WHISTLEBLOWER 

PROTECTION 

PROGRAM

Opportunities Exist for 

OSHA and DOT to 

Strengthen 

Collaborative 

Mechanisms 

Report to Congressional Committees

March 2014

GAO-14-286

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-14-286, a report to 

congressional committees

March 2014

WHISTLEBLOWER PROTECTION PROGRAM

Opportunities Exist for OSHA and DOT to Strengthen 

Collaborative Mechanisms 

Why GAO Did This Study

Transportation workers who “blow the 

whistle” on prohibited practices can 

help ensure that their employers 

comply with federal laws. Within the 

Department of Labor, OSHA

investigates whistleblower claims, filed 

by transportation employees who 

believe their employers have retaliated 

against them for reporting unlawful 

practices. The Moving Ahead for 

Progress in the 21st Century Act 

(MAP-21), required OSHA to establish 

protections for auto industry 

employees and required GAO to 

review OSHA’s efforts and 

transportation-related whistleblower 

claims. GAO examined (1) steps 

OSHA has taken to include auto 

industry employees in its whistleblower 

program and the extent to which OSHA 

collaborated with DOT components to 

address potential safety violations, and 

(2) the number of transportationrelated whistleblower claims in the last 

6 years and stakeholder-identified 

factors that may affect those numbers.

GAO compared agency documents 

against key practices for collaboration, 

and interviewed federal agency 

officials and stakeholders representing 

transportation modes covered by these 

statutes to identify factors that may 

affect the number of whistleblower 

claims reported by OSHA.

What GAO Recommends

OSHA and DOT should evaluate their 

current and in-process MOAs and 

incorporate key practices for 

collaboration. Neither agency agreed

or disagreed with the recommendation.

OSHA stated that it believes its MOAs 

incorporate key practices, but GAO 

continues to believe the MOAs can be 

strengthened.

What GAO Found

The Occupational Safety and Health Administration (OSHA) has taken steps to 

include auto industry employees in its Whistleblower Protection Program and has 

coordinated with the Department of Transportation (DOT) on whistleblower 

issues, but interagency collaborative mechanisms could be strengthened. Among 

other steps, OSHA is developing procedures for how it will investigate claims

from auto employees and estimates most of its efforts will be completed in 2014.

OSHA documents its collaboration with DOT’s component agencies on 

whistleblower protections by developing memorandums of agreements (MOA),

and currently MOAs cover aviation and rail employees; the agencies are 

considering developing MOAs to cover other transportation sectors such as

commercial motor-carrier employees. Officials from both OSHA and DOT believe 

it is important to identify or refer potential claims of retaliation and safety 

violations to each other. In September 2012, GAO concluded that collaboration is 

critical when meaningful results that the federal government seeks to achieve 

require the coordinated efforts of more than one federal agency. Among others, 

key practices of effective collaboration include clearly delineating roles and 

responsibilities and monitoring progress. OSHA and DOT officials agree that 

following GAO’s key practices would be beneficial. However, the agencies have 

an opportunity to strengthen current and future MOAs by clearly delineating roles 

and responsibilities, and determining how the agencies’ efforts will be monitored 

and evaluated. For example, the current MOAs do not clearly define agency roles 

and responsibilities with respect to developing training on whistleblower issues 

and regional coordination. Defining such responsibilities could help ensure 

beneficial training occurs and the agencies avoid miscommunication and 

inconsistent whistleblower processes involving referrals between the agencies’ 

regional offices. Additionally, since the agencies have not developed or 

documented how they would monitor referrals, neither OSHA nor DOT can 

assess whether the referral process is working as intended. By monitoring and 

evaluating the outcomes of referrals, the agencies would have more assurance 

that they are addressing the safety violations and claims of retaliation raised by 

transportation-related employees.

The number of transportation-related whistleblower claims filed with OSHA has 

increased in the last 6 years—from 508 in fiscal year 2008 to 821 in fiscal year 

2013—and GAO’s interviews with transportation industry stakeholders identified 

several factors that might affect those numbers and how they could be 

interpreted. These factors include multiple avenues to address safety issues, 

employee awareness of whistleblower protections, and statutory whistleblower 

provisions, among others. The identified factors are not mutually exclusive and 

could either increase or decrease the number of whistleblower claims. For 

example, officials representing three transportation modes noted that multiple 

safety-reporting mechanisms, such as anonymous hotlines, can indirectly affect 

whether employees file whistleblower claims since employees are less likely to 

face retaliation when reporting safety issues anonymously. Regarding statutory 

whistleblower provisions, the statute covering rail employees provides the largest 

number of protected activities, and this protection, according to rail industry 

officials, has enabled rail employees to file more whistleblower claims than other 

transportation employees.

View GAO-14-286. For more information, 

contact Lori Rectanus at (202) 512-2834 or 

rectanusl@gao.gov.
Page i GAO-14-286 Auto Employee Whistleblower Protections

Letter 1

Background 4

OSHA Has Initiated Efforts to Include Auto Employees in Its 

Whistleblower Program, but Has Opportunities to Enhance 

Collaborative Mechanisms with DOT 9

Transportation-Related Whistleblower Claims Have Increased, 

and Stakeholders Identified Various Factors Potentially 

Affecting the Number of Claims 16

Conclusions 25

Recommendation for Executive Action 26

Agency Comments and Our Evaluation 26

Appendix I Differences in the Transportation-Related Whistleblower Statutes 28

Appendix II Objectives, Scope, and Methodology 29

Appendix III Disposition of Whistleblower Claims from the Office of Administrative

Law Judges and Administrative Review Board 35

Appendix IV Comments from the U.S. Department of Labor 37

Appendix V GAO Contact and Staff Acknowledgments 39

Related GAO Products 40

Table

Table 1: Government Officials and Industry Representatives We

Interviewed 31

Contents
Page ii GAO-14-286 Auto Employee Whistleblower Protections

Figures

Figure 1: Information on Department of Transportation 

Whistleblower Statutes 5

Figure 2: Federal Whistleblower Investigation and Review Process 6

Figure 3: Number of Whistleblower Claims for TransportationRelated Statutes, Fiscal Years 2008-2013 17

Figure 4: Disposition of Transportation-Related Whistleblower 

Claims That OSHA Closed in Fiscal Year 2013 24

Figure 5: Key Differences in the Whistleblower Protection Process 

of the Transportation-Related Statutes 28

Figure 6: Disposition of Whistleblower Claims That the Office of 

Administrative Law Judges Closed in Fiscal Year 2012 35

Figure 7: Disposition of Whistleblower Claims That the 

Administrative Review Board Closed in Fiscal Year 2012 36
Page iii GAO-14-286 Auto Employee Whistleblower Protections

Abbreviations

ALJ Administrative Law Judge 

AIR21 Wendell H. Ford Aviation Investment and Reform Act of

the 21st Century

ARB Administrative Review Board 

DOT Department of Transportation 

FAA Federal Aviation Administration 

FMCSA Federal Motor Carrier Safety Administration 

FRA Federal Railroad Administration 

FRSA Federal Railroad Safety Act 

FTA Federal Transit Administration 

MAP-21 Moving Ahead for Progress in the 21st Century Act 

MOA memorandums of agreement 

NHTSA National Highway Traffic Safety Administration 

NTSSA National Transit Systems Security Act 

PHMSA Pipeline and Hazardous Materials Safety Administration

PSIA Pipeline Safety Improvement Act

OALJ Office of Administrative Law Judges 

OSHA Occupational Safety and Health Administration 

STAA Surface Transportation Assistance Act

This is a work of the U.S. government and is not subject to copyright protection in the 

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without further permission from GAO. However, because this work may contain 

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necessary if you wish to reproduce this material separately.
Page 1 GAO-14-286 Auto Employee Whistleblower Protections

441 G St. N.W.

Washington, DC 20548

March 19, 2014

The Honorable John D. Rockefeller IV

Chairman

The Honorable John Thune

Ranking Member

Committee on Commerce, Science, and Transportation

United States Senate

The Honorable Fred Upton

Chairman

The Honorable Henry A. Waxman

Ranking Member

Committee on Energy and Commerce

House of Representatives

Transportation industry employees who “blow the whistle” on prohibited or 

unlawful practices they discover through their employment can play an 

important role in ensuring that their employers comply with federal laws. 

Currently, there are six federal statutes that prohibit employers in various 

transportation industries from discriminating or retaliating against these 

employees.1 If whistleblowers in these transportation industries believe 

they experienced reprisals (such as being fired) for participating in

protected activities, they can file a claim with the Department of Labor’s 

Occupational Safety and Health Administration (OSHA). Through its 

Whistleblower Protection Program, OSHA investigates and reviews 

whistleblower claims.2

 1

The transportation industries are automotive, aviation, commercial motor carriers, 

pipeline, public transit, and rail. 

