IG blows the whistle on OSHA oversight

Backlash continues despite protection program

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A federal government program aimed at protecting private-sector whistleblowers does a poor job of investigating complaints, and workers who are fired or blackballed after reporting violations rarely win restoration, according to a government report.

The Labor Department’s office of inspector general said the vast majority of federal investigations into whistleblower complaints missed basic steps, such as interviewing witnesses, and workers who reported violations received no guarantees that their complaints would receive appropriate investigation under the Whistleblower Protection Program.

In a little-noticed 36-page report released Thursday, the inspector general’s office estimated that 80 percent of the whistleblower investigations conducted under the Occupational Safety and Health Administration (OSHA) — which oversees the Whistleblower Protection Program it created — did not meet one or more of eight elements essential to the investigative process.

The report, signed by Elliot P. Lewis, assistant inspector general for audit in the inspector general’s office, said OSHA’s Whistleblower Investigations Manual had not been updated since 2003 and that investigators did not have any written guidance on how to conduct investigations under the three new whistleblower statutes assigned to OSHA since the last update.

Additionally, it said, many investigators did not have access to experts on subject matter for technical guidance on the 17 statutes they were responsible for enforcing.

OSHA is charged with enforcing the whistleblower protections of 19 laws covering about 200 million U.S. workers. The laws cover job safety, pollution control, corporate fraud and other matters. The law prohibits employers from retaliating against employees who come forward with complaints.

In August, the Government Accountability Office (GAO) issued a scathing report on the whistleblower program that said OSHA had “done little” to ensure that investigators had the necessary training and equipment to do their jobs, and that it lacked sufficient internal controls to ensure that the whistleblower program operated as intended.

The GAO said that while OSHA had enhanced its whistleblower training and had established two mandatory two-week courses in 2007 and 2008, it had not ensured attendance or taken steps to make sure investigators had the necessary equipment to do their jobs. The agency also criticized OSHA for inconsistent program operations, inadequate tracking of program expenses and insufficient performance monitoring.

While the GAO faulted OSHA management, the inspector general's office analyzed more than 1,200 investigations during a one-year period, finding that whistleblowers prevailed in only 2 percent of cases and another 21 percent of cases resulted in settlements. In the vast majority of settlements, it said, the job was not returned to the whistleblower.

“This dismal success rate for whistleblowers appeared to be a direct result of shoddy investigations,” the inspector general's office said.

The two reports were issued at a time when Public Employees for Environmental Responsibility (PEER) — a nonprofit service organization for local, state and federal government employees concerned about the proper management of the nation’s environmental and natural resources — has been calling for the government to remove the whistleblower program from OSHA to its own bureau.

“Under OSHA, whistleblowers are like lambs led to slaughter,” PEER Executive Director Jeff Ruch said in a statement. “The world’s largest whistleblower program can no longer remain a collateral function inside a dysfunctional bureaucracy; it needs a home of its own.”

In its report, the inspector general's office said OSHA could improve its whistleblower investigations by adequately supervising the investigations, adequately managing regional investigators’ caseloads, overseeing and monitoring investigations for compliance with policies and procedures, developing performance measures or indicators for the whistleblower program, and providing adequate guidance to investigators.

In a letter of response to the report, OSHA Assistant Secretary David Michaels said the agency is making efforts to “fully evaluate” its whistleblower protection program, including a “top-to-bottom review” concerning policy, resources, equipment, organization and work processes.

“The objective is to identify any weaknesses and inefficiencies in the program and improve the way OSHA conducts this very important activity,” Mr. Michaels said.

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