Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency
Published: 2009-01-27T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Workers who "blow the whistle" on prohibited practices play a role in enforcing federal laws, but these workers risk reprisals from their employers. The Whistleblower Protection Program at the Department of Labor's (Labor) Occupational Safety and Health Administration (OSHA) is responsible for investigating whistleblowers' complaints. OSHA's decisions generally may be appealed to the Office of Administrative Law Judges (OALJ) and, ultimately, the Administrative Review Board (ARB). GAO examined (1) what is known about processing times for complaints and what affects these times, (2) what outcomes resulted, and (3) what challenges OSHA faces in administering the program. To answer these questions, GAO analyzed electronic data files from OSHA, OALJ, and ARB; visited five OSHA regional offices; reviewed case files; conducted a Web-based survey of investigators; and interviewed key officials.
section_title: What GAO Found
paragraphs: Labor lacks reliable information on processing times and, as a result, cannot accurately report how long it takes to investigate and close a case or decide on certain appeals. OSHA does not have an effective mechanism to ensure that the data are accurately recorded in its database, and GAO's file reviews revealed that the key dates are often inaccurately recorded in the database or cannot be verified due to a lack of supporting documentation. For example, in one region visited, none of the case closed dates matched the documentation in case files. At the appeals level, the reliability of information on the processing times is mixed. Timeliness data at the OALJ level are reliable, and the OALJ completed appealed cases in an average of about 9 months in fiscal year 2007. In contrast, ARB data are unreliable, and the agency lacks sufficient oversight of data quality. GAO's file review found that ARB processing times ranged from 30 days to over 5 years. At all levels of the whistleblower program, GAO found that increasing caseloads, case complexity, and accommodating requests from the parties' legal counsel affect case processing times. Whistleblowers received a favorable outcome in a minority of cases that were closed in fiscal year 2007, both at initial decision and on appeal, but the actual proportion may be somewhat lower than Labor's data show. OSHA's data show that whistleblowers received a favorable outcome in 21 percent of complaints--nearly all settled through a separate agreement involving the whistleblower and the employer, rather than through a decision rendered by OSHA. However, GAO found several problems in the way settlements were being recorded in OSHA's database, and a review of settlement agreements suggests that the proportion of cases found to have merit may actually be about 19 percent. As with investigations, when whistleblower complaints were appealed, decisions favored the whistleblower in a minority of the cases--one-third or less of outcomes favored the whistleblower. With respect to administering the whistleblower program, OSHA faces two key challenges--it lacks a mechanism to adequately ensure the quality and consistency of investigations, and many investigators said they lack certain resources they need to do their jobs, including equipment, training, and legal assistance. OSHA does not routinely conduct independent audits of the program to ensure consistent application of its policies and procedures. OSHA's new field audit program has begun to address this need but is lacking in several key areas. For example, the current audit processes do not adequately provide for independence, an important aspect of an effective audit program. Moreover, OSHA is challenged to ensure that investigators in all regions have the resources they need to address their large and complex caseloads. OSHA has not established minimum equipment standards for its investigators, and nearly half of the whistleblower investigators reported that the equipment they have does not meet the needs of their jobs. Furthermore, investigators often cite the need for more training and legal assistance on the complex federal statutes that OSHA administers.

section_title: Letter
paragraphs: Workers who “blow the whistle” on prohibited or unlawful practices they  discover during their employment can play an important role in enforcing  federal laws. However, these whistleblowers also risk reprisals from their  employers, sometimes being demoted, reassigned, or fired. Many federal  laws and regulations establish a whistleblower protection process,  whereby workers who feel they have faced retaliation for blowing the  whistle can report their allegations to the appropriate federal agency,  which then determines the merit of their claims. The Whistleblower  Protection Program at the Department of Labor’s Occupational Safety and  Health Administration (OSHA) is responsible for receiving and  investigating most whistleblower complaints. Since the whistleblower  program began in 1970, the number of statutes for which OSHA is  responsible for enforcing whistleblower provisions has increased—recent  additions in 2008 bring the total to 17 such statutes. With the exception of  the Occupational Safety and Health Act, the basic provisions of these  statutes are administered by agencies other than the Department of Labor  (Labor). All of the whistleblower provisions are intended to protect   non-federal workers in a range of industries, including nuclear power,  transportation, pipeline infrastructure, consumer product safety, and  securities industries, as well as in several environmental areas. The  Whistleblower Protection Program does not have its own budget, but  shares resources with OSHA’s other enforcement programs--the exact  distribution of resources for investigations is decided by each of the 10  regional administrators. Since 2003, the number of investigators has  remained relatively steady; currently, OSHA has 69 investigators, 8  supervisory investigators, and 1 program manager assigned to the  whistleblower program. During fiscal year 2007, OSHA investigated and  closed over 1,800 whistleblower complaints covering 13 statutes.
To receive protection under the program, a whistleblower must file a  complaint with OSHA. Under the whistleblower provisions, OSHA has  between 30 and 90 days, depending on the statute, to complete its  investigation and make its initial findings. After OSHA completes its  investigation and issues its decision, the whistleblower and his or her  employer generally have the right to appeal the decision within Labor—for  many of the statutes, to the Office of Administrative Law Judges (OALJ)  and, ultimately, the Administrative Review Board (ARB). After this  administrative appeals process, either party may, in certain circumstances,  bring a legal action in a U.S. District Court or a U.S. Court of Appeals.
When we last reviewed the whistleblower program in 1988, we found that  OSHA had not focused sufficient management attention on the program,  and that criteria and standards for handling complaints were not  consistently followed. In addition, we found that many investigations  under the statute we reviewed were not completed within statutory time  frames. In 2001, Labor’s Inspector General similarly found that OSHA was  not completing its whistleblower investigations under two other statutes  within statutory time frames. Moreover, with the addition of new statutes  to the program, caseloads are increasing at all levels. Within this context,  we addressed the following objectives: (1) What is known about the  processing times for claims under the whistleblower statutes that OSHA  administers and what factors affect processing times? (2) What are the  outcomes from complaints filed with the Whistleblower Protection  Program? (3) What are the key challenges OSHA faces in administering the  whistleblower program?
To answer these questions, we obtained and tested the reliability of databases  on key information about whistleblowers’ cases from OSHA, OALJ, and ARB.  We found that the OSHA and ARB data on processing times were not reliable,  so we conducted case file reviews in 5 of the 10 OSHA regions to provide  examples of processing times for investigating these cases. We selected these  regions to give us a mix of case volumes (high and low) and to provide  geographic dispersion. In addition, we requested case file documents on all  cases the ARB closed in fiscal year 2007 and were able to obtain and analyze  109 of the 120 cases that were closed. With regard to outcomes, we found that  elements in OSHA’s database related to cases dismissed and withdrawn were  sufficiently reliable for our purposes, but the data related to settlements were  not; therefore, we reviewed and analyzed all available settlement documents  completed in fiscal year 2007. The OALJ and the ARB databases did not  contain outcome information. Because we had to rely largely on reviewing  whistleblower case decisions to gather these data, we focused our efforts on  cases closed in fiscal year 2007. We also reviewed pertinent documents and  interviewed agency officials from OSHA, OALJ, and ARB. In addition, we  surveyed all OSHA investigators to gather information about their views of  the whistleblower program, and we received an 86 percent response rate.  During our site visits to the five OSHA regional offices, we interviewed key  officials and, to supplement these site visits, we interviewed officials in the  other five regions by phone to obtain their views of the whistleblower  program. In our work, we did not review the adequacy of Labor’s human  capital strategies for meeting its current and future investigation workload. In  addition, we did not assess the quality of the investigations or the  appropriateness of whistleblower outcomes because these aspects were  beyond the scope of the engagement. Appendix I contains a detailed  discussion of our objectives, scope, and methodology. We conducted this  performance audit from October 2007 to January 2009, 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.
subsections: section_title: Background
paragraphs: OSHA was established after the passage of the Occupational Safety and  Health Act in 1970. In the broadest sense, OSHA was mandated to ensure  safe and healthy working conditions for working men and women. Section  11(c) of that act prohibits anyone from discharging or discriminating  against any private sector employee because that employee filed a  complaint related to the act. Section 11(c) also allows these employees to  file a complaint with the Secretary of Labor alleging such discrimination.  OSHA was initially responsible for investigating whistleblower allegations  under only the Occupational Safety and Health Act. In 1983, OSHA began  investigating whistleblower complaints from trucking employees and,  since that time, OSHA has been assigned whistleblower provisions under  15 other statutes related to airline, nuclear power, pipeline, environmental,  rail, consumer product safety, and securities industries. Currently, under  OSHA’s whistleblower program, the agency is responsible for investigating  discrimination complaints under 17 statutes, the basic provisions of which  are administered by a number of different federal agencies (see table 1).  Other Labor agencies, such as the Mine Safety and Health Administration  and the Employment Standards Administration, are responsible for  enforcing anti-retaliation provisions for several other statutes for which  Labor is substantively responsible. (App. II provides details on the  whistleblower provisions OSHA enforces, including statutory and  regulatory time frames. App. III provides information on the anti- retaliation provisions that other Labor agencies administer.)
