January 3, 2011 The Pump Handle 0Comment

Liz and Celeste are on vacation, so we’re re-posting some content from our old site.

By Celeste Monforton, originally posted 3/11/10

I think the ghost of Tony Mazzocchi is haunting me. Every day for the last 10 days, I’ve been presented with narratives, videos, testimony and phone calls about the workers who are compelled or forced to become whistleblowers. It started with a student asking me about Karen Silkwood which opened the door for me to explain the OCAW/Mazzocchi-Silkwood connection and the vital contribution of whistleblowers in exposing deadly health and safety problems in work and community environments. Then I heard powerful testimony of whistleblower advocates at the OSHA Listens session, and later received an email from Tony Oppegard (an extraordinary attorney who defends coal miners for exercising their safety rights) in which he alerted me to a webcast. Tony said:

Thought you might like to watch this very compelling program (about 1 1/2 hours long) about why ‘whistleblowers’ are so important to our nation – and why Congress needs to enact stronger laws to protect those who risk their job to try to protect the public.

When Tony Oppegard recommends that I watch an 90-minute webcast, I know he’s darn serious.

He was pointing me to the Feb 17 event “Anyone Can Whistle: The Essential Role of the Whistleblower in American Society,” which was hosted by the Government Accountability Project and the Paley Center for Media. After I heard this introduction by the host, I was hooked, and watched the entire event:

“We are pleased to focus our conversation tonight on one of the great safeguards of American democracy and justice: Whistleblowing.”

“You’ll meet a diverse group of people, from different walks of life. …What they all have in common is their uncommon courage to stand up for what’s right, often despite devasting personal consequences.”

“You’ll see how too often the law fails to protect these good Samaritans and punishes them instead.”

As I watched the “Anyone Can Whistle” program on Saturday, it echoed what I’d just heard 48 hours earlier at the OSHA Listens session. The Employment Law Project’s Jason Zuckerman offered a frank, attention grabbing assessment of OSHA’s whistleblower protection program

“The prevailing culture or modus operandi at OSHA has been to conduct cursory investigations in which complainants are not kept in the loop and to issue findings adopting the employer’s justification for the retaliatory action…

In other words, OSHA often merely rubber stamps an employer’s pretextual explanation for a retaliatory adverse action, thereby giving OSHA’s imprimatur to unlawful retaliation. Such investigations do not deter retaliation and indeed have the opposite effect–emboldening employers to retaliate at will knowing that they will not be held accountable.”

Likewise, the National Whistleblower Center’s Richard Renner’s testimony reiterated the longstanding problems of OSHA’s management and oversight of its statutory whistleblower responsiblities. He reminded me of the 2009 GAO report and the litany of problems associated with OSHA’s decentralized and under-resourced whistleblower program.

When I worked at OSHA in the early 1990’s, it was apparent to even me, a GS-7 newbie, that the 11(c) program was a step-step child of the agency. At that time, OSHA only had 3-4 statutes to administer, now it’s responsible for 17 whistleblower laws. It’s disheartening and disappointing to read that many in OSHA management continue to treat these whistleblower investigation and defense of workers as collateral duty (or less.)

What’s worse is that about 60% of all the complaints filed are related specifically to workers exercising their rights under Section 11(c) of the OSH Act. That means most of the complaints are from workers about health and safety related retaliation. Defending them is OSHA’s core mission. There’s no reason this program this program should be treated like an orphan; it should be OSHA’s jewel—a treasured program at the heart of an effective worker health and safety protection system.

I’m not directing my criticism to the OSHA field staff who are hired to conduct this work—-and it is work that requires a unique set of skills—-but to OSHA’s managers up the chain of command who knew or should have known that these investigators don’t have basic equipment or the necessary training to effectively perform their jobs. The GAO found:

“…nearly half of the whistleblower investigators reported that the equipment they have does not meet the needs of their jobs…[and] cite the need for more training and legal assistance on the complex federal statutes that OSHA administers.”

Half the investigators don’t have the equipment they need?? That’s pathetic.

Worse still, it tells these discrimination investigators that their work is not as important as OSHA’s other responsibilities. That’s wrong. Vigilant defense of workers who exercise their whistleblower rights—-especially on issues related to health and safety—–is fundamental to an effective enforcement system. As Mr. Zuckerman warned, failing to aggressive investigate and pursue allegations of discrimination will embolden these lawbreaking employers.

