August 9, 2011 Celeste Monforton, DrPH, MPH 4Comment

Individuals who “blow the whistle” have the courage to tell authorities about corruption, fraud or safety hazards in their organization, even when doing so may result in being demoted or reassigned, fired or passed over for promotion, or discriminated against in another way. Whistleblowers are truck drivers who refuse to drive unsafe vehicles, railroad workers who report work-related injuries, or a bank manager who alleged financial securities fraud. There are dozens of federal laws designed to protect whistleblowers from adverse action by their employers, including provisions in the Clean Air Act, the Pipeline Safety Improvement Act, and the Affordable Care Act. Twenty-one and of these whistleblower protection laws are enforced the Labor Department’s Occupational Safety and Health Administration (OSHA). The resource-strained OSHA has struggled for years to meet the challenge. Last week, OSHA’s assistant secretary David Michaels, issued a statement announcing

“new measures [which] will significantly strengthen OSHA’s enforcement of the 21 whistleblower laws that Congress charged OSHA with administering.”

I thought the agency’s announcement lacked a sense a urgency commensurate with the gravity of the problems identified by two recent reports by the Government Accountability Office (GAO), one by the Labor Department’s Inspector General (OIG) and the agency’s own internal review. Here’s why I say that:

In January 2009, GAO identified serious discrepancies between the information contained in case files and that in the agency’s administrative databases. As a result, GAO found that OSHA can’t evaluate complaint processing times, how long it takes to investigate and close a case, or make decisions about appealled cases. OSHA reported at the time that it was in the midst of implementing a new information management system which would help to resolve these problems. A year and a half later, the new data system is not yet fully operational, and an OSHA internal review suggests that data from whistleblower cases are not part of the new system. OSHA’s announcement last week provided no substantive details on how these internal control deficiencies have been addressed. The agency only said:

“The data collection system has been modified.”

In the same 2009 GAO report and again in an August 2010 report, the auditors found that a majority of OSHA’s whistleblower investigators had not received the mandatory training on the statutes they are expected to enforce. Those findings were consistent with OSHA’s own internal review of the program. The staff reported being:

“…undervalued and overworked and that they don’t receive adequate support, training and equipment to do their job.”

In their reported dated December 2010, the internal review team urged OSHA leadership to:

“…take expedient action to correct systemic problems identified in this report.”

The reviewers’ call for expedient action came eight months ago, and reiterated what the GAO had urged nearly two years earlier. When OSHA announced it would be holding a training conference in September for all whistleblower investigators, my reaction was not “atta boy,” but “it’s about time.”

There seems to be a disconnect between what senior officials say about the importance of the whistleblower program:

“whistleblowers play an essential role in protecting workers and the public,” and

“without robust whistleblower protections, [workers’] voices may be silenced — and this silence impacts far more than just the individual workers involved”

and the speed in which they implement improvements. The internal review team identified three unique organizational structures in place in OSHA’s 10 Regional Offices, described the pros and cons of each, and provided guidance to senior officials on how to transition to a single model. Eight months later, the agency says it is still pilot testing different field structures.

There also seems to be a disconnect between what senior officials say and the reality for investigators. The front-line staff report:

“having difficulty managing their case loads and completing quality investigations,” and “feeling demoralized because they can’t keep up the pace.”

I hope when the training conference takes place in September, a few senior OSHA officials participate in the entire event to be submerged into the world of these front-line staff.

Ultimately, the whistleblowers themselves suffer the consequence of the poorly managed program. As the Labor Department’s Office of the Inspector General (OIG) noted in its September 2010 report, 77 percent of the complaints filed under OSHA’s 11(c) provision, the Sarbanes-Oxley Act, and Surface Transportation Assistance Act were dismissed, but perhaps only because many of the cases were not appropriately investigated. The OIG estimated that 80 percent of investigations missed at least one or more of the eight key elements of the investigation process.

Certainly the curriculum at the scheduled training conference will help to address those procedural deficiencies, but OSHA has been silent on how it is addressing the serious morale problems among the ranks of whistleblower investigators. OSHA’s announcement last week said nothing about these morale problems which are a direct reflection of how the program is managed. OSHA’s own internal review reported on a survey of 86% conducted in 2010 of the non-managerial whistleblower staff:

“the whistleblower program is not a priority, that in virtually every area from staffing levels, training, access to funds, equipment and support the whistleblower program comes second to safety and health enforcement programs,” and feeling “undervalued and overworked and that they don’t receive adequate support, training and equipment to do their job.”

The internal review report suggested more than 60 recommendations to improve the management, oversight and operations of the whistleblower program. A fair number of them address procedures and resources that likely influence employee morale. OSHA should consider providing the participants at its upcoming whistleblower training conference a progress report on the implementation of the recommendations. Imagine the morale boost for the staff if they see that in the eight months since the internal review was completed, top OSHA officials took the recommendations to heart and acted on them.

4 thoughts on “Obama Labor Department taking steps to improve whistleblower protections, but progress is slow

  1. Your comment is actually too mild. What is involved in actually protecting individual employee whistleblowers is determining whether or not an employee was disciplined for a legitimate reason or for an illegal reason (blowing the whistle). In the end, the determination has nothing to do at all with whether the alleged whistleblowing involved occupational safety and health or transportation or the environment. What was an enforcement mechanism added to many laws is really now a national employment standard — with gaps in coverage and somewhat better procedural rules for some rather than others. Multiple Administrations and Congresses have passed up the chance to pull things together into a single law; and since it isn’t officially designated as an “employment standard”, it hasn’t been the basis of discussions with other countries in trade negotiations (enforcement mechanisms are left to each country). While moving responsibility to the OSHA front office is better than keeping it in OSHA enforcement, for the moment one can presume that the staff will probably report through the same civil service official who was responsible for all the problems you cited (who is now in the front office). DOL declined the opportunity, yet again, to move this whole activity into a separate office reporting to the Dep Sec (there is no longer an Employment Standards administration per se, which is where this employment standards issue belongs). In part the problem is from certain individuals organized labor, which has continued to insist that the MSHA wb program is critical to MSHA and the OSHA wb program is critical to OSHA — as if they can’t trust any other part of the Department. The Dep Sec took personal responsibility for resolving the problems you indentified two years ago. Too bad reinvention awards aren’t around or he, David, Jordan and Richard could give one to themselves himself. Hasta la vista, baby.

  2. Agreed. I was too mild in my critique. Look at the end of the top-to-bottom review and read the comments from stakeholders about the program. It will be interesting to get those same individuals together in a year or two and see if their views have changes substantially. That may tells us something about the effect of these changes.

  3. It’s particularly disheartening in economic times like these, when many dangerous industries (construction, manufacturing) are experiencing such high unemployment that the option of getting another job just doesn’t exist for many people working in dangerous industries. They are stuck with the job they have, but can’t even be legally protected when they try to improve the safety of the job they’re have.
    Its really disheartening, and people are probably getting injured because of this.

  4. The Administration’s sincerity in this matter seems doubtful given that it has launched more prosecutions of government whistleblowers than all previous Administrations combined.

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