As with OSHA’s enforcement programs, the whistleblower program  operates within the decentralized structure of the agency’s regional and  area offices, and the 10 regional administrators are responsible for  administering the program in their regions (see fig. 1). Each region  generally employs a supervisory investigator or program manager and a  number of investigators to review claims filed under the whistleblower  program. The program’s national director, located in Washington, D.C., is  responsible for developing policy and procedures, providing training, and  offering technical assistance and guidance.
A whistleblower’s claim begins when he or she contacts OSHA with an  allegation of discrimination for engaging in a protected activity, such as  reporting a workplace health violation to OSHA or a Clean Air Act violation to  the Environmental Protection Agency. According to Labor, the  whistleblower—or complainant—should address the prima facie elements of  a violation: the employer knew about the protected activity, that the  employer—or respondent—subjected the whistleblower to an adverse action  (such as being fired), and the protected activity contributed to the adverse  action. Investigators screen complaints for these prima facie elements and, if  warranted, conduct an investigation (see fig. 2).
If the investigation results in a finding of nonmerit, the case is dismissed. If  the investigation leads to a Secretary’s finding of merit, OSHA generally  issues a preliminary order, which may include reinstatement to the  employee’s previous position and back pay. If neither party files an  objection within the required time frames, the preliminary order becomes  final. (See app. II for information on each statute’s time frames.) If either  party objects to the Secretary’s findings or preliminary order, the objecting  party may generally request a review of the case.
For complaints under the Occupational Safety and Health Act, Asbestos  Hazard Emergency Response Act, and International Safe Container Act,  the whistleblower may request that the Appeals Committee review OSHA’s  decision. This committee will review the file and any other documentation  supplied by the complainant or the regional administrator, and may   (1) return the case for additional investigation, or (2) deny the appeal.
Under the other 14 statutes, either party may generally file an objection to  the Secretary’s findings or preliminary order by requesting a hearing with  Labor’s Office of Administrative Law Judges (see fig. 3). This review is   de novo—it does not take into account the Secretary’s findings from the  OSHA investigation.
Either party may generally appeal the ALJ’s decision to the Administrative  Review Board (ARB). In 1996, the Secretary of Labor delegated authority  to ARB to issue final decisions on whistleblower and other types of cases.  The Secretary’s final decision may, in specific circumstances, be appealed  to the federal courts (see fig. 4).
A whistleblower may potentially obtain relief in many forms. One possible  remedy is an order for reinstatement of the whistleblower to his or her  former position, or an equivalent position. The whistleblower may also be  awarded back pay to make up for the money he or she would have earned  in the absence of retaliation. Additionally, at any time in the whistleblower  complaint process, the whistleblower and his or her employer may enter  into a settlement agreement which ends the process.
section_title: Labor Lacks Reliable Data on Processing Times for the Whistleblower Program
paragraphs: Labor lacks reliable information on processing times and, as a result,  cannot accurately report how long it takes to investigate and close a case  or decide on certain appeals. Processing times reflected in both the OSHA  and the ARB databases differ from actual processing times, and neither  office has systematically verified the accuracy of its data. Moreover, case  files we reviewed showed that some cases exceeded their statutory or  regulatory time frames. Only the OALJ data were reliable, enabling us to  report that the average processing time at the OALJ for cases closed in  fiscal year 2007 was about 9 months. At all three agencies, certain factors,  such as heavy caseloads, case complexity, and accommodating requests  from the parties’ legal counsel, negatively affect case processing times.
subsections: section_title: OSHA Lacks Reliable Data on Timeliness
paragraphs: OSHA is unable to accurately track and report information on complaint  processing times because the data it collects are unreliable. Specifically,  the dates used to measure processing times are often inaccurately  recorded in OSHA’s database or cannot be verified due to a lack of  supporting documentation in the case files. We found a large number of  errors in four of the five regions where we reviewed randomly selected  case files. For example, in at least one-sixth of the cases we reviewed in  three regions, documentation for the dates the cases were opened did not  match information in the database or was missing from files. In one region,  none of the documentation for the dates that the cases were closed  matched the information in the database because this region does not  follow agency policy for determining when the case is closed. In this  region, the case closed date reflects an interim step—the date the  supervisor signed the investigator’s report. However, according to OSHA’s  guidance, the case closed date should match the date OSHA sends a letter  describing the outcome of the investigation to the whistleblower and the  employer.
Moreover, the processing times that some regions reported were  appreciably different than the actual processing times for several of the  cases we reviewed—in some cases, actual processing times were longer  and in others, shorter than they appeared in the database. Cases that had  actual processing times that were longer than they appeared in the  database had case open dates that were as much as 50 days later than the  actual date they were opened or case closed dates as much as 27 days  earlier than the actual dates the cases were closed. Conversely, cases for  which the actual processing times were shorter than they appeared had  case closed dates in the database that were as much as 121 days later than  the actual dates the cases were closed.
These unreliable data undermine OSHA’s efforts to manage the  whistleblower program and ensure the completion of cases within  statutory and regulatory time frames. The Office of Management and  Budget requires that federal agencies establish and maintain internal  controls, in part, to ensure the agency’s compliance with laws and  regulations. As part of this process, agencies are required to ensure that  transactions are processed accurately in their information systems and  that the data are valid and complete. Furthermore, according to the  Government Auditing Standards, managers are responsible for providing  reliable, useful, and timely information for accountability of government  programs and their operations. OSHA does not have an effective  mechanism to ensure that the data are accurately recorded in the system.  There is no requirement that data entered in OSHA’s database be  validated—the decision to do so is left to the regions.  And, although  OSHA has an internal audit program that could help focus efforts on the  data quality, some regions have not conducted audits of their  whistleblower program in recent years. Even when they have, we found  their timeliness data to be unreliable.
Although we cannot report overall processing times for OSHA’s  investigations, in our review of case files we found cases that exceeded  their statutory or regulatory time frames. Furthermore, cases under each  statute revealed a wide range of processing times, regardless of their  statutory or regulatory requirements. Table 2 presents illustrative case  processing times for the files we reviewed under statutes that had 30-, 60-,  or 90-day time frames.
Completion of any one of the three phases of an investigation—opening,  information gathering, or closing—sometimes took longer than the overall  statutory or regulatory time frame for the entire investigation. Figure 5  illustrates the range of days each phase took among the randomly selected  cases we reviewed. In general, investigators who responded to our survey  believe that 30 or 60 days are not sufficient to conduct an investigation.  For example, for cases under the environmental protection statutes and  the Energy Reorganization Act of 1974, the employer is permitted 20 days  after receiving notice of the complaint to submit a written statement. At  this point, the case has nearly reached the 30-day time frame, but the  information gathering and analysis phase has just begun.