To carry out its responsibilities for investigating 

whistleblower claims, OSHA coordinates with relevant federal agencies 

that oversee those industries. For example, in the case of the various 

transportation-related statutes, OSHA coordinates with the Department of 

Transportation (DOT). As the federal agency responsible for developing 

and enforcing regulations to ensure a safe transportation system that 

employers in the transportation sectors must follow, DOT investigates 

potential transportation-related safety issues to determine whether any 

DOT regulations have been violated.

2

In all, OSHA is responsible for investigating whistleblower claims under 22 statutes.
Page 2 GAO-14-286 Auto Employee Whistleblower Protections

The Moving Ahead for Progress in the 21st Century Act (MAP-21), 

enacted in 2012, mandated protections for individuals employed in the 

auto industry and expanded OSHA’s responsibility to investigate the 

whistleblower claims from auto industry workers.3 MAP-21 also directed 

that we review OSHA’s efforts to include auto industry workers in the 

Whistleblower Protection Program.4

To address these issues, we examined the whistleblower provisions of 

the six statutes covering transportation workers in industries regulated by 

DOT

In this report, we present information 

on (1) the steps OSHA has taken to include auto industry employees in its 

whistleblower program and the extent to which OSHA has collaborated 

with DOT components to address potential safety violations, and (2) the 

number of transportation-related whistleblower claims in the last 6 years 

and stakeholder-identified factors that might affect those numbers. We 

also present information on the differences in the transportation-related 

whistleblower statutes (see app. I) and the disposition of claims.

5

: (1) MAP-21,6 (2) the Federal Railroad Safety Act,7 (3) the National 

Transit Systems Security Act,8 (4) the Surface Transportation Assistance 

Act,9 (5) the Pipeline Safety Improvement Act,10 and (6) the Wendell H. 

Ford Aviation Investment and Reform Act for 21st Century.11

 3

Pub. L. No. 112-141, § 31307, 126 Stat. 405, 765 (2012).

We 

reviewed our previous reports on whistleblower protections and pertinent 

documentation from OSHA and DOT, including memorandums of 

agreement (MOA), and interviewed key federal agency officials on efforts 

to coordinate whistleblower protections for employees in the 

transportation industry. We compared the agencies’ MOAs with our key 

4

Pub. L. No. 112-141, § 31307(b), 126 Stat. 405, 765 (2012).

5

These statutes cover transportation industry employees, not federal government 

employees who work for DOT. 

6

49 U.S.C. § 30171.

7

49 U.S.C. § 20109.

8

6 U.S.C. § 1142.

9

49 U.S.C. § 31105.

1049 U.S.C. § 60129.

1149 U.S.C. § 42121.
Page 3 GAO-14-286 Auto Employee Whistleblower Protections

practices for effective collaboration.12

To identify factors affecting whistleblower claims, we interviewed a broad 

array of stakeholders from 44 organizations representing six different 

transportation industries. The stakeholders include officials from

organizations representing employees and employers in the different 

transportation industries and nonprofit and advocacy groups representing 

whistleblowers. We selected these stakeholders because among other 

things, they are significant stakeholders in the transportation industries, 

and they represented a significant number of members in each of the six 

transportation industries; they were also referred by other stakeholders, 

including federal government officials and experts in whistleblower issues. 

The factors we identified are based on information gathered from the 

stakeholders and should not be viewed as identifying all factors that could 

affect the number of whistleblower claims made; however, the factors 

were consistently raised by the various stakeholders. The factors we 

report are limited to those identified by the stakeholders noted above and 

may not include all factors that could be identified. Also, the factors that 

we have identified should not be viewed as being representative of all 

transportation sector representatives and stakeholders.

We also analyzed OSHA data on 

the number of whistleblower claims for fiscal years 2008 to 2013 and the 

disposition of claims in fiscal year 2013. To determine the reliability of 

OSHA’s data on whistleblower claims, we reviewed relevant 

documentation and interviewed cognizant officials about their processes 

for reviewing the data and ensuring their accuracy. We determined the 

data used to be sufficiently reliable with attribution to official sources for 

conveying general information on OSHA’s receipt of complaints over the 

last 6 years and claim dispositions for fiscal year 2013.

We conducted this performance audit from May 2013 to March 2014 in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

 12GAO, Managing for Results: Key Considerations for Implementing Interagency 

Collaborative Mechanisms, GAO-12-1022, (Washington, D.C.: Sept. 27, 2012). In

conducting its work, GAO interviewed experts in the field of collaboration, reviewed 

collaborative mechanisms used by federal agencies, and reviewed and analyzed literature 

on interagency collaborative mechanisms.
Page 4 GAO-14-286 Auto Employee Whistleblower Protections

conclusions based on our audit objectives. Further details on our scope 

and methodology can be found in appendix II.

As the primary federal agency responsible for administering the 

Whistleblower Protection Program, OSHA is responsible for investigating 

whistleblower claims under 22 statutes, 6 of which contain protections for 

employees in the transportation industries who are regulated by DOT.

The 6 transportation-related statutes also include basic transportation 

safety provisions, which are administered by different DOT component 

agencies, as shown in figure 1. While OSHA investigates whistleblower 

claims, DOT investigates potential safety violations to determine whether 

any of its regulations have been violated and can refer employees 

alleging retaliation to OSHA. In fiscal year 2012, OSHA had a budget of 

approximately $16 million and 119 full-time employees to administer the 

whistleblower program.

Background
Page 5 GAO-14-286 Auto Employee Whistleblower Protections

Figure 1: Information on Department of Transportation Whistleblower Statutes

a

FRSA was amended in 2007 to assign responsibility for the whistleblower protections to the 

Department of Labor.

As shown in figure 2, there are several steps in the OSHA whistleblower 

claims process that employees in transportation-related industries follow.
Page 6 GAO-14-286 Auto Employee Whistleblower Protections

Figure 2: Federal Whistleblower Investigation and Review Process

• First, transportation industry employees file retaliation complaints with 

OSHA. A complaint should address the prima facie elements of a 

violation—that is, the complainant should state that the employee 

engaged in protected activity, the employer knew about the protected 

activity, the employer subjected the employee to an adverse action 

(such as being fired or demoted), and the protected activity 

contributed to the adverse action. OSHA investigators will screen a 

whistleblower claim for these prima facie elements and, if not met, 

dismiss the claim.

• Second, for claims meeting the prima facie standard, OSHA’s regional 

offices conduct an investigation. OSHA’s whistleblower investigation 

process involves the following key steps: receive and screen 

complaint, investigate the claim, and write final report and notify the 

parties. If OSHA’s investigation shows the complaint does not have 

merit (no reasonable cause to believe there was retaliation), the claim

is dismissed. If the investigation leads to the Secretary of Labor’s 

finding of merit (reasonable cause to believe there was retaliation), 

OSHA issues its finding and a preliminary order, which generally 

includes reinstatement to the employee’s previous position and back 

pay and may order other monetary relief. If neither party files an 

objection within the required time frames, the findings and the 

preliminary order become final. (See app. I for information on each 

statute’s time frames.)

• Third, if either party objects to the Secretary’s findings or preliminary 

order, under the DOT transportation-related statutes, either party may 
Page 7 GAO-14-286 Auto Employee Whistleblower Protections

request a hearing before one of the Department of Labor’s 

Administrative Law Judges (ALJ). This review is de novo—it does not 

take into account the Secretary’s findings from the OSHA 

investigation. The ALJ then makes a ruling that either upholds or 

overturns the Secretary’s finding.

• Fourth, if either party objects to the ALJ’s decision, either party may 

petition for review of the ALJ’s decision to the Administrative Review 

Board (ARB) which generally issues the Secretary of Labor’s final 

decision.

• Fifth, ARB’s final decision may be appealed to the appropriate federal 

court of appeal. Also, under some of the DOT transportation-related 

statutes, whistleblowers may file their complaint in federal district 

court if the Secretary of Labor does not issue a final decision within 

210 days. See our prior work for detailed information on OSHA’s 

whistleblower investigation process.13

The whistleblower protection process is generally prescribed in the six 

DOT transportation-related whistleblower statutes, which are 

supplemented by regulations that clarify and set forth specific 

requirements for the whistleblower protection process.14

 13GAO, Whistleblower Protection Program: Better Data and Improved Oversight Would 

Help Ensure Program Quality and Consistency, 

The statutes also 

provide some time-frames for filing whistleblower complaints, 

investigating whistleblower claims, and issuing a final decision. For 

instance, a whistleblower in the covered transportation industries 

generally has 180 days from when the retaliatory action took place to file 

a claim (except under AIR21, which requires claims to be made in 90 

days). Once a claim has been filed, OSHA has 60 days to issue findings 

and in cases where there is reasonable cause to believe there was 

retaliation, a preliminary order. However, the process could take longer 

than the 60 days. (See app. I for more information on the differences in 

the statutory provisions.) Given these timeframes, in some cases, 

whistleblower claims can take years to move through the process, from 

initially filing the claim to completion of the appeals process.