In OSHA’s April 2009 response to the GAO, agency officials said:

“This recommendation has significant resource implications, which must be balanced against other critical program priorities. In the coming months, OSHA will weigh the options and do what it can to meet the equipment and software needs of investigators.”

I’ll be eager to hear from readers in OSHA’s field offices about how well OSHA’s top staff have taken care of this matter. That should have been an easy fix once somebody put his mind to it.

If the only problem identified by the GAO related to laptops and software, I wouldn’t be so troubled, but their findings were much more substantive. Throughout the report, one reads how the GAO auditors could barely even conduct an assessment because OSHA’s electronic data and case files were a mess. Despite those complications, they were able to identify great inconsistency among OSHA’s regions in outcomes for complainants—-with potentially dire consequences for the aggrieved workers. (Goodness help you if you file a complaint with one of the OSHA regions that “screens out” (i.e., dismisses) nearly all of workers complaints.)

Again, this seems to be the result of a largely (if not exclusively) decentralized management system. All the investigation, litigation, settlement and dismissals of whistleblower cases has been delegate to OSHA’s and the Solicitor’s Regional offices. The report indicated that OSHA’s current practice of having its Regional offices self-audit their whistleblower program performance is…sketchy.

GAO recommended:

” that the Secretary of Labor direct the Asst. Secretary of OSHA to revise its field audit directive to require that the audit be conducted by an entity outside the control of the regional administrator whose programs are being audited to ensure independence.”

In OSHA’s April 2009 response to the GAO, agency officials said:

“This recommendation may have significant resource implications, which must be balanced against other critical program priorities. OSHA will examine alternatives to ensure independence of the audit function and implement enhancements to the program to ensure quality and consistency of not only the whistleblower program but all OSHA programs conducted by OSHA field offices.”

I’d be curious to hear about these “enhancements.” Anyone have the details?

One short-term solution could be something as simple as Regional (peer) review of each others’ programs. I’ve learned that in some OSHA regions, their skilled investigators are able to find merit in nearly 40% of complainants’ cases, while in others the rate is as low as 5%. Obviously some of these OSHA whistleblower investigators know how to investigate and build a case. Too bad it seems to be an exception rather than the rule.

It seems like I’m not the only one who wants information on how OSHA has responded in the last year to the GAO report. On March 4, Senators Tom Harkin (D-IA) and Patty Murray (D-WA) and Cong. George Miller (D-CA) and Lynn Woolsey (D-CA) sent a joint letter to GAO Comptroller Gene Dodaro asking for a follow-up assessment. The Members of Congress have asked the GAO to answer these questions:

  1. Does the Whistleblower Protection Program (WPP) have adequate internal controls and accountability mechanisms to ensure that the criteria and standards for investigating complaints are consistently followed?
  2. What information exists on the program’s structure and budgetary resources, and what steps have been taken to ensure that investigators have the resources and training they need to do their jobs?
  3. What additional actions are needed to improve the management and structure of the WPP?

It’s encouraging to know that whistleblower protection is on the radar screen of OSHA’s oversight committees in the Senate and House. As I heard loud and clear in “The Anyone Can Whistle” webcast, individuals who become whistleblowers usually face dire professional, emotional and family consequences. They may be initially wounded by treatment from their employer, but some of their worst scars come from adminstration of the laws that are supposed to protect them.

Labor Secretary Solis and Asst. Secretary David Michaels can turn this situation around by thinking boldly and promptly to transform the Department’s whistleblower protection program. There’s a huge opportunity to make it vibrant and effective—-the kind of program that the nation’s workers deserve. Support for transforming the program abounds and the opposition is…..is…..the status quo?

If the Secretary is serious about her pledge to “give workers a voice,” a transformed whistleblower protection program is a place to start.

Celeste Monforton, DrPH, MPH is an asst. research professor at the George Washington University School of Public Health. She worked at USDOL from 1991 through 2001. She’s learned most about whistleblower protection as a fundamental part of worker health and safety from attorney-advocate Tony Oppegard of Lexignton, Kentucky. This post is dedicated to coal miner Scott Howard.

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