OSHA officials also commented that the differences in allowable  processing times between the statutes can undermine efficiency because  investigators are often forced to place a higher priority on completing the  30-day cases, instead of treating each case in the order it is received.
section_title: Caseload Size, Case Complexity, and Involvement of the Parties’ Legal Counsels Hinder Investigators’ Ability to Complete Cases within Required Time Frames
paragraphs: Overall caseload, the amount and complexity of information to gather and  analyze, and involvement of the parties’ counsel affect investigators’ ability  to complete whistleblower investigations within statutory or regulatory  time frames, according to survey respondents. Four-fifths of investigators  who completed our survey reported that the size of their caseloads at least  moderately hindered their ability to complete investigations within these  time frames (see fig 6). In addition, many regional officials we interviewed  confirmed that the caseload affects the timeliness of investigations, citing  the increased number and complexity of statutes and associated training  needs as contributing factors. In general, they reported that investigators  can reasonably manage between 5 and 12 open investigations  concurrently, depending on the types of cases. However, the national  average was 16 open cases per investigator, as of October 2008, with  individual regions ranging from 6 to 35 cases per investigator.
About three-fourths or more of investigators also reported that the amount  and complexity of information that must be collected and the involvement  of the employer’s counsel at least moderately hindered their ability to  complete investigations within statutory or regulatory time frames. In  particular, cases filed under the Sarbanes-Oxley Act, Energy Reorganization  Act, the environmental protection statutes, and the Wendell H. Ford  Aviation Investment and Reform Act for the 21st Century (Aviation  Investment and Reform Act)—all of which have 30-or 60-day statutory time  frames—tend to involve especially complex data and require interviewing  numerous witnesses. In our interviews, officials and investigators cited  Sarbanes-Oxley cases as particularly complex and time-consuming, with  different officials equating the work required for one Sarbanes-Oxley case to  the work required for two to six cases under the Occupational Safety and  Health Act. One official explained that Sarbanes-Oxley cases take the  longest to investigate for several reasons: investigators must learn financial  terminology; the cases tend to require more detailed, often legal, research  with little case precedent; and the employers are often large corporations  that engage a larger contingent of attorneys than do employers in other  types of whistleblower cases. Attorney involvement and settlement  negotiations—which are especially common with Sarbanes-Oxley cases— involve substantial paperwork and processing at various points, such as for  requests for extensions to allow attorneys to conduct their own  investigations. While nearly three-quarters of survey respondents said that  the involvement of the employers’ legal counsel is a factor that hinders  processing times, over half also identified the employee’s counsel as a  factor.
section_title: Reliability of Timeliness Data for Appeals Is Mixed
paragraphs: Depending on the particular appeals process, the available data may not  be reliable enough to allow an assessment of how long the appeals process  takes. Whistleblower appeals may follow two different paths. For three  statutes—the Occupational Safety and Health Act, the Asbestos Hazard  Emergency Response Act of 1986, and the International Safe Container  Act—the whistleblower may request that the OSHA Appeals Committee  review the case. For the other statutes, the whistleblower or the employer  may generally appeal to the OALJ and, ultimately, to ARB.
Appeals to the OSHA Appeals Committee. In contrast to the investigations  processing times data maintained in OSHA’s database, OSHA’s information  about appeals filed with the Appeals Committee is reliable. Processing  times for the 69 appeals completed in fiscal year 2007—all of which were  Occupational Safety and Health cases—ranged from about 2 to 9 months,  with an average of 4 months.
Appeals to the OALJ. Data on the timeliness of OALJ decisions, which  were reliable, showed that OALJ completed 207 cases in fiscal year 2007  with an average of about 9 months per case. Processing times varied  widely across statutes, ranging from as little as 10 days to about 3 years  (see table 3).
The factors that affect the timeliness of OSHA investigations also affect  the length of the OALJ appeals process: the amount and complexity of  evidence, involvement of the parties’ legal counsel, and the judge’s overall  caseload. According to the judges we interviewed, in complex cases, such  as those under Sarbanes-Oxley, Energy Reorganization, and Aviation  Investment and Reform, the discovery and motions phase can last 6  months or more due to the complexity and volume of documents involved.  During the discovery process, at least one party typically requests  extensions, usually to review and respond to the other party’s submitted  documents and to take depositions of witnesses—requiring more time  when lawyers are involved. This phase also involves disputes over  evidence to be entered, and sometimes the judges will have to write  lengthy discovery orders or motions to require opposing parties or outside  parties to cooperate. According to one judge, such disputes occur more  often in whistleblower cases than other types of cases that they hear.  Usually toward the end of the discovery process, parties sometimes  submit a motion for summary judgment—typically requiring a complex  and lengthy motion decision by the judge. If the case is not resolved  through the motions process, the resulting hearing may last a few days or a  few weeks, depending on the number of witnesses and the complexity of  evidence. For example, Sarbanes-Oxley cases typically require expert  witnesses to explain evidence. Judges report that their overall caseload  may increase processing times, especially during the decision phase of the  process. While writing the decision for a complex case may require 1  month of work, it spans several months because of other, ongoing cases.  The judges we interviewed each had from 61 to 115 open cases at the time  of the interview and, although whistleblower cases represent a minority of  the OALJ’s overall caseload, judges report that they take longer to  adjudicate than cases under other statutes.
Appeals to the ARB. In contrast to the OALJ, ARB does not maintain  reliable timeliness data and thus is unable to accurately track and report  information on its processing times. For example, according to ARB  officials, the case closed date in the case tracking database should match  the date of the letter ARB sends to the parties, describing the outcome of  its review. However, for 84 percent of the cases closed in fiscal year 2007,  database information for the case closed date did not match the date of  the letter. Moreover, the case open date is also unreliable because  documentation was either missing or inaccurately recorded in at least 13  percent of the cases. Agency officials noted that the agency lacks written  guidance on recording processing time data and also lacks a database  manager in charge of data integrity. Although ARB tracks processing times  and, according to officials, is working toward shortening them, the agency  cannot accurately report progress on this goal.
Although we cannot report overall processing times for ARB, our case file  review showed that processing times for 109 of the 120 cases closed in  fiscal year 2007 ranged from 1 month to over 5 years (see table 4). While  at least 84 percent of these 109 cases exceeded the statutory or regulatory  time frames, officials explained that a more realistic processing time  would be 6 to 8 months, citing the same factors that affect processing  times at OSHA and the OALJ: caseload, case complexity, and involvement  of the parties’ legal counsel.
section_title: Whistleblowers Received a Favorable Outcome in a Minority of Cases, but OSHA’s Data Somewhat Overstate the Outcomes
paragraphs: Whistleblowers received a favorable outcome in a small proportion of the  complaints that were closed in fiscal year 2007, both in terms of initial  decisions and on appeal, but the actual proportion may be slightly lower  than Labor’s data show. Investigations resulted in a favorable outcome for  whistleblowers in about 21 percent of complaints, according to OSHA’s  data; nearly all of these were settled through a separate settlement  agreement involving the whistleblower and the employer. However, we  found several problems in the way settlements were being recorded in  OSHA’s database—several cases recorded as settled were actually  dismissed by OSHA or withdrawn by the whistleblower and, therefore,  should not have been classified as favoring the whistleblower. When cases  were settled, most often the whistleblower received a monetary payment.   Moreover, many complaints filed by whistleblowers were not investigated,  but were screened out because they were not filed within time frames or  they did not meet the criteria for opening a case. Because these  complaints were never recorded in OSHA’s database, OSHA does not have  a complete picture of its overall investigator workload or the outcomes of  all complaints received. At the appeals level, whistleblowers similarly won  a minority of the cases closed in fiscal year 2007—not more than one-third  of outcomes favored the whistleblower.
subsections: section_title: OSHA’s Data Show That the Whistleblower Received a Favorable Outcome in About One-in- Five Complaints, but the Actual Proportion May Be Slightly Lower
paragraphs: Whistleblowers received a favorable outcome in about 21 percent of  complaints closed in fiscal year 2007, according to OSHA’s data. Out of  more than 1,800 complaints that were closed, most were dismissed by  OSHA or withdrawn by the whistleblower. About two-thirds of all  complaints closed in 2007 were dismissed, and another 14 percent were  withdrawn by whistleblowers. When OSHA dismissed complaints,  information from five regions suggests that it was often because the  available evidence did not show that the employer had violated the  whistleblower provisions. OSHA’s data show that about 21 percent of the  complaints resulted in dispositions favorable to the whistleblower—OSHA  refers to the case as “having merit”— and nearly all of them were settled  through a separate agreement involving the whistleblower and the  employer. OSHA’s policy is to seek settlement of all complaints  determined to have merit prior to referring them for litigation, and about  95 percent of the complaints with merit were settled. Of the remaining 5  percent, or 19 complaints, 12 were sent to Labor’s Solicitor’s Office for  litigation. According to an OSHA official, none of these complaints were  actually litigated, all were dismissed. In the remaining 7 complaints, OSHA  sent Secretary’s findings and orders to the whistleblower and the  employer describing the corrective action that the employer needed to  take.