GAO-09-106, (Washington, D.C.: Jan. 27, 

2009).

1429 C.F.R. §§ 1978, 1979, 1981, 1982, and 1983.
Page 8 GAO-14-286 Auto Employee Whistleblower Protections

OSHA has been challenged in its ability to conduct investigations in a 

timely manner. In 2009, we examined the processing times for 

whistleblower claims and challenges OSHA faced in administering the 

program.15 At that time, OSHA faced two key challenges—it lacked a 

mechanism to adequately ensure the quality and consistency of 

investigations and many investigators reported they lacked resources, 

such as training, to do their jobs. We made recommendations intended to 

improve the Whistleblower Protection Program and enhance oversight; 

the Department of Labor took actions to address most of our 

recommendations, including revising its information database and 

providing training.16

 15GAO-09-106.

16Additional information about the status of these recommendations is available at 

http://www.gao.gov/products/GAO-09-106.
Page 9 GAO-14-286 Auto Employee Whistleblower Protections

OSHA is establishing whistleblower protections for auto industry 

employees as required under MAP-21. Specifically, OSHA has started to 

develop an interim final rule, investigative policies and procedures, and a 

fact sheet as follows:17

• Interim final rule. According to OSHA officials, the agency is in the 

early stages of developing an “interim final rule”18

 17During our review, OSHA initially planned to develop a memorandum of agreement 

(MOA) with the National Highway Traffic Safety Administration (NHTSA) for auto 

employees covered under MAP-21. In their technical comments on a draft of this report, 

the agencies said OSHA and NHTSA agreed that due to the low complaint volume under 

MAP-21, an MOA was not needed at this time.

that will cover 

whistleblower claims filed under MAP-21. MAP-21’s whistleblower 

provisions protect auto industry employees from retaliation by motor 

vehicle manufacturers, parts suppliers, and dealerships, for engaging 

in protected activity related to motor vehicle defects. The rule would, 

among other things, summarize the statutory whistleblower provisions 

18When an agency finds that it has good cause to issue a final rule without first publishing 

a proposed rule, it often characterizes the rule as an “interim final rule,” or “interim rule.”

This type of rule typically becomes effective immediately upon publication. In most cases, 

the agency stipulates that it will alter the interim rule if warranted by public comments. If 

the agency decides not to make changes to the interim rule, it generally will publish a brief 

final rule in the Federal Register confirming that decision. We did not review the interim 

final rule because it was being developed during our review.

OSHA Has Initiated 

Efforts to Include Auto 

Employees in Its 

Whistleblower 

Program, but Has 

Opportunities to 

Enhance 

Collaborative 

Mechanisms with 

DOT

OSHA Has Taken 

Preliminary Steps to 

Establish Whistleblower 

Protections for Auto 

Employees
Page 10 GAO-14-286 Auto Employee Whistleblower Protections

and the available remedies, explain how to file a claim, and describe 

OSHA’s investigative process. The rule was placed on the 

Department of Labor’s fall 2013 regulatory agenda;19 according to 

OSHA, the interim final rule is scheduled for publication in October 

2014. At the time of our review, additional steps that OSHA planned to 

take in developing the rule included researching key issues, drafting 

the rule in consultation with the Solicitor of Labor, sharing the draft 

with the National Highway Traffic Safety Administration (NHTSA), 

obtaining agency and departmental clearance, and submitting the rule 

to Office of Management and Budget for review. OSHA officials told 

us they did not have a project plan or timeline for completing these 

tasks related to development of the rule, but OSHA did have a due 

date for the overall development of the interim final rule. The interim 

final rule will be effective once it is published (currently scheduled for 

October 2014) and there will be a 60-day public comment period. 

After the comment period, OSHA plans to review the public’s 

comments and begin drafting a final rule, whereby the drafting and 

clearance steps described above are to be repeated. OSHA then 

plans to issue the final rule, which may incorporate changes based on 

comments the agency received.

• Investigative policies and procedures. OSHA is developing the 

policies and procedures for its investigators to use when reviewing 

claims filed by auto industry employees. According to OSHA, these 

policies and procedures will outline the procedures for handling 

retaliation complaints under the auto whistleblower statute and will be 

included in OSHA’s Whistleblower Investigations Manual.20 Until 

these procedures are finalized in fiscal year 2014, OSHA has 

instructed its investigators to follow procedures under the Consumer 

Product Safety Improvement Act of 2008, because the procedures 

under this statute are similar to the MAP-21 whistleblower statute for 

auto industry employees.21

• Fact sheet. OSHA is developing a whistleblower fact sheet that 

describes employees’ protected activities under MAP-21 and how to 

 19The regulatory agenda is how agencies announce future rulemaking activities and 

update the public on pending and completed regulatory activities.

20OSHA’s Whistleblower Investigations Manual provides guidance for investigating 

complaints of retaliation under all the whistleblower statutes administered by OSHA.

21Pub. L. No. 110-314, § 219, 122 Stat. 3016, 3062 (2008).
Page 11 GAO-14-286 Auto Employee Whistleblower Protections

report a claim of retaliation to OSHA. OSHA plans to publish the fact 

sheet for auto industry employees in 2014 and post it on its 

Whistleblower Protection Program webpage.22

According to OSHA and DOT officials, memorandums of agreement 

(MOA) are key documents through which the agencies document their 

collaboration. Although MOAs are not required by law, officials at both 

agencies said that the MOAs provide benefits, such as establishing a 

process between the agencies to communicate, exchange information, 

and work on common issues involving transportation safety violations that 

may arise from whistleblower complaints. In addition, agency officials said 

the MOAs provide continuity between the agencies as agency staff 

change and help to ensure that current staff understand what information 

should be shared. The MOAs include, among other things, background 

information on the agencies’ responsibilities and areas of cooperation.

OSHA has established MOAs or has plans under way to do so with 

several DOT components. For example, OSHA has established an MOA 

with the Federal Aviation Administration (FAA) covering aviation 

employees, and with the Federal Railroad Administration (FRA) covering 

rail employees in 2002 and 2012, respectively.23

 22OSHA has developed and posted fact sheets for other transportation industry 

employees in aviation, commercial motor carriers, pipeline, public transportation agencies, 

and railroad workers.

These MOAs are 

available on OSHA’s website and transportation industry employees and 

the public can access the documents. Although OSHA had not yet 

established MOAs with DOT components covering the remaining 

transportation industries, OSHA officials told us they were in the process 

of developing an MOA with the Federal Motor Carrier Safety 

Administration (FMCSA) to cover commercial drivers and other motor 

carrier employees and the Pipeline and Hazardous Materials Safety 

Administration (PHMSA) to cover pipeline employees. OSHA officials said 

23Since 1993, DOT’s component agencies have been authorized to enter into MOAs with 

OSHA in regard to setting and enforcing occupational safety or health standards and 

whistleblower protections for employees in DOT-regulated industries. 49 C.F.R.§ 

1.81(a)(23).

OSHA and DOT Could 

Strengthen Their 

Collaborative Mechanisms
Page 12 GAO-14-286 Auto Employee Whistleblower Protections

they plan to finalize the MOAs with FMCSA and PHMSA in 2014.24 OSHA 

requested an introductory meeting with the Federal Transit Administration 

(FTA) to discuss whether an MOA is needed to cover public transit 

employees.25

In our past work, we concluded that collaboration is critical when 

meaningful results that the federal government seeks to achieve require 

the coordinated efforts of more than one federal agency.

OSHA and NHTSA agreed that due to the low complaint 

volume under MAP-21 for auto employees, an MOA is not needed at this 

time. According to OSHA, the agencies will maintain established points of 

contact, keep lines of communication open, and continue to share 

information. Furthermore, OSHA officials said regardless of whether 

MOAs are developed with all DOT component agencies, OSHA has 

established points of contact at each component agency and will continue 

to share information with these agencies.

26 Following key 

practices for effective collaboration can help agencies address a range of 

challenges, including policy development, program implementation, 

oversight and monitoring, information sharing and communication, and 

organizational capacity for training.27

As our prior work has shown, when agencies work together to define and 

agree on their respective roles and responsibilities, as well as steps for 

For this review, we determined that 

two of the key practices are directly relevant to OSHA’s efforts to 

collaborate with DOT: (1) defining roles, responsibilities, and authorities; 

and (2) defining outcomes and monitoring progress toward outcomes. 

OSHA and DOT officials agree that these key practices are beneficial for 

effective collaboration and believe the key practices we identified have 

been incorporated in the existing MOAs. However, based on our review of 

the existing MOAs, we found that the practices were not fully incorporated 

as discussed below.

