two of its 10 regions, despite a requirement to do so every four years. As a result, the basis “for saying that matters have improved is indefensibly incomplete” He added that even the inspector general report, “while giving credit in its bottom line conclusion, is packed with warning signs that nothing has fundamentally changed at that agency.”

Steven Pearlman, a Chicago management attorney who is co-chair of the whistleblowing & retaliation section at the law firm Proskauer Rose LLP, acknowledged that OSHA needs to cut delays in its investigations. Still, Pearlman said, based on what he has seen in his own practice, “OSHA investigators are taking the need to be thorough into consideration.”

“I don’t take away from this that we’re in a troubled, desperate situation,” Pearlman said. “It looks to me like things have improved quite a bit and that the trajectory is very positive.”