While OSHA’s data show that 371 complaints were settled in fiscal year  2007, the actual number of complaints settled may be 323. We found  several problems in the way complaints were being recorded in OSHA’s  database. According to OSHA’s procedures, all complaints recorded as  settled should have a written settlement agreement on file signed by the  whistleblower and the employer. However, in 58 of the complaints, OSHA  was unable to provide a signed agreement and, instead, provided the final  OSHA summary report, memoranda to the file, or final decision letters  sent to the whistleblower. In our review of these documents, we found  that several of the complaints that were recorded as settled should have  been recorded as dismissed by OSHA or withdrawn by the whistleblower.  In addition, we were unable to determine the actual outcome of another 25  complaints from the documentation OSHA provided. While these errors  occurred in four different regions, the vast majority came from one region.  (See fig. 7 for a summary of actual outcomes.)
When we adjusted the overall totals from OSHA’s database to account for  these errors, we found that the percentage of cases in which the  whistleblower received a favorable outcome declined slightly, from 21  percent to 19 percent (see table 5). Most of this decline occurred in the  Occupational Safety and Health Act cases.
section_title: Most Settlement Agreements Contained Monetary Payments
paragraphs: Most of the signed settlement agreements we reviewed contained  provisions requiring the employer to provide a payment to the  whistleblower. About 90 percent of the 288 settlement agreements we  reviewed contained some type of payment, including back pay, front pay  (often given in lieu of reinstatement), or other type of payment, such as  compensatory damages or accrued leave. These payments ranged from an  average of $5,288 for Occupational Safety and Health Act complaints to  $133,575 for Sarbanes-Oxley complaints (see table 6).
section_title: Many Whistleblower Complaints Were Not Investigated or Centrally Recorded
paragraphs: While OSHA investigated and closed over 1,800 complaints in fiscal year  2007, many other complaints were dismissed—or “screened out”—without  conducting a full investigation. OSHA procedures provide that complaints  filed under three statutes—the Occupational Safety and Health Act,  Asbestos Hazard Emergency Response Act, and International Safe  Container Act—will be screened out without being docketed for  investigation if they do not meet certain criteria and if the whistleblower  agrees. These criteria are:  (1) the complaint was not filed within  statutory time limits; (2) the case was not within OSHA’s jurisdiction, or  (3) the complaint does not allege a prima facie case. When this occurs,  investigators do not record the complaint in OSHA’s central database  because they are not required to and, according to OSHA officials, the  system’s design does not allow them to record complaints that are never  opened or investigated. While the individual regional offices have begun  tracking their own screen-outs, OSHA currently has no central mechanism  to assess the overall investigators’ workload during the year, or the  outcomes of all complaints received. OSHA officials tell us they are in the  process of designing a new Web-based data system—called the OSHA  Information System, or OIS—that would capture information on screened  out complaints, including the reasons for the screen-out. OSHA expects to  implement the new system in late 2010.
The number of complaints that were screened out in fiscal year 2007  varied widely from region to region, and sometimes exceeded the number  of complaints that the region investigated and closed based on data we  reviewed from the five regions we visited. We found that, for two of the  regions, the number of complaints screened out was higher than the  number investigated and closed during the year and, in two other regions,  the number was much lower (see table 7). In explaining these differences,  officials told us that regions are using different standards to make screen- out decisions--existing criteria on when to screen out cases are not  consistently applied and the current process lacks accountability.
The vast majority of cases that the five regions screened out, where we  could identify the applicable statute, were received under the  Occupational Safety and Health Act—also the statute with the largest  overall number of complaints. According to the regions’ documentation,  the most frequently cited reason for screening out cases was that the  complainant’s allegation did not meet the elements of a prima facie case.  Also, frequently cited reasons included that the complaint was not within  OSHA’s jurisdiction or was not filed within required time frames. Other  reasons included lack of cooperation from the whistleblower and the  whistleblower declined to pursue the complaint. Overall, the five regions  we visited reported that they screened out about 590 cases during fiscal  year 2007, compared with 861 cases that they investigated and closed.
section_title: Whistleblowers Received a Favorable Decision in No More than One-Third of Cases Appealed in Fiscal Year 2007
paragraphs: Across all statutes, whistleblowers received a favorable decision in no more  than about one-third of the cases appealed in fiscal year 2007. As we  reported earlier, the appeals process differs depending on statute. In fiscal  year 2007, the Appeals Committee reviewed 69 appeals under the three  statutes for which it hears appeals and eventually denied 68 of those cases.  In 2007, three of those cases were sent back to the appropriate regions for  reinvestigation and, upon further review by the Appeals Committee, two of  those cases were denied. The remaining case was also sent back to the  region for reinvestigation, but the whistleblower withdrew his complaint  while the case was being reinvestigated (see fig. 8).
For all other statutes, cases may generally be appealed to OALJ and,  ultimately, to ARB. Of the 207 appeals that OALJ reviewed in fiscal year  2007, almost two-thirds were either dismissed by OALJ, or withdrawn by  the whistleblower. About one-third of the cases were settled between the  two parties or found in favor of the whistleblower. In a small portion of  appeals, OALJ did not make a decision within the required time frames,  and the whistleblowers took their case to U.S. District Court. Most of the  cases appealed to the courts were related to the Sarbanes-Oxley Act,  which permits an action to be brought in U.S. District Court if the  Secretary has not issued a decision within 180 days of the filing of the  complaint.  If either party disagrees with OALJ’s decision, it can file an  appeal with ARB (see fig. 9).
When cases were further appealed to the ARB, a small portion was  resolved in favor of the whistleblower, most often through a settlement  agreement. ARB decided 50 appealed cases in fiscal year 2007 and  dismissed or denied about 50 percent of the cases it decided. In four  cases, ARB reversed OALJ’s decision that originally favored the  whistleblower, often citing insufficient evidence showing that the  whistleblower was protected by the act or the employer had taken an  adverse action. ARB decided in favor of the whistleblower in 8 percent of  the complaints, and those resulted in a settlement agreement. (See fig. 10.)
section_title: OSHA Faces Challenges in Ensuring the Quality and Consistency of the Program
paragraphs: OSHA faces two key challenges in administering the whistleblower  program—it lacks a mechanism to adequately ensure the quality and  consistency of investigations, and many investigators report they lack  certain resources they need to do their jobs—including equipment,  training, and legal assistance. OSHA does not routinely conduct  independent audits of the whistleblower program to ensure consistent  application of policies and procedures. OSHA’s new field audit program  has begun to address this need but is lacking in several key areas; in  particular, it does not adequately provide for audit independence or for  accountability in resolving audit findings. With respect to resources, nearly  half of the investigators overall reported that the equipment they have  does not meet the needs of the job, but these equipment needs vary from  region to region.  OSHA has not established minimum standards for  investigator equipment, and we found that the equipment investigators  lack varies from region to region. Furthermore, the majority of  investigators told us that they need more training to effectively address  cases from some of the complex federal statutes that OSHA administers.  For example, between one-third and one-half of investigators responding  to our survey reported that they have not received any specific training on  two of the statutes that OSHA considers most complex—Sarbanes-Oxley  and Aviation Investment and Reform. Moreover, investigators’ lack an  adequate resource of specialized legal expertise on their more complex  statutes.
subsections: section_title: OSHA Has Revised Its Audit Program but Is Not Yet Routinely Conducting Audits of the Whistleblower Program to Ensure Consistent Application of Policies and Procedures
paragraphs: Since 2005, OSHA has taken steps to strengthen its audit program, but  does not routinely conduct audits of the whistleblower program. In 2004,  we recommended that OSHA develop a system to ensure that the regions  complete audits of their programs as required and that OSHA establish a  system for using the audit results to improve the consistency of their  programs and processes. In response, OSHA revised its audit directive,  and an office within OSHA is responsible for overseeing regional audit  activities. The revised audit directive requires regions to perform  comprehensive audits of all programs, including the whistleblower  program, at least once every 4 years, but also requires that they audit some  aspect of their own regional operations each year. Such annual audits may,  for example, focus on a single aspect of a program—possibly the  whistleblower program—or may examine only one of several office  locations in a region. Despite these efforts, we found several areas in  which audit efforts fell short.