 24In OSHA’s technical comments, OSHA said the agency is considering whether certain 

MOAs are necessary, specifically those involving transportation statutes with low 

complaint volume.

25We were unable to review any draft of MOAs because they were in the beginning stages

of development during our review.

26GAO-12-1022.

27GAO-12-1022. The key practices for collaboration include outcomes and accountability, 

bridging organizational cultures, leadership, clarity of roles and responsibilities, 

participants, resources, and written guidance and agreements.

Roles and Responsibilities
Page 13 GAO-14-286 Auto Employee Whistleblower Protections

decision making, clear purposes and goals can be achieved. For 

example, as part of this effort, agencies can begin to clarify who will do 

what, identify how to organize their joint and individual efforts, and 

articulate steps for decision making.28

• Officials from both OSHA and DOT have said that it is in their 

interests to share information—that is, to identify or refer potential 

claims of retaliation and safety violations to the other agency. 

Specifically, if an employee reports a potential safety violation directly 

to OSHA, it is beneficial for OSHA to refer the employee to DOT since 

DOT components investigate the allegations of potentially unsafe 

conditions. To facilitate referrals between the agencies, OSHA’s 

MOAs with FAA

Our review of the MOAs between 

OSHA and DOT components found the agreements document some 

roles and responsibilities across broad areas of collaboration and provide 

the framework for working together and defining collaboration, for 

example:

29 and FRA state that when an individual notifies FAA 

or FRA of alleged discrimination that involves air-carrier or rail-carrier 

safety, the DOT agencies will inform the individual that a personal 

remedy is available only through OSHA and that the individual should 

personally contact OSHA.30 Additionally, according to OSHA’s 

Whistleblower Investigation Manual, OSHA should provide all 

incoming retaliation complaints, findings, and orders to the relevant 

DOT agency.

• OSHA’s MOAs with FAA and FRA require OSHA to provide FAA and 

FRA copies of all complaints and any findings filed under the relevant 

statute. FAA recently established a secure electronic mailbox 

designed to receive such complaints and findings from OSHA. 

Additionally, FAA is using that e-mail mailbox to securely 

communicate with OSHA to confirm receipt of a complaint or finding, 

refer a new complaint, and notify staff of safety enforcement actions 

and outcomes FAA initiated based on OSHA-referred complaints or 

findings. FRA officials said that all OSHA complaints relevant to FRA 

 28GAO-12-1022.

29Although FAA refers to its agreement as a memorandum of understanding, in this report 

we use MOAs to refer to agreements between OSHA and DOT components.

30There is no direct referral from DOT to OSHA. It is left to the individual employee 

whether he or she wants to file a claim with OSHA. 
Page 14 GAO-14-286 Auto Employee Whistleblower Protections

are sent to FRA headquarters where they are scanned into a 

database and reviewed for any potential violations of FRA safety 

regulations. FRA staff summarizes how FRA handles the complaint 

and this information is added to FRA’s file.

OSHA’s current MOAs include general descriptions of the agencies’

respective authorities and responsibilities and, according to agency 

officials, are intended to be broad, flexible agreements to facilitate 

cooperation. However, the existing MOAs do not clearly define roles with 

respect to training and regional coordination between the agencies. For 

example, although the FRA MOA includes information on developing 

training, the MOA with FAA does not because in general, OSHA officials 

said a more specific MOA may quickly become outdated or inoperable. 

Nevertheless, it is unclear which agency—FAA or OSHA—would develop 

or provide any training to assist FAA enforcement staff in recognizing 

alleged discrimination complaints that must be referred to OSHA and to 

assist OSHA staff in recognizing potential violations of federal air safety 

regulations that should be reported to DOT. OSHA officials said their 

investigative staff would benefit from additional training because a key 

challenge the staff face is to fully understand the differences in the 

transportation industries and statutes. Having roles and responsibilities 

with respect to training clearly articulated in the FAA MOA (and other 

MOAs as they are developed) could help ensure such training takes 

place.

Regarding regional coordination, neither of the existing MOAs specifically 

defined roles with respect to regional coordination, and as a result, it is 

not clear or transparent how referrals are coordinated between OSHA 

and DOT’s regional offices. For example, in the case of FRA, before April 

2011, each regional office had its own practices for responding to OSHA 

investigators’ requests for whistleblower-related information, which 

resulted in FRA investigators being unaware of their roles and 

responsibilities regarding the type of information they could share with 

OSHA. In April 2011, FRA issued detailed guidance about responding to 

OSHA’s requests for information. FRA developed a centralized approach 

to respond to OSHA’s requests. However, FRA’s guidance was issued to 

FRA’s regional offices, and not to OSHA’s regional offices and it was 

unclear whether OSHA’s regional investigators were aware of FRA’s 

policies. By more clearly defining agency roles and responsibilities 

regarding how regional coordination will occur, the agencies may be 

better able to avoid miscommunication and address inconsistent 
Page 15 GAO-14-286 Auto Employee Whistleblower Protections

whistleblower processes involving referrals between the agencies’

regional offices.

In September 2012, we concluded that federal agencies engaged in 

collaborative efforts need to create the means to monitor and evaluate 

their efforts.31 Reporting on these activities can help key decision makers 

within the agencies, as well as clients and stakeholders, to obtain 

feedback for improving both policy and operational effectiveness. With 

respect to whistleblower complaints, it would be beneficial for OSHA and 

DOT to track, monitor, and document the outcomes of the referral 

processes they have established—that is, the referrals from DOT to 

OSHA of potential claims of retaliation and the referrals from OSHA to 

DOT of potential safety violations.32 Although OSHA’s MOAs with FAA 

and FRA establish these referral processes, the agencies did not develop 

or document an approach for tracking, monitoring, and overseeing the 

referral processes. Without such data or developing and documenting an 

approach, neither OSHA nor DOT can assess whether the referral 

process is working as intended. OSHA officials said FAA and OSHA are 

developing a new MOA to streamline the agencies’ whistleblower 

processes for referrals to make them more efficient and consistent. 

However, since some referrals could involve serious safety concerns from 

other transportation industries that do not yet have established MOAs 

with OSHA, it is important that all transportation-related referrals be 

tracked, monitored, and evaluated. According to OSHA officials, OSHA 

identifies its intended outcomes for the whistleblower program overall 

within its operating plan, and specific information on monitoring outcomes 

of OSHA’s collaboration with DOT regarding whistleblower referrals is not 

included in the plan. We believe by establishing a means to monitor and 

evaluate the referral processes in the MOAs, OSHA and the DOT 

component agencies would be able to identify areas for improvement and 

better ensure that appropriate steps are taken with respect to referrals 

that include safety violations.

 31GAO-12-1022.

32When employees contact DOT about a potential claim of retaliation, DOT informs the 

employees that they should contact OSHA directly to file a claim. 

Outcomes and Monitoring 

Progress
Page 16 GAO-14-286 Auto Employee Whistleblower Protections

Overall, the number of transportation-related whistleblower claims 

increased during the last 6 fiscal years—from 508 in fiscal year 2008 to 

821 in fiscal year 2013 (see fig. 3). A sharp rise in claims filed by rail 

employees, discussed later in this report, accounted for most of the 

increase in the number of claims. Claims from other transportation 

industry employees fluctuated during that time. In fiscal year 2013, one 

whistleblower claim was filed in the auto industry (under the new 

provisions in MAP-21).

TransportationRelated 

Whistleblower Claims 

Have Increased, and 

Stakeholders 

Identified Various 

Factors Potentially 

Affecting the Number 

of Claims

Whistleblower Claims 

Have Increased in the Last 

6 Fiscal Years
Page 17 GAO-14-286 Auto Employee Whistleblower Protections

Figure 3: Number of Whistleblower Claims for Transportation-Related Statutes, Fiscal Years 2008-2013

Auto industry stakeholders we contacted, including employers and 

employee representatives, expect the number of whistleblower claims 

from auto employees to be low because they believe the industry has 

multiple reporting mechanisms in place, which enables employees to 

raise safety concerns through those avenues. For example, 

representatives from the five major auto makers we spoke with noted that 

a safety-reporting system exists internally within each company, and the 

companies expect and encourage their employees to report any safety 

concerns without retaliation. All of the auto makers we contacted said 

they have a reporting program, such as a hotline, to allow employees to 

raise safety issues anonymously via the phone or by e-mail, and a 

process for evaluating and addressing, as appropriate, the reported
Page 18 GAO-14-286 Auto Employee Whistleblower Protections

safety issues. One auto maker we contacted said it has an employee 

award program, which honors its employees for identifying and reporting 

any safety concerns on its automobiles, rather than retaliating against 

employees for raising safety issues. Union officials we contacted also 

mentioned that grievance procedures and a neutral arbitration process 

exist internally within one auto company and, as a result, they expect very 

few whistleblower claims from auto employees at that company. On the 

other hand, union officials also told us that many auto employees may not 

be aware of their whistleblower protections under MAP-21, which could 

also lead to fewer claims with OSHA.

