Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency
Released: 2009-02-26T00:00:00

Letter

Background

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.

Labor Lacks Reliable Data on Processing Times for the Whistleblower Program

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.

OSHA Lacks Reliable Data on Timeliness

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.

Caseload Size, Case Complexity, and Involvement of the Parties’ Legal Counsels Hinder Investigators’ Ability to Complete Cases within Required Time Frames

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.

Reliability of Timeliness Data for Appeals Is Mixed

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.

Whistleblowers Received a Favorable Outcome in a Minority of Cases, but OSHA’s Data Somewhat Overstate the Outcomes

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.

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

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.

Most Settlement Agreements Contained Monetary Payments

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).

Many Whistleblower Complaints Were Not Investigated or Centrally Recorded

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.

Whistleblowers Received a Favorable Decision in No More than One-Third of Cases Appealed in Fiscal Year 2007

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.)

OSHA Faces Challenges in Ensuring the Quality and Consistency of the Program

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.

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

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.

Many Whistleblower Investigators Report They Lack the Resources They Need to Do Their Jobs

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.

Conclusion

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.

Recommendations for Executive Action

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.

Agency Comments and Our Evaluation

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.

As agreed with your offices, unless you publicly announce the contents of this report earlier, we plan no further distribution until 30 days from the report date. At that time, we will send copies to the Secretary of Labor, relevant congressional committees, and other interested parties. The report will also be available at no charge on the GAO Web site at http://www.gao.gov.

If you or your staff have any questions about this report, please contact me at (202) 512-7215 or at scottg@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Other contacts and staff acknowldgments are listed in appendix V. A list of related GAO products is included at the end of this report.

Appendix I: Objectives, Scope, and Methodology

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.

Objective 1: Processing Times

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.

Objective 2: Outcomes

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.

Objective 3: Challenges

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.

Appendix II: OSHA’s 17 Statutes and Their Provisions

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.

Labor’s Investigation and Findings Process

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.

Administrative Appeals Process for Whistleblower Complaints

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.

Litigation Process through the U.S. Courts

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.

Whistleblowers’ Available Remedies

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.

Appendix III: Anti-Retaliation Provisions Enforced by Labor Agencies Other Than OSHA

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.

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

Appendix V: GAO Contact and Staff Acknowledgments

Acknowledgments

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.

Related GAO Products

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.