Audits of the whistleblower program have not been routinely conducted.  OSHA has not been systematically conducting audits of the whistleblower  program to ensure all regions consistently apply the same policies and  procedures. Since this new directive became effective in 2005, only 6 out  of the 10 regions have completed a limited-focus audit of their  whistleblower program, and none of OSHA’s regions has conducted a  comprehensive audit of the entire program. Officials told us regional audit  teams will begin conducting these audits for all programs in fiscal year  2009. All regions should complete a comprehensive audit by the end of  fiscal year 2009.
Audit guidance is unclear. The current audit directive is unclear and agency  officials expressed conflicting views about the criteria regions must meet in  order to comply with the audit directive. For example, the directive does not  provide specific guidance about what aspects of the whistleblower program  all regions must examine in a comprehensive audit. The guidance is limited to  a sample list of questions auditors may use—but are not required to use—for  either a limited focus or a comprehensive audit. It does not specify which  questions must be answered and does not always provide clear criteria  against which to evaluate performance. For example, one question asks  whether complaints are forwarded to the investigator in a timely manner,  without defining what is meant by timely. Given this lack of clarity, officials  cannot ensure that every region’s whistleblower program is audited using the  same standards and criteria.
Audits lack independence. OSHA’s audit processes do not adequately  provide for independence, an important aspect of an effective audit  program and a key aspect of generally accepted government auditing  standards. Government Auditing Standards describes the criteria for  independence. “The audit organization and the individual auditor, whether government  or public, must be free from personal, external, and organizational  impairments to independence, and must avoid the appearance of such  impairments to independence. Auditors and audit organizations must  maintain independence so that their opinions, findings, conclusions,  judgments, and recommendations will be impartial and viewed as  impartial by objective third parties with knowledge of the relevant  information…. audit organizations must not audit their own work...”
All phases of the audit process are controlled by the regional administrator  whose programs are being audited. Each OSHA regional administrator  appoints regional staff to plan and conduct audits, receives the audit  findings, and takes corrective action. Audit team leaders and members  usually serve on the audit team in addition to their regular duties within  the region; for the purposes of the audits, they report directly to the  regional administrator. Although an official with the audit program told us  that the audit team leader and members should not audit a program on  which they work, the current audit directive does not specifically discuss  the independence of the audit coordinator or team members. An official  acknowledged that regions sometimes appoint staff from within a program  to participate in audits of that program. Regional administrators are also  responsible for deciding how their region will comply with the annual  audit requirement—regions determine the program(s) and/or office  locations to be audited and the scope of those audits. Lacking specific  national guidance regarding comprehensive audits, regions decide the  scope of these as well. This current audit structure raises serious concerns  about OSHA’s ability to ensure the independence and quality of its audits.
Audit process lacks an accountability mechanism for addressing problems  found in audits. Even when audits are performed, there is no process to  ensure full audit findings are shared outside the region, and there is no  mechanism to hold the regions accountable for taking corrective action in  response to audit findings. Audit reports are kept within the region—only a  summary report is shared with the national office of the audit program.  Starting in fiscal year 2008, regions are directed to submit, along with the  audit summary report, a checklist that indicates whether there were findings  and recommendations for the topics that were audited. The national office  may contact regional audit staff to verbally verify that the information on this  checklist is correct. However, neither OSHA’s national office of the audit  program nor the national office of the whistleblower program has the  opportunity to review or follow up on the full findings of audits, or to  systematically monitor whether the region has addressed the problems  identified. The current audit directive directs national office staff to  participate in selected comprehensive audits at least once per quarter, but this  has occurred only three times since 2005.
section_title: Many Whistleblower Investigators Report They Lack the Resources They Need to Do Their Jobs
paragraphs: Another key challenge facing OSHA’s whistleblower program is that many  investigators report they lack essential resources, including basic  equipment, training, and the legal assistance needed to adequately address  their large and complex caseloads.
Basic equipment.  Forty-five percent of the investigators reported that the  equipment they have does not meet the needs of the job, but these  equipment needs vary from region to region. According to OSHA officials,  regional administrators must make key management decisions for the  whistleblower program in their region, including how to allocate resources  among the whistleblower program and the many other OSHA priorities. This  need to balance competing needs against limited resources has led to a  situation in which investigators in some regions lack essential tools.
According to headquarters officials, the program has not established  minimum equipment standards, but all of the program’s investigators should  have laptop computers, portable printers, and cell phones. In addition to  these items, investigators and supervisors told us that docking stations and  digital voice recorders are also useful tools. Since much of the work  investigators do takes place in the field, the availability of high-quality  equipment is critical. Many investigators reported in our survey that Labor  has provided some key equipment. For example, about 70 percent of  investigators reported that Labor has provided them with laptop computers,  and about the same percentage say they have been given digital recorders.  However, about 26 percent of investigators reported needing a portable  printer, and about 13 percent reported needing a laptop computer (see fig.  11). Moreover, specific equipment needs vary greatly from region to region.  For example, in two regions one-half or more of investigators reported  needing portable printers, but in three other regions, none of the  investigators reported this need. Additionally, in four regions, one-half or  more of investigators reported needing docking stations, in four other  regions, none reported needing them.
Lacking essential, up-to-date equipment limits investigators’ ability to  conduct timely investigations. Nearly one-third of all investigators  reported that their equipment or computer software hinders their ability to  complete investigations within statutory or regulatory time frames.  However, this figure varies from region to region—while this was not a  major problem in four regions, for six regions, it ranged from around 30 to  80 percent. Lacking essential equipment can negatively affect  investigators’ work. For example, not having a laptop computer and  portable printer while in the field can cause significant delays in an  investigation. According to investigators, having this equipment is often  key to quickly getting witness statements. It is not uncommon for a  witness to be willing and available to sign a sworn statement directly  following an in-person interview in the field, but to be slow to respond—or  not willing to respond at all—if he or she receives the statement in the  mail. Table 8 provides illustrative examples of how investigators would  use certain essential tools to do their jobs.
Over one-half of investigators reported spending some out-of-pocket funds  on work-related equipment, supplies, or transportation in calendar year  2007, according to our survey. In some cases, this was as little as $75, but,  in two regions, investigators spent as much as $2,000 of their own money.  Some investigators said they purchased basic equipment, such as a laptop  computer or a printer, with their own money, either because they have not  been supplied such equipment by the agency, or because the equipment  the agency provided is of insufficient quality. In one instance, an  investigator who was preparing to attend the mandatory 2-week  investigator training course learned that the course required participants  to bring laptops with operating systems that were compatible with the  software being used for the course. Lacking this, the investigator used his  or her own money to buy a laptop with a compatible operating system. In  three regions, nearly all investigators reported that they had been issued a  government-funded cell phone but, in four other regions, all of the  investigators reported they have not. Most investigators in these four  regions reported using personal cell phones to conduct official business.  Some investigators report that they are not reimbursed for the cost of  using personal cell phones.