Stakeholders we contacted consistently identified multiple factors that 

need to be considered when looking at the number of whistleblower 

claims filed.33

Stakeholders we contacted consistently cited unique characteristics and 

cultural differences in each transportation industry as a factor in the 

number of whistleblower claims. For example, they noted that the number 

of workers in an industry could play a role. Specifically, a commercial 

motor vehicle industry official noted that the large number of active truck 

drivers, compared to the number of employees in other transportation 

industries contributes to the number of whistleblower claims made by 

truck drivers. In other words, since there are so many truck drivers, the 

number of workers who may file a claim might be statistically larger than 

in other transportation industries. The Bureau of Labor Statistics reported 

more than 2.2 million employees in the commercial motor vehicle 

industry, compared to about 1.1 million and 287,000 in the aviation and 

rail industries, respectively, in 2012.

These factors are not mutually exclusive and could either 

increase or decrease the number of whistleblower claims filed with 

OSHA. The factors include (1) industry-specific characteristics, (2) 

multiple avenues to address safety issues or a strong safety culture, (3) 

awareness of whistleblower protection rights, (4) fear of retaliation, (5) 

statutory whistleblower provisions, and (6) a high number of dismissed 

claims.

 33The factors were commonly identified by stakeholders; however, not all stakeholders 

identified each factor.

Stakeholders Cited 

Various Factors That Might 

Affect the Number of 

Whistleblower Claims

Industry-Specific 

Characteristics
Page 19 GAO-14-286 Auto Employee Whistleblower Protections

The presence of labor unions may also contribute to the number of 

whistleblower claims, according to rail and aviation industry stakeholders 

we contacted. In a 2011 study of employees and whistleblowers in the 

work place, the Ethics Resources Center found that union employees, 

who are often provided certain contractual protections, had much higher 

rates of reporting specific misconduct than nonunion employees.34

The extent to which employees are able to successfully report safety 

violations also affects the number of potential claims, according to 

officials from the aviation, pipeline, and public transit industries and 

unions we interviewed. The availability of multiple safety-reporting 

mechanisms, such as safety hotlines provided by companies and the 

industry, can affect whether employees file whistleblower claims. Officials 

told us that when employees can report safety issues anonymously, they 

are less fearful of retaliation. Federal safety programs are also available 

to serve as an avenue for reporting safety issues. For instance, FAA 

established various voluntary disclosure reporting and partnership 

programs, which allow aviation employees to report safety concerns and 

events with protection from legal or disciplinary action by FAA or others, 

even if the reporting employee caused the safety violation.

Officials from OSHA and rail employee groups we contacted also noted 

that the relationship between employees and management in the rail 

industry and the working conditions for rail employees has been 

challenging, such as working up to 16 hours a day and suffering from 

chronic injuries on the job, which has likely contributed to employees filing 

more whistleblower claims.

35

 34Ethics Resource Center, Inside the Mind of a Whistleblower: A Supplemental Report of 

the 2011 National Business Ethics Survey, Arlington, VA (2012).

According to 

aviation union officials we contacted, this type of collaborative program 

with labor, management, and FAA may have contributed to the 

35The goal of FAA’s Aviation Safety Action Program is to enhance aviation safety through 

the prevention of accidents and incidents. Its focus is to encourage voluntary reporting of 

safety issues and events that come to the attention of employees of certain aircraft 

certificate holders (i.e., aircraft carriers). The program is based on a safety partnership 

that includes the FAA and air carriers as well as any third party entities, such as the 

employee’s labor organization. Other self-reported safety programs include the Voluntary 

Disclosure Reporting Program. For more information on these safety programs, see GAO, 

Aviation Safety: Enhanced Oversight and Improved Availability of Risk-Based Data 

Control Could Further Improve Safety, GAO-12-24 (Washington, DC: Oct. 5, 2011) and 

GAO, Aviation Safety: Improved Data Quality and Analysis Capabilities Are Needed as 

FAA Plans a Risk-Based Approach to Safety Oversight, GAO-10-414 (Washington, DC: 

May 6, 2012).

Multiple Avenues to Address 

Safety Issues or a Strong 

Safety Culture
Page 20 GAO-14-286 Auto Employee Whistleblower Protections

decreasing volume of whistleblower claims since fiscal year 2009, 

although the numbers have increased in fiscal year 2013. Aviation union 

officials also noted how such programs have changed the aviation 

industry culture and allowed employees to report their mistakes and work 

on resolving safety issues, rather than fearing disciplinary actions or 

retaliation. Similar to the aviation industry, pipeline union officials we 

contacted told us that pipeline companies are encouraged to establish an 

environment where employees can report safety concerns without 

retaliation. A 2011 survey of employees in the workplace found that 

employees are more likely to report unlawful or prohibited practices if 

employees feel confident about their job security and are not worried 

about retaliation.36

Rail-industry and commercial motor-vehicle industry officials we 

contacted consistently noted employees’ awareness of whistleblower 

protection rights as another factor that may increase or decrease the 

number of claims. Union officials noted that educating rail employees on 

whistleblower protection rights may contribute to the higher number of 

whistleblower claims from rail workers because employees are more 

aware of their rights. According to rail union officials, they made a 

concerted effort to educate their members on whistleblower protection 

rights soon after the Federal Rail Safety Act was amended in 2007.37 FRA 

officials also noted that more rail workers are learning from various 

sources about OSHA’s enforcement of whistleblower protections for rail 

employees, which might have led to the increase in whistleblower 

claims.38

 36Ethics Resource Center, Inside the Mind of a Whistleblower: A Supplemental Report of 

the 2011 National Business Ethics Survey, Arlington, VA (2012).

In contrast, pipeline union officials noted that the lower number 

of whistleblower claims in the pipeline industry may also be attributed to 

pipeline workers’ lack of awareness of OSHA’s whistleblower protection 

program. A union official representing one segment of truck drivers and a 

whistleblower attorney representing truck drivers cited lack of education 

on whistleblower protection rights by both employers and employees as a 

contributing factor to the number of whistleblower claims. On the other 

37The Federal Rail Safety Act was amended by the Implementing Recommendations of 

the 9/11 Commission Act of 2007, Pub.L.No. 110-53, 121 Stat. 444.

38FRA officials also told us that FRA’s witness statement form, which is used for 

enforcement activities, includes information about whistleblower protections and where to 

file a claim with OSHA.

Awareness of Whistleblower 

Protection Rights
Page 21 GAO-14-286 Auto Employee Whistleblower Protections

hand, this official also noted that long-haul truck drivers and independent 

owner-operators of trucks may be more aware of whistleblower protection 

rights than truck drivers in other industries, an awareness that could help 

explain the high number of whistleblower claims in the commercial motorvehicle industry.

Officials representing rail and truck drivers and a whistleblower attorney 

we contacted said that fear of retaliation is a factor that could cause 

employees to underreport safety violations and also file fewer 

whistleblower complaints. For example, officials representing truck drivers 

noted that truck drivers may break federal safety regulations, such as 

driving beyond the maximum number of service hours, to avoid getting 

fired or facing other retaliation from their employers.39 Independent truck 

drivers are paid by the mile and are under pressure by employers to 

extend driving beyond the regulated service hours each day, which may 

compromise the ability of the drivers to drive trucks safely. Officials 

representing truck drivers told us that if truck drivers do not want to drive 

beyond the required service hours and compromise safety, then 

employers may retaliate in many different ways, including providing no 

loads (i.e., goods or products) to be delivered. Those representatives and 

two whistleblower attorneys we contacted said employers can also 

retaliate by filing fictitious reports on truck drivers, such as reporting that a 

truck driver abandoned a load, in their employment history, so no one 

else would hire them.40

 39Most drivers are subject to the Hours of Service regulations, if they drive commercial 

motor vehicles. The Hours of Service regulations differs for property-carrying drivers and 

passenger-carrying drivers (e.g., Greyhound bus drivers). Passenger-carrying drivers may 

not drive after having been on duty for 15 hours, following 8 consecutive hours off duty, 

while property-carrying drivers may not drive beyond the 14th consecutive hour after 

coming on duty, following 10 consecutive hours off duty. (49 C.F.R. Part 395).

