Findings reaffirm August GAO audit

(Washington, D.C.) – A new report by the U.S. Department of Labor (DOL) Office of Inspector General (OIG) inadvertently explains why the Occupational Safety and Health Administration (OSHA) rejects independent audits of its corporate whistleblower protection programs: OSHA cannot pass any audit except those where it grades itself.

The findings follow an August report by the Government Accountability Office (GAO) that also flunked OSHA’s whistleblower protection program: Whistleblower Protection: Sustained Management Attention Needed to Address Long-standing Program Weaknesses (GAO-10-722, August 2010). The OSHA Office of Whistleblower Protection Programs (OWPP) administers first stage investigations and initial rulings for 19 corporate whistleblower protection statutes, but the auditors concluded that “OSHA could not provide assurance that complainants were protected as intended under the various whistleblower protection statutes.”

Tom Devine, Legal Director of the Government Accountability Project, observed, “The only good news in this report is that OSHA chief David Michaels accepted the criticisms and promised to do better. The first step in any recovery is to get past denial.”

New agency leadership had been repeating incumbent bureaucrats’ denials of any problems. They rejected all criticism as anecdotal sour grapes by whistleblowers that had lost. Devine added, “OSHA’s passive aggression against whistleblowers now has been confirmed by every outside study providing independent research.”

The OIG report examined 1200 cases over a year from 2009-2010. Its findings include:

 

  • 80% of whistleblower investigations flunked one or more standards in OSHA’s own Whistleblower Investigations Manual.
  • OSHA only found merit for 2% of retaliation complaints.
  • OSHA issued final rulings without conducting any face-to-face interviews in nearly half its “investigations” (46%).
  • Only 21% of cases settled prior to a ruling. Out of those, only 3% of employees went back to work and 13% received any financial compensation.
  • There is no written guidance to conduct investigations under new corporate whistleblower statutes. (Congress has passed four new laws since 2006, and overhauled three passed earlier.)
  • There are no subject matter experts available to help with investigations of technical issues raised by corporate whistleblowers on issues including railroad safety, mass transit safety, consumer product safety, medical care and financial markets.
  • No training is required for supervisors, and none in the four audited regions had completed the two courses required for investigators.
  • While investigators can properly handle 6-8 open investigations at a time, they are being assigned up to 35.
  • OSHA only claims to have hired 16 of 25 new investigators already paid for by Congress, and even those are not reserved as full time employees.
  • There is inconsistent regional enforcement of national laws, with two out of four audited regions not disclosing their methodology for their internal audits. The other two relied on self-audit checklists, which covered as few as two out of eight elements in the Whistleblower Investigations Manual.
  • The National OWPP Office cannot regularly review regional performances, because the regions control performance reviews of themselves and bypass OWPP by sending the results directly to the same Deputy Assistant Secretaries who have been denying any problems.
  • All regional performance standards exclusively evaluated timeliness, with none checking the quality of the investigations.
  • The Whistleblower Investigations Manual has not been updated since August 2003, and there is no final written guidance for the eight laws enacted or modified since. Investigators make do with a draft from the national OWPP since 2007, but three more laws have been enacted or modified since.
  • Previous OIG reports found that OSHA policies and procedures did not cover eight of the statutes on its watch, even before recent legislation.
  • OSHA’s case management system is an ineffective, unreliable source of data for reports or monitoring.

OSHA chief David Michaels promised that times will change based on a new top to bottom management review that he has ordered. Unfortunately, despite conscientious staffing the review is compromised by an inherent conflict of interest: it was designed by the same holdover managers who denied any problems, and they exempted themselves from its scope.

“To be accurate, the top to bottom review is belly to bottom,” observed Devine. “It shields those managers who are responsible for OSHA’s breakdown. Accountability needs to start at the top.”

Government Accountability Project

The Government Accountability Project is the nation’s leading whistleblower protection organization. Through litigating whistleblower cases, publicizing concerns and developing legal reforms, GAP’s mission is to protect the public interest by promoting government and corporate accountability. Founded in 1977, GAP is a non-profit, non-partisan advocacy organization based in Washington, D.C.

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