Training and legal resources for complex cases. Whistleblower  investigators reported that they need more training to address their  complex cases. For example, between one-third and one-half of  investigators responding to our survey reported that they have not  received any specific training on two of the statutes that OSHA considers  most complex—Sarbanes-Oxley and the Aviation Investment and Reform  Act. Overall, 40 percent of investigators reported in our survey that a lack  of training hinders their ability to complete investigations within required  time frames; in five regions, it was one-half or more of investigators.  Furthermore, OSHA officials and several supervisors told us that  budgetary constraints have prevented most investigators from receiving  training. All investigators are required to complete a 2-week basic  whistleblower investigations training course that focuses on complaints  filed under the Occupational Safety and Health Act; but, investigators and  supervisors told us, and OSHA officials have acknowledged, that  investigators need additional training that goes beyond the topics covered  in the 2-week course. For example, nearly three-quarters of investigators  ranked the Sarbanes-Oxley Act as the statute on which they most need  additional training in order to improve their ability to effectively do their  jobs. In particular, supervisors and investigators stressed the need for  training on the scope of protected activities covered by the Act. The  national office, together with a curriculum development team, has recently  redesigned the mandatory basic training course to include, among other  changes, training on all of the federal statutes OSHA administers, but the  national office does not control the training budget for regional  investigators. Twenty-four whistleblower investigators and supervisors  were able to take the course in June 2008; while another session has been  scheduled, it is unclear whether all investigators will be able to receive  this training. OSHA officials recognize the need for more investigators to  receive training, but regional budgetary constraints may limit  participation.
Additionally, investigators do not consistently receive the legal assistance  they need to conduct high-quality investigations. Investigators in many  OSHA regions are able to draw on the legal expertise of their region’s  Solicitor’s Office. In addition, officials and supervisors report that OSHA’s  national Whistleblower Protection Program office frequently offers  technical assistance on complex cases. However, the specialized  knowledge required for some of the statutes does not readily exist within  Labor, in part, because the agency does not administer the substantive  provisions of most of the statutes. Moreover, some of the newer, more  complex statutes have limited case law to guide decision making. As a  result, investigators sometimes have difficulty getting the legal advice they  need to help them with the complex issues they frequently encounter over  the course of investigating cases. Officials and supervisors told us that the  Sarbanes-Oxley Act is the statute on which specialized legal assistance is  most often needed, although other statutes also involve complex legal  matters, for example, the Aviation Investment and Reform Act. Sarbanes- Oxley cases in particular often require investigators to analyze evidence  that is difficult and highly technical—for example, investigators must  analyze laws and regulations pertaining to securities transactions. Several  supervisors report that the national office and their region’s solicitor’s  office are sometimes good sources of assistance on such matters, but that  neither is consistently able to quickly answer important questions about  specific, complex legal issues. Supervisory investigators in several regions  expressed concern that the lack of such legal assistance may be adversely  affecting the quality and timeliness of the decisions investigators make.
section_title: Conclusion
paragraphs: The whistleblower program is intended to provide non-federal workers  with protection from retaliatory actions when they identify prohibited  practices at their employers’ businesses. Twenty years ago, we found that  OSHA lacked adequate internal controls to ensure that criteria and  standards for investigating whistleblower complaints were consistently  followed. Since then, little has been done to ensure that OSHA—and  ARB—have the accurate and complete data they need to manage and  oversee the program.  No effort has been made to validate the accuracy or  the timeliness of the data.  Having such data is a necessary first step in  determining whether the program is meeting required statutory and  regulatory time frames for responding to whistleblowers’ complaints, and,  if it is not, in assessing the reasonableness of those time frames.   Furthermore, because many complaints are screened out and never  recorded in OSHA’s database, it has an incomplete picture of how many  complaints it receives and of their ultimate outcomes, and it cannot ensure  that screen-out decisions are made using consistent criteria.
As in the past, OSHA is focusing too little attention on developing the  accountability framework it needs to ensure that criteria and standards for  investigating complaints are consistently followed.  Audits are central to  any internal control and accountability process and, while some progress  has been made to enhance its audit program, more needs to be done to  bring it in line with government auditing standards.  Current guidance for  conducting audits lacks the detail and clarity needed to ensure that the  audits achieve the intended results on a consistent basis across regions.   Even with clearer guidance, OSHA’s audit program lacks the  independence necessary for an objective review of the regions’ activities  and provides too little opportunity for accountability when follow-up is  needed.  Without sufficient internal controls and an appropriate  accountability mechanism, the whistleblower program lacks key  components of good program management and does not have the  oversight tools it needs to ensure it is meeting its mission. Moreover,  lacking this oversight and accountability, OSHA will be hampered in its  ability to ensure the quality and consistency of investigations, as well as  the validity of the outcomes.
Whistleblower investigators continue to be challenged in their efforts to meet  statutory and regulatory time frames.  In the years since our last review, they  have been entrusted with the responsibility of protecting from retaliation many  more employees who blow the whistle—employees from industries as diverse  as trucking, energy, aviation, and securities.  With these new responsibilities  have come increased job complexity, but OSHA has struggled to provide  investigators with the skills and resources they need to effectively do their jobs.   Fully implementing the new standardized training on the complex issues that  investigators confront and establishing minimum standards for the equipment  they need are important first steps in helping ensure the program meets its  goals. We recognize that OSHA faces significant resource constraints, and the  decision to provide this additional support will be challenging.  But, resources  such as these can facilitate investigators’ ability to address the many new  complaints filed by whistleblowers and to meet the required time frames for  processing them.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the Secretary of Labor take the following eight  actions:  In order to ensure the quality and consistency of the whistleblower  program and to ensure that OSHA has reliable information to use to  monitor the program, we recommend that the Secretary of Labor direct  the Assistant Secretary of OSHA to take the following actions:    Ensure that its new information system for tracking whistleblower  complaints includes information on cases that are screened-out before  they are investigated and the reasons for being screened-out.
Establish a mechanism to ensure the data on whistleblower complaints  are accurate and require that the National Office of the Whistleblower  Protection Program holds regions accountable for the accuracy of the  data.
Revise its field audit directive to:    clarify the criteria that regions must use in conducting focused and  comprehensive audits.  require that the audit be conducted by an entity outside the control  of the regional administrator whose programs are being audited to  ensure independence, and  require that regions submit complete reports of the audit findings  and recommendations to OSHA’s national office upon completion of  an audit, along with periodic updates on corrective actions taken.
Develop interim audit milestones that regions must meet in order to  ensure that audits are completed within specified time frames.
In order to ensure that all investigators have the necessary equipment and  computer software resources, we also recommend the Secretary of Labor  direct the Assistant Secretary of OSHA to establish minimum standards for  equipment and computer software that investigators need to do their jobs,  and develop a mechanism to ensure these needs are met .
We further recommend that the Secretary of Labor direct the ARB to  conduct routine, systematic, independent reviews of its case tracking  system in order to ensure that it has accurate and reliable information to  use to monitor the program.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to Labor for review and comment.  OSHA, OALJ, and ARB commented separately. In its comments, OSHA  generally agreed with our findings, but disagreed with one of our  recommendations. The agency acknowledged that there is room for  improvement in OSHA’s processing of whistleblower complaints, but it  expressed concerns that we did not take into account the program’s  resource constraints when developing our findings and recommendations.  In our report, we have noted that, due to the addition of several new  statutes, investigators are carrying larger, more complex caseloads.  However, given that the program has no budget of its own, decisions on  how to allocate staffing or other resources among the various OSHA  programs are within the agency’s control and discretion. Evaluating these  resource allocation issues was beyond the scope of this engagement. As  already reflected in our report, OSHA noted the steps it has taken to  improve its training curriculum for investigators, citing January 2009 as  the date for the next training session. However, in its comments, officials  did not discuss plans for ensuring that all investigators are able to attend  this training. In addition, officials commented that we failed to take into  account the impact on overall efficiency of having statutory processing  time frames that vary from 30 to 90 days. We have modified our report to  reflect that point. Finally, OSHA disagreed with the need for our draft  recommendation to ensure that audits of the program are completed,  citing its expectation that all 10 regional offices will have completed on- site audits during fiscal year 2009. Because audits of the whistleblower  program have not been routinely conducted, we revised the  recommendation, clarifying that the agency should focus its efforts on  developing interim milestones to ensure that audits of the program are  completed within time frames. In so doing, we reiterate the importance of  timely, independent audits in ensuring that policies and procedures for  conducting investigations are consistently applied.
In its comments, ARB agreed that the data in its tracking system should be  accurate and acknowledged that there is always room for improvement;  however, officials contend that existing internal controls are appropriate  for managing the board’s docket. ARB commented that it has taken steps  to improve the system, but did not provide specific information on what  steps those were. In defending its position, ARB listed additional reports  that it uses in conjunction with the case tracking system to monitor  performance. In our view, even if the case tracking system is but one  component of its efforts to manage the docket, it must be accurate. Given  the magnitude of the errors we found in ARB’s case tracking system, we  disagree that existing internal controls are sufficient and continue to stress  the need for improvement. ARB also commented that it appreciates our  recommendations for continued improvements to the tracking system, but  did not provide information on the specific steps it would take in  response.