Since truck drivers are afraid of getting “blacklisted” if they make any safety complaints, they may be less likely to 

report any safety violations. Officials representing independent truck 

drivers also noted that whistleblower claims may be from new drivers 

because more experienced drivers are too fearful to file claims. New 

drivers may also be more aware of whistleblower protections since the 

Federal Motor Carrier Safety Administration began requiring 

40As part of a pre-hiring procedure, nearly all large trucking companies will look at a 

trucker’s employment and driving record to see if there is any history of accidents, traffic 

violations, or other issues that might disqualify the driver from the job. HireRight collects 

all this information into its database and sells the information on individual drivers as a 

Drive-a-Check report.

Fear of Retaliation
Page 22 GAO-14-286 Auto Employee Whistleblower Protections

whistleblower training as part of the entry-level requirements for 

commercial drivers in July 2004.

41

Differences in the statutory provisions related to the number of protected 

activities and availability of punitive damages may also contribute to 

variations in the number of filed whistleblower claims, according to rail 

and public transit officials we contacted. In particular, rail industry officials 

told us that the larger number of protected activities for rail employees 

compared with other transportation-related whistleblower statutes has 

enabled more rail employees to file claims. Rail union officials told us that, 

on the other hand, the additional protected activities have had a positive 

effect on rail employees as rail carriers are less likely to retaliate against 

employees for reporting injuries. The Federal Rail Safety Act provides 12 

categories of protected activities for rail employees, including prohibiting 

employers from retaliating against employees for notifying rail carriers or 

DOT of a work-related injury or illness and medical and first-aid 

treatment.42 Other transportation-related statutes have no such protection 

for covered employees. According to OSHA officials, about 60 percent of 

whistleblower claims filed by rail workers involved injury reporting over the 

years. OSHA recently began meeting with representatives from air, rail, 

and trucking industries to discuss the effectiveness of existing legislation 

in addressing practices that threaten employees’ ability to raise safety 

concerns, among other things.43

 41All entry-level drivers who drive in interstate commerce and are subject to the 

commercial drivers license requirements of 49 C.F.R. Part 383 must comply with the rules 

of Entry-Level Driver Training Requirements of 49 C.F.R. Part 380, Subpart E. Drivers 

who are subject to the jurisdiction of the Federal Transit Administration or who are 

otherwise exempt under 49 C.F.R. § 390.3(f) are exempt. Information on whistleblower 

protections is included as part of the Entry-Level Driver Training Requirements. See 69 

Fed. Reg. 29384 (May 21, 2004).

Additionally, rail industry officials told us 

that the availability of punitive damages in some statutes may be another 

contributing factor to the number of whistleblower claims. Rail, trucking, 

4249 U.S.C. § 20109.

43The meeting with representatives from air, rail, and trucking industries is part of the 

Whistleblower Protection Advisory Committee’s Transportation Sector Working Group that 

was charged to consider the effects and successes of the existing laws, gaps in both 

legislation and employer practices, employer practices that raise particular concerns, and 

the effectiveness of current legislation and enforcement in addressing these gaps. 

According to OSHA officials, the purpose of the working group is to obtain advice on 

where and how to most effectively and productively focus OSHA’s enforcement and 

outreach to the industries to achieve the greatest impact, given its current resources.

Statutory Whistleblower 

Provisions
Page 23 GAO-14-286 Auto Employee Whistleblower Protections

and pipeline employees are eligible to receive punitive damages if OSHA 

determines their whistleblower claims to be of merit. Rail industry officials 

noted that after the Federal Rail Safety Act was amended in 2007, 

increasing the amount of punitive damages that could be collected, the 

number of claims from rail workers began increasing.44

Officials representing rail, aviation, and public transit employees and truck 

drivers, and a whistleblower attorney told us that the high number of 

dismissed claims may discourage other employees, who may believe 

they have been retaliated against, from filing a claim. As shown in figure 

4, some 49 percent of transportation-related claims OSHA closed in fiscal 

year 2013 were dismissed, while 3 percent of the claims were found to 

have merit. According to OSHA officials, whistleblower claims were 

dismissed for various reasons, including that the claims were filed past 

the deadline or had insufficient evidence to demonstrate the employer 

had violated the whistleblower provisions. Additionally, about 52 percent 

(64) of the 123 claims that were closed by the OALJ and about 66 percent 

(19) of 29 claims that were closed by ARB in fiscal year 2012 were also 

dismissed. More information on the disposition of transportation-related 

whistleblower claims that were closed in fiscal year 2012 by OALJ and 

ARB can be found in appendix III.45

 44The Federal Rail Safety Act was amended by the Implementing Recommendations of 

the 9/11 Commission Act of 2007, Pub.L.No. 110-53, 121 Stat 444. 

45 We used data from fiscal year 2012 from these two agencies because it was the most 

recent data available to us during the time of our review.

High Number of Dismissed 

Claims
Page 24 GAO-14-286 Auto Employee Whistleblower Protections

Figure 4: Disposition of Transportation-Related Whistleblower Claims That OSHA Closed in Fiscal Year 2013

Note: Percentages may not sum to 100 because of rounding.

a

The number of settled claims includes both settlements where OSHA investigators actively assisted 

both parties (complainant and respondent) in reaching an agreement, where possible, and those 

where OSHA did not participate in the settlement negotiations. Settled claims may also have merit, 

but they were categorized as “settled” if both parties reached an agreement.

b

Kicked out claims are those filed under FRSA, STAA, and NTSSA, where the complainants decided 

to file civil actions in federal district courts for de novo review, where there had been no final decision 

of the Secretary of Labor within 210 days of filing the claim, and there had been no delay due to the 

complainant’s bad faith.

Officials representing rail, aviation, and public transit employees and truck 

drivers we contacted attributed the high number of dismissed claims to 

inconsistent investigation and significant differences in the investigation of 

whistleblower claims among OSHA’s regional offices; the officials told us 

that while the investigative process is fair and reasonable in some 

regional offices, other regional offices are not. Another official 

representing transportation employees told us that there could be a 

different investigation process and decision for the same type of 

whistleblower claim depending on which OSHA regional office was 

handling the claim. In September 2010, the Department of Labor’s Office 

of Inspector General reported that OSHA did not always ensure that 

whistleblower claims were appropriately investigated and could not

provide assurance that complainants were protected as intended under 
Page 25 GAO-14-286 Auto Employee Whistleblower Protections

the various whistleblower protection statutes.46

Although the number of transportation-related whistleblower claims has 

increased in the last 6 years, the reported number of claims can be 

interpreted various ways, yielding little meaningful information. For 

example, a low number of whistleblower claims could mean that 

employees are not retaliated against for reporting safety violations. But a 

low number of claims could also mean that employees are so fearful of 

retaliation that they choose not to report safety violations in the first place, 

or even that employees who have been retaliated against for reporting a 

safety violation are so discouraged by the high number of dismissed 

claims that they choose not to file a claim. Our interviews with key 

stakeholders revealed numerous factors that could affect the number of 

claims made. Because of the factors identified by stakeholders, it is 

difficult to use the number of claims as an indication of whether 

employees are taking appropriate advantage of their protections under 

whistleblower laws.

The DOL-OIG 

recommended, among other things, that OSHA oversee and monitor 

investigations, and OSHA agreed. OSHA officials told us that steps have 

been taken to improve the investigative process, such as further training 

of investigators and increased staffing. In December 2013, OSHA 

completed its first regional audit. OSHA is also planning to establish a 

work group to look at developing a consistent process for OSHA’s regions 

to use when they conduct case file audits of the whistleblower program. 

OSHA plans to establish the work group in March 2014 and plans to 

develop a process by September 2014. OSHA plans to incorporate this 

process into OSHA’s overall audit process.

The ability of transportation workers to report safety violations or other 

unsafe conditions without fear of reprisal is protected by law. While OSHA 

has primary responsibility for administering the Whistleblower Protection 

Program for these workers, collaboration with DOT is critical because of 

DOT’s role to enforce the underlying safety provisions of the 

transportation-related whistleblower statutes. Consistent with key 

practices for effective collaboration, OSHA and DOT document their 

agreements through MOAs that are publicly available, and at the time of 

 46Department of Labor Office of Inspector General, Complainant Did Not Always Receive 

Appropriate Investigation Under the Whistleblower Protection Program, Report Number 

02-10-202-10-105 (Washington, D.C.: Sept. 30, 2010).

Conclusions
Page 26 GAO-14-286 Auto Employee Whistleblower Protections

our review, the agencies had two existing MOAs and were in the process 

of developing MOAs for almost all of the other transportation industries. 

There are opportunities to strengthen these MOAs by following key 

practices for effective collaboration, especially related to (1) clearly 

delineating roles and responsibilities for training and regional coordination 

and (2) monitoring program outcomes. It is unclear which agencies will 

develop training and how they will coordinate their regional offices’

activities and how the referral processes will be monitored to ensure that 

goals and desired outcomes are achieved. Clearly delineating roles and 

responsibilities for conducting training and for coordinating regional 

offices’ activities could help ensure that training occurs and that the 

agencies avoid miscommunication and inconsistent processes involving 

referrals between their regional offices. Additionally, lacking clarity on how 

the agencies will evaluate and report on the results of the referral 

processes, the agencies are unable to identify areas for improvement and 

ensure that appropriate steps are taken on safety violations. Finally, if 

OSHA and DOT do not build these practices into their ongoing efforts to 

develop their MOAs, they may miss an opportunity to enhance and 

sustain interagency collaboration through these MOAs.

We recommend that the Secretaries of Labor and Transportation evaluate 

their current and in-process MOAs to ensure that the MOAs incorporate 

key practices for collaboration, such as those practices highlighted in this 

report.

We provided a draft of this report to the Departments of Labor and 

Transportation for their review and comment. The Department of Labor 

provided written comments (reprinted in app. IV), as well as technical 

comments. The Department of Transportation provided technical 

comments only. We incorporated the technical comments from both 

agencies as appropriate.

Neither agency stated whether they agreed or disagreed with the 

recommendation that the agencies assess their current and in-process 

MOAs and incorporate key practices for collaboration. While DOT did not 

address the recommendation, OSHA said that it believed its current and 

pending MOAs do incorporate the key collaboration practices that we 

identified in this report but agreed that there was room for improvement in 

the implementation of these key practices when collaborating with DOT’s

agencies. We did not assess the extent to which the key practices were 

actually being implemented. However, as discussed in this report, the 

Recommendation for 

Executive Action

Agency Comments

and Our Evaluation
Page 27 GAO-14-286 Auto Employee Whistleblower Protections

existing MOAs do not clearly define roles and responsibilities with respect 

to training and regional coordination between the agencies, and the 

agencies did not develop or document an approach for tracking, 

monitoring, and overseeing the referral process. Thus, we continue to 

believe that there are opportunities to strengthen the existing MOAs by 

better delineating roles and responsibilities and monitoring program 

outcomes that may help inform the implementation of such practices. 

Moreover, because the pending MOAs were not made available for our 

review, we were not able to determine whether they contained the key 

practices.

In technical comments, both agencies also noted that for certain 

industries with low complaint volume such as auto employees, they are

assessing whether MOAs were needed at this time. We believe this 

approach is contradictory to the agencies’ position that MOAs are a key 

way they document their collaboration. Additionally, as we found in this 

report, it is difficult to use the number of claims as an indication of 

whether employees are taking appropriate advantage of their protections 

under whistleblower laws, and so it is not clear why the agencies would 

use this as a determinant in their decision. Finally, for auto employees, 

considering that this law recently passed and OSHA is still establishing 

procedures for how it will address such claims, it is not surprising that the 

number of claims filed to date is low. As a result, we encourage OSHA 

and DOT to consider these factors as they assess the need for MOAs.

We are sending copies of this report to the Secretaries of Labor and 

Transportation and the appropriate congressional committees. In addition, 

the report will be available at no charge on the GAO website at 

http://www.gao.gov.

If you or your staff have any questions about this report, please contact 

me at 202-512-2834 or rectanusl@gao.gov. Contact points for our Offices 

of Congressional Relations and Public Affairs may be found at the last 

page of this report. Contact information and major contributors to this

report are listed in appendix V.

Lori Rectanus

Acting Director, Physical Infrastructure Issues
Appendix I: Differences in the TransportationRelated Whistleblower Statutes

Page 28 GAO-14-286 Auto Employee Whistleblower Protections

OSHA is responsible for administering the whistleblower protection 

provisions of six transportation-related federal statutes. These statutes 

are supplemented by regulations that set forth specific requirements for 

the whistleblower protection process. Such a process often includes an 

investigation, an administrative review (which can include the Office of 

Administrative Law Judges (OALJ) and the Administrative Review Board 

(ARB), and potential legal action in a U.S. court. Many provisions of the 

statutes are similar, including a 60-day deadline for determining the initial 

findings of an OSHA investigation, a de novo review of appealed 

whistleblower claims, and some remedies, such as back pay. There are 

key differences in the whistleblower protection process, as shown in 

figure 5.

Figure 5: Key Differences in the Whistleblower Protection Process of the Transportation-Related Statutes

Note: Secretary determines that a complaint is frivolous or brought in bad faith, the Secretary may 

award the employer a reasonable attorney’s fee not exceeding $1,000.

Appendix I: Differences in the 

Transportation-Related Whistleblower 

Statutes
Appendix II: Objectives, Scope, and 

Methodology

Page 29 GAO-14-286 Auto Employee Whistleblower Protections

The Moving Ahead for Progress in the 21st Century (MAP-21) mandated 

that we review efforts to include auto industry employees in the 

Occupational Safety and Health Administration’s (OSHA) Whistleblower 

Protection Program and provide information on the differences in the 

statutory provisions and the disposition of transportation-related 

whistleblower claims. This report presents information on (1) the steps 

OSHA has taken to include auto industry employees in its whistleblower 

program and the extent to which OSHA has collaborated with DOT 

components to address potential safety violations, and (2) the number of 

transportation-related whistleblower claims in the last 6 years and 

stakeholder-identified factors that might affect those numbers.

To address these issues, we examined the whistleblower provisions of 

the six relevant transportation-related statutes: (1) MAP-21, (2) the 

Federal Railroad Safety Act, (3) the National Transit Systems Security 

Act, (4) the Surface Transportation Assistance Act, (5) the Pipeline Safety 

Improvement Act, and (6) the Wendell H. Ford Aviation Investment and 

Reform Act for the 21st Century. These statutes cover transportation 

industry employees and do not cover federal employees who work in 

DOT. We also reviewed our previous reports on whistleblower protection. 

To examine OSHA’s efforts to include auto industry employees in 

whistleblower protection, we reviewed pertinent documentation from 

OSHA and DOT on whistleblower protection and interviewed key agency 

officials from OSHA’s Whistleblower Protection Program and DOT 

components on coordinating efforts to administer whistleblower protection 

for transportation industry employees. To determine the extent to which 

OSHA and DOT incorporated key practices for effective collaboration, we 

reviewed regulations authorizing DOT to enter into MOAs with OSHA in 

regard to setting and enforcing occupational safety or health standards 

and whistleblower protections,1 and identified key practices to apply to 

interagency collaborative efforts based on our past work on leading 

collaboration practices.2 We reviewed the key practices3

 1

49 C.F.R. § 1.81 (a)(23).

and selected two 

key practices for interagency collaborative efforts—defining roles and 

2

GAO, Managing for Results: Key Considerations for Implementing Interagency 

Collaborative Mechanisms, GAO-12-1022, (Washington, D.C.: Sept. 27, 2012). 

3

GAO-12-1022. The key practices for collaboration include outcomes and accountability, 

bridging organizational cultures, leadership, clarity of roles and responsibilities, 

participants, resources, and written guidance and agreements.

Appendix II: Objectives, Scope, and 

Methodology
Appendix II: Objectives, Scope, and 

Methodology

Page 30 GAO-14-286 Auto Employee Whistleblower Protections

responsibilities and outcomes and monitoring progress—because they 

were the most relevant to our review of OSHA’s and DOT’s collaborative 

efforts. We analyzed and compared memorandums of agreements that 

were available between OSHA and DOT component agencies to 

determine the extent to which the agencies were following key practices 

for implementing interagency collaborative mechanisms. In completing 

our work, we did not assess the effectiveness of OSHA’s Whistleblower 

Protection Program because GAO had recently reviewed the 

effectiveness of the program.4

To assess the number of transportation-related whistleblower claims, we 

analyzed OSHA data on the number of whistleblower claims received 

from fiscal years 2008 to 2013 and the disposition of claims that were 

closed in fiscal year 2013. We selected data starting from fiscal year 2008 

to include the number of claims from rail and public transit employees that 

filed with OSHA in the first year after the enactment of the National 

Transit Systems Security Act and amendment of the Federal Rail Safety 

Act in 2007. To determine the reliability of OSHA’s data on whistleblower 

claims, we reviewed our previous reports recommending improvements 

on OSHA’s data on whistleblower complaints and assessed the status of 

OSHA’s implementing our recommendations, including reviewing relevant 

documentation, and interviewing cognizant officials about their processes 

for reviewing the data and ensuring their accuracy. In general, based on 

the corrective actions that were taken, we consider the data used to be 

sufficiently reliable with attribution to official sources for the purposes of 

providing information on the number of transportation-related 

whistleblower complaints received in fiscal years 2008 to 2013 and 

information on the disposition of transportation-related whistleblower 

claims that OSHA closed in fiscal year 2013. We focused on the 

disposition of claims in fiscal year 2013 since the corrective actions were 

taken over time and earlier disposition data are likely to be less reliable. 