OSHA and OALJ provided technical comments which we incorporated  where appropriate.  Labor’s entire comments are reproduced in appendix  IV.
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section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: The objectives for this engagement were to determine (1) what is known  about the processing times for claims under the whistleblower statutes  that the Department of Labor (Labor) administers and the factors that  affect processing times, (2) what the outcomes were of those complaints,  and (3) what key challenges Labor’s Occupational Safety and Health  Administration (OSHA) faces in administering the program.
subsections: section_title: Objective 1: Processing Times
paragraphs: To determine what is known about processing times, we obtained and  tested the reliability of databases on key information about  whistleblowers’ cases from OSHA, the Office of Administrative Law  Judges (OALJ) and the Administrative Review Board (ARB). To assess the  reliability of OSHA’s database—the Integrated Management Information  System (IMIS), we conducted file reviews at two regional offices and  found the data to be unreliable for reporting processing times agencywide.  We then adopted a case study approach and conducted case file reviews in  three more regions to provide additional evidence about data reliability  and examples of actual case processing times. In all, we visited 5 of  OSHA’s 10 regions: Region 2 in New York City, Region 3 in Philadelphia,  Region 4 in Atlanta, Region 8 in Denver, and Region 10 in Seattle. We  selected these locations to give us a mix of case volumes (high and low),  regions with and without state-based occupational safety and health  programs, and to provide geographic dispersion. To select cases for our  case studies, we created lists of cases closed in fiscal year 2007 and  identified the 10 shortest, 10 longest, and 10 median-length cases within  each region and type of case. We then randomized the cases within each  subgroup and reviewed the first case on each list. Because we selected  nonprobability samples of regions to visit and cases to review, the  information we obtained at these locations may not be generalized across  all OSHA regions. However, because we selected these regions based on  geographic location and volume of cases investigated in each region, and  because we selected a stratified random sample of cases, the information  we gathered at these locations provided us with an understanding of  OSHA’s whistleblower program operations. We limited our analysis to  cases closed in fiscal year 2007 because OSHA had archived off-site the  files for many of the cases closed in earlier years.
To provide examples of processing times, we analyzed the short and long  environmental protection, Sarbanes-Oxley, and Occupational Safety and  Health cases we reviewed in three regions. We chose these case types  because, with regard to the Secretary’s deadline for making initial findings,  environmental protection cases have the shortest time frame of 30 days,  Sarbanes-Oxley cases have a 60-day time frame, and Occupational Safety and  Health cases have the longest time frame of 90 days. We also identified three  phases of an investigation: opening, information gathering and analysis, and  closing. The opening stage of a case refers to the time from which OSHA  receives a case to the investigator’s first contact with the complainant or  respondent. The information gathering and analysis phase begins the  following day and ends when the investigator completes an internal report,  called the Final Investigative Report. The closing phase begins the following  day and ends when OSHA mails determination letters to the parties.
To describe factors that affect processing times at OSHA, we interviewed  OSHA officials and supervisory investigators in all 10 regions, and we  interviewed investigators in the five regions we visited. To gather  information about investigators’ jobs, we designed and implemented a  Web-based survey. (See below for more information about the survey.)
To assess the reliability of processing times data for the 207 cases OALJ  closed in fiscal year 2007, we obtained a copy of the database and  reviewed case files of 10 cases completed in six district offices, 8 cases in  one district office, and reviewed 20 cases in the national office. We  determined that the data were reliable for reporting processing times  across the agency. To describe factors that affect processing times at  OALJ, we interviewed eight Administrative Law Judges.
To assess the reliability of the processing times data for ARB, we obtained  a copy of the database and reviewed the case files of cases closed in fiscal  year 2007. We determined that the data were unreliable and consequently  conducted a comprehensive case file review of all 120 cases ARB closed in  fiscal year 2007. For 11 of the 120 cases, documentation in the files was  insufficient to determine processing times. To describe factors that affect  processing times at ARB, we interviewed board members and staff  attorneys. We also reviewed pertinent documents and interviewed agency  officials from the OSHA, OALJ, and ARB.
section_title: Objective 2: Outcomes
paragraphs: To determine the whistleblower decisions made by OSHA, we analyzed  outcomes reported in OSHA’s Integrated Management Information System and  found that the outcome variables were reliable for selected data elements–cases  dismissed and withdrawn. To test the reliability of these data, we reviewed a  sample of case files for the five OSHA regional offices visited and obtained  documents from randomly selected cases from the other five OSHA regional  offices. Our testing determined that decisions related to complaints dismissed  and withdrawn were accurately recorded in the database. For OSHA cases that  were settled, we requested documentation for all settlements that occurred in  fiscal year 2007 and manually reviewed and analyzed this documentation. We  found several errors in the database related to recorded settlement information.  When we adjusted settlement outcomes based on the documentation we  obtained, we confirmed our decision with OSHA officials. Despite the database  errors in recording settlements, we concluded that our testing had accurately  assessed that information on cases dismissed and withdrawn was correct. To  arrive at this conclusion, we took into account (1) the higher likelihood that we  would have detected errors in cases dismissed and withdrawn due to its higher  occurrence in the population and (2) the contents of settlement documents  tended to be more nuanced than the documentation related to cases dismissed or  withdrawn and, therefore, more likely to have errors. For the cases screened out  by OSHA, we obtained documentation for cases screened out in fiscal year 2007  from the five OSHA regional offices we visited. Because this information is not  maintained in a centralized database, we had to manually collect and analyze this  information. For the OALJ and ARB, their databases did not contain information  on outcomes, so we manually reviewed all of the cases decided in fiscal year  2007. Due to the time required to manually review whistleblower case decisions,  we focused our efforts on cases decided during the most recently completed  year, fiscal year 2007.
section_title: Objective 3: Challenges
paragraphs: To identify the key challenges facing OSHA, we designed and implemented  a Web-based survey to gather information on various aspects of the  investigators’ jobs, and we interviewed key officials. Our survey  population consisted of all OSHA whistleblower investigators across all 10  OSHA regions. The response rate for this survey was 86 percent, with 60  out of a possible 70 respondents completing the survey. The survey asked  a combination of questions that allowed for open-ended and close-ended  responses. Because of potential variation in the investigators’ backgrounds  and years with the program, the instrument was designed so that  investigators were asked to comment only on those questions which were  directly applicable to them. Therefore, the number of survey respondents  for some questions varied, depending on the relevance of the question to  each investigator. We pretested the content and format of the  questionnaire with two investigators. In addition, we asked a program  official to review it for clarity of language and question flow. During the  pretests, we asked questions to determine whether (1) the survey  questions were clear, (2) the terms we used were precise, (3) the  questionnaire did not place an undue burden on the respondents, and (4)  the questions were unbiased. We also assessed the usability of the Web- based format. We received input on the survey and made changes to the  content and format of the final questionnaire based on our pretest results.
The survey was conducted using self-administered electronic  questionnaires posted on the Web. We sent e-mail notifications to  investigators beginning on February 26, 2008. We then sent each potential  respondent a unique password and user name by e-mail to ensure that only  members of the target population could participate in the appropriate  survey, and we activated the survey on February 27, 2008. To encourage  respondents to complete the questionnaire, we sent e-mail messages to  prompt each nonrespondent approximately 2 weeks and 3 weeks after the  initial e-mail message. We also made follow-up phone calls to potential  respondents from March 20, 2008 to March 26, 2008. We closed the survey  on March 27, 2008, obtaining an 86 percent response rate. Because we  attempted to collect data from every investigator in the population, there  was no sampling error. However, the practical difficulties of conducting  any survey may introduce errors, commonly referred to as nonsampling  errors. For example, differences in how a particular question is  interpreted, the sources of information available to respondents, how the  responses were processed and analyzed, or the types of people who do not  respond can influence the accuracy of the survey results. We took steps in  the development of the survey, the data collection, and the data analysis to  minimize these nonsampling errors and help ensure the accuracy of the  answers that were obtained. For example, a social science survey  specialist designed the questionnaire, in collaboration with GAO staff with  subject matter expertise. Then, as noted earlier, the draft questionnaire  was pretested to ensure that questions were relevant, clearly stated, and  easy to comprehend. The questionnaire was also reviewed by an additional  GAO survey specialist.  Data analysis was conducted by a GAO data  analyst working directly with GAO staff with subject matter expertise. A  second, independent analyst checked all of the computer programs for  accuracy.  Since this was a Web-based survey, respondents entered their  answers directly into electronic questionnaires.  This eliminated the need  to have data keyed into databases, thus removing an additional source of  error. To obtain additional perspectives on the challenges OSHA faces in  administering the whistleblower program, we interviewed key OSHA  officials in headquarters and in all 10 regional offices.