We also analyzed data on the disposition of transportation-related 

whistleblower claims that the Office of Administrative Law Judges and 

Administrative Review Board closed to examine other possible disposition 

of claims in the whistleblower review process. We used data from fiscal 

year 2012 from these two agencies because it was the most recent data 

available to us during the time of our review. We used the Bureau of 

Labor Statistics Current Employment Survey to obtain data on the 2012 

 4

GAO-09-106.
Appendix II: Objectives, Scope, and 

Methodology

Page 31 GAO-14-286 Auto Employee Whistleblower Protections

average annual number of employees in the different transportation 

sectors.

To identify factors affecting the number of whistleblower claims, we 

reviewed literature on whistleblower protection and interviewed 

stakeholders in the different transportation industries, including officials 

from 44 organizations representing employees and employers and 

nonprofit and advocacy groups representing whistleblowers to obtain their 

perspective on factors that impact the filing of whistleblower claims. Table 

1 below provides a list of all the stakeholders we interviewed, including 

government officials and industry representatives in the different 

transportation industries. We selected these stakeholders because 

among other things, we had previously identified them as significant 

stakeholders in the transportation industries, and they represented a 

significant number of members in each of the six transportation industries; 

they were also referred by other stakeholders, including federal 

government officials and experts in whistleblower issues.

Table 1: Government Officials and Industry Representatives We Interviewed

Stakeholder groups Stakeholder

Federal government agency officials Department of Labor:

• Occupational Safety and Health Administration

• Office of Administrative Law Judges

• Administrative Review Board

• Office of Inspector General

Department of Transportation:

• Federal Aviation Administration

• Federal Motor Carrier Safety Administration

• Federal Railroad Administration

• Federal Transit Administration

• National Highway Traffic Safety Administration

• Pipeline and Hazardous Materials Safety Administration

• Office of Inspector General
Appendix II: Objectives, Scope, and 

Methodology

Page 32 GAO-14-286 Auto Employee Whistleblower Protections

Stakeholder groups Stakeholder

Organizations Representing Employees • Government Accountability Project

• National Whistleblower Center

• AFL-CIO, Transportation Trade Department

• Commercial Vehicle Safety Alliance

• Truckers Justice Center

Automobiles:

• International Association of Machinist, Auto Mechanics Local 701

• United Auto Workers

Aviation:

• Airline Pilots Association

• American Federation of Flight Attendants

• International Brotherhood of Teamsters, Airline Division

Motor Carriers:

• International Brotherhood of Teamsters

• Owner-Operator Independent Driver Association

Pipeline:

• International Brotherhood of Electrical Workers

• International Brotherhood of Teamsters, Pipeline Division

• International Union of Operating Engineers

• United Association, Pipeliners Local 798

Public Transit:

• American Federation of State, County and Municipal Employees

• Transport Workers Union

• Union Transportation Union

Rail:

• American Train Dispatchers Association

• Brotherhood of Locomotive Engineers and Trainmen

• Brotherhood of Maintenance of Ways Employees Division

• Transportation Communications International Union
Appendix II: Objectives, Scope, and 

Methodology

Page 33 GAO-14-286 Auto Employee Whistleblower Protections

Stakeholder groups Stakeholder

Organizations Representing Industry Employers Automobile:

• Ford

• General Motors

• Honda

• National Automobile Dealers Association

• Nissan

• Toyota

Aviation:

• Airlines for America

• National Air Transportation Association

• Regional Airline Association

Motor Carriers:

• American Bus Association

• American Trucking Association

Pipeline:

• American Gas Association

• American Petroleum Institute

• American Pipeline Contractors Association

• Association of Oil Pipe Lines

• Common Ground Alliance

Public Transit:

• American Public Transportation Association

• Community Transportation Association

Rail:

• American Short Line and Regional Railroad Association

• Association of American Railroads

• National Railroad Construction and Maintenance Association

Source: GAO.

Based on our interviews with stakeholders, we identified and synthesized 

the factors under major themes. One aspect of the analysis was to 

discern the extent to which a factor was common to all transportation 

sectors or associated with a few or just one sector. The factors we report 

are limited to those identified by the stakeholders noted above and may 

not include all factors that could be identified. Also, the factors that we 

have identified should not be viewed as being representative of all 

transportation sector representatives and stakeholders. However, the 

factors identified are illustrative of key issues affecting the number of 

whistleblower claims that were consistently raised by the various 

stakeholders.
Appendix II: Objectives, Scope, and 

Methodology

Page 34 GAO-14-286 Auto Employee Whistleblower Protections

We conducted this performance audit from May 2013 to March 2014 in 

accordance with generally accepted government auditing standards. 

Those standards require that we plan and perform the audit to obtain 

sufficient, appropriate evidence to provide a reasonable basis for our 

findings and conclusions based on our audit objectives. We believe that 

the evidence obtained provides a reasonable basis for our findings and 

conclusions based on our audit objectives.
Appendix III: Disposition of Whistleblower 

Claims from the Office of Administrative Law 

Judges and Administrative Review Board

Page 35 GAO-14-286 Auto Employee Whistleblower Protections

After OSHA investigates a whistleblower claim and makes a finding, 

either party to the claim may appeal OSHA’s finding to the Office of 

Administrative Law Judges. After the Office of Administrative Law Judges 

reviews and issues a decision, the finding can further be appealed to the 

Administrative Review Board. Most of the claims that the Office of 

Administrative Law Judges and Administrative Review Board decided in 

fiscal year 2012 have been dismissed or withdrawn.1

Figure 6: Disposition of Whistleblower Claims That the Office of Administrative Law Judges Closed in Fiscal Year 2012

Some reasons for 

dismissal included: employee failure to meet one or more elements of a 

claim, lack of timeliness of complaint, or employee abandonment of the 

claim. Figures 6 and 7 illustrate the disposition of whistleblower claims 

that were closed in fiscal year 2012 from the Office of Administrative Law 

Judges and the Administrative Review Board, respectively.

Note: Percentages may not sum to 100 because of rounding.

a

Settled claims may also have merit but they were categorized as “settled” if both parties reached an 

agreement.

 1

We used fiscal year 2012 data from the two agencies because it was the most recent 

data available during the time of our review.

Appendix III: Disposition of Whistleblower 

Claims from the Office of Administrative Law 

Judges and Administrative Review Board 
Appendix III: Disposition of Whistleblower 

Claims from the Office of Administrative Law 

Judges and Administrative Review Board

Page 36 GAO-14-286 Auto Employee Whistleblower Protections

Figure 7: Disposition of Whistleblower Claims That the Administrative Review Board Closed in Fiscal Year 2012

Note: Whistleblower claims that reversed the Office of Administrative Law Judges’ (OALJ) decisions 

and/or remanded it back to OALJ were not included in this analysis. Claims that did not fall under the 

categories above were also excluded.

a

Of the 29 whistleblower claims that the Administrative Review Board closed in fiscal year 2012, 6 (or 

about 21 percent) were found favorable to complainants based on merit or procedural grounds.

b

Of the 29 whistleblower claims that the Administrative Review Board closed in fiscal year 2012, 19 

(or about 66 percent) were dismissed based on merit or procedural grounds.

c

Settled claims may also have merit, but they were categorized as “settled’ if both parties reached an 

agreement an agreement.
Appendix IV: Comments from the U.S. 

Department of Labor

Page 37 GAO-14-286 Auto Employee Whistleblower Protections

Appendix IV: Comments from the U.S. 

Department of Labor 
Appendix IV: Comments from the U.S. 

Department of Labor

Page 38 GAO-14-286 Auto Employee Whistleblower Protections
Appendix V: GAO Contact and Staff 

Acknowledgments

Page 39 GAO-14-286 Auto Employee Whistleblower Protections

Lori Rectanus, 202-512-2834, or rectanusl@gao.gov.

In addition to the contact mentioned above, Sally Moino, Assistant 

Director; Thomas Beall; Colin Fallon; David Hooper; Jennifer Kim; Joshua 

Ormond, and Lisa Shibata made key contributions to this report.

Appendix V: GAO Contact and Staff 

Acknowledgments

GAO Contact

Staff 

acknowledgments
Related GAO Products

Page 40 GAO-14-286 Auto Employee Whistleblower Protections

Whistleblower Protection: Actions Needed to Improve DOD’s Military 

Whistleblower Reprisal Program. GAO-12-362. Washington, D.C.: 

February 22, 2012.

Whistleblower Protection: Sustained Management Attention Needed to 

Address Long-Standing Program Weaknesses. GAO-10-722. 

Washington, D.C.: August 17, 2010.

Whistleblower Protection Program: Better Data and Improved Oversight 

Would Help Ensure Program Quality and Consistency. GAO-09-106. 

Washington, D.C.: January 27, 2009.

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