In our work, we did not assess the adequacy of investigator staffing levels for  meeting current workloads, nor did we assess the quality of the investigations  or the appropriateness of whistleblower outcomes at either the investigation  or the appeals levels because these aspects were beyond the scope of the  current engagement. We conducted this performance audit between  October 2007 and January 2009, 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.
section_title: Appendix II: OSHA’s 17 Statutes and Their Provisions
paragraphs: The Department of Labor (Labor) is responsible for administering the  whistleblower protection provisions of many different federal statutes.   For 17 of these whistleblower provisions, Labor’s Occupational Safety and  Health Administration (OSHA) initially investigates any alleged violations.  The majority of the statutory whistleblower protections are supplemented  by regulations that further clarify and set forth specific requirements for  the whistleblower protection process in the private sector. Such processes  often include 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. The following tables are based on both the statutes and the  regulations and describe the major steps in this process, as well as the  potential remedies. Tables 9 and 10 describe Labor’s investigative and  findings process; tables 11 and 12 describe the appeal process for  whistleblowers’ complaints; tables 13 and 14 describe the litigation  process that may take place in U.S. courts; and table 15 describes the  whistleblowers' potential remedies from adverse personnel actions.  It  should also be noted that at any time, the whistleblower can enter into a  settlement agreement which would end the process.
subsections: section_title: Labor’s Investigation and Findings Process
paragraphs: When a whistleblower believes he or she has been retaliated against in  some manner and desires relief, the first step he or she must take is filing a  complaint with Labor. The complainant initiates a process whereby the  Secretary of Labor, through various OSHA investigators, conducts an  investigation of the alleged retaliation. After the investigation is complete,  the Secretary makes initial findings. The initial findings may be  accompanied by a preliminary order, in which the Secretary orders the  parties to comply with various remedial requirements. As shown below,  and in tables 9-15, with one exception, the 17 statutes—other than the  whistleblower provisions—are primarily administered by other federal  agencies such as the Department of Transportation and the Environmental  Protection Agency.  The highlighted federal agencies shown in the tables  are the program agencies primarily responsible for administering the non- whistleblower provisions of the 17 statutes.
section_title: Administrative Appeals Process for Whistleblower Complaints
paragraphs: If a party is not satisfied with the Secretary’s initial findings or preliminary  order, in most instances the party may seek an appeal through Labor’s  administrative appeals process. An adversely affected party may generally  file an appeal with Labor’s OALJ. Once this appeal is filed, an ALJ generally  holds a hearing and, after reviewing the evidence, issues a decision. A party  adversely affected by the ALJ’s decision may appeal the matter to the final  level in the administrative appeals process: the ARB. The ARB reviews the  ALJ’s decision, and the decision made by the ARB serves as the final  decision of the Secretary of Labor. After that point, there are no further  administrative appeals within Labor.
However, the International Safe Container Act, the Asbestos Hazard  Emergency Response Act, and the Occupational Safety and Health Act do  not provide an administrative appeals process through OALJ and ARB. For  cases that are found to have merit, the Secretary of Labor can bring an  action for judicial relief in U.S. District Court.
section_title: Litigation Process through the U.S. Courts
paragraphs: In certain situations, a case may go beyond the Labor’s administrative  appeals process, with legal action being brought in U.S. District Court or a  U.S. Court of Appeals. The Secretary of Labor may have the authority to  bring a legal action in U.S. District Court in two types of situations. First,  for two of the whistleblower provisions, the Secretary is required to bring  legal action once he or she determines that a violation of whistleblower  provisions has occurred and, for one provision, the Secretary has the  option of deciding whether to bring an action. Second, the Secretary may  have the authority to bring such a legal action in U.S. District Court if a  party fails to comply with the Secretary’s preliminary order. In these cases,  the Secretary shall (as required by law), or may (at the Secretary’s  discretion), depending on the provision, bring an action to force  compliance with the order.
In some situations, a party may have a right to bring an action in U.S.  District Court or a U.S. Court of Appeals. Under many whistleblower  provisions, a party may bring an action to enforce the Secretary of Labor’s  order against another party who is not in compliance with that order.  Some provisions allow an action to be brought if there has been no final  decision via the administrative appeals process within a certain amount of  time. One provision permits the parties to bring an action in order to  review the final order of ARB. Finally, for certain whistleblower  provisions, a party may take an action directly to a U.S. Court of Appeals  to review the final decision of ARB.
section_title: Whistleblowers’ Available Remedies
paragraphs: Throughout the process, a whistleblower can obtain relief in many  forms. The most basic remedy is an order for the employer to abate,  or cease, the violation. For example, if a whistleblower is receiving a  lesser amount of compensation as a result of an inappropriate  retaliation, an order of abatement would ensure that the  whistleblower begins receiving his or her pre-retaliation amount of  compensation. These statutes also allow the possibility of  reinstatement of the whistleblower, either at his or her former  position, or an equivalent position. The whistleblower may also be  awarded back pay to make up for the money he or she would have  earned in the absence of retaliation. In many cases, the  whistleblower may receive the reasonable costs and expenses of  bringing and pursuing the complaint. In addition, a prevailing  whistleblower may get compensatory damages, which are intended  to compensate for damages suffered. Some of the statutes include  provisions whereby the whistleblower may be awarded monetary  punitive damages on top of the other remedies provided.
section_title: Appendix III: Anti-Retaliation Provisions Enforced by Labor Agencies Other Than OSHA
paragraphs: In addition to the 17 statutes administered by OSHA, Labor has other  statutes with anti-retaliation provisions administered by other Labor  agencies. Agencies such as the Mine Safety and Health Administration and  Veterans’ Employment and Training Services are responsible for  investigating anti-retaliation allegations that are protected by these  statutes. Table 16 shows the non-OSHA agencies, the relevant statutes and  regulations, and some of the protected activities under these statutes and  regulations.
section_title: Appendix IV: Comments from the U.S. Department of Labor
section_title: Appendix V: GAO Contact and Staff Acknowledgments
subsections: section_title: Acknowledgments
paragraphs: Dianne Blank, Assistant Director   Richard Harada, Analyst-in-Charge  Jennifer Cook, Rebecca Yurman, and Lerone Reid made significant  contributions to all aspects of this report. Alex Galuten provided legal  support; and Jay Smale, Stuart Kaufman, and Jerry Sandau assisted with  design, methodology, and data analysis. In addition, Jessica Orr and  Rachel Valliere provided writing assistance, and Lise Levie, Brittni Milam,  Charlie Willson, and Rebecca Woiwode verified our findings.
section_title: Related GAO Products
paragraphs: Government Auditing Standards, January 2007 Revision.   GAO-07-162G. Washington, D.C.: January 31, 2007.
Workplace Safety and Health: OSHA’s Oversight of Its Civil Penalty  Determination and Violation Abatement Processes Has Limitations.  GAO-04-920. Washington, D.C.: August 13, 2004.
OSHA’s Complaint Response Policies: OSHA Credits Its Complaint  System with Conserving Agency Resources, but the System Still  Warrants Improvement. GAO-04-658. Washington, D.C.: June 18, 2004.
Whistleblowers: Management of the Program to Protect Trucking  Company Employees Against Reprisal. GAO/GGD-88-123. Washington,  D.C.: September 22,1988.