Whistleblower Protection Program:

Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency

GAO-09-106: Published: Jan 27, 2009. Publicly Released: Feb 26, 2009.

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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.

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.

Status Legend:

More Info
  • Review Pending-GAO has not yet assessed implementation status.
  • Open-Actions to satisfy the intent of the recommendation have not been taken or are being planned, or actions that partially satisfy the intent of the recommendation have been taken.
  • Closed-implemented-Actions that satisfy the intent of the recommendation have been taken.
  • Closed-not implemented-While the intent of the recommendation has not been satisfied, time or circumstances have rendered the recommendation invalid.
    • Review Pending
    • Open
    • Closed - implemented
    • Closed - not implemented

    Recommendations for Executive Action

    Recommendation: In order to ensure that all investigators have the necessary equipment and computer software resources, the Secretary of Labor should 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 .

    Agency Affected: Department of Labor

    Status: Closed - Not Implemented

    Comments: OSHA completed its purchase of new laptops for all agency staff, including whistleblower staff, in fiscal year 2012. However, OSHA has not yet established minimum standards for equipment and computer software that investigators need to do their jobs.

    Recommendation: 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, the Secretary of Labor should direct the Assistant Secretary of OSHA to develop interim audit milestones that regions must meet in order to ensure that audits are completed within specified time frames.

    Agency Affected: Department of Labor

    Status: Closed - Not Implemented

    Comments: In September 2010, OSHA revised its field audit directive such that the regions are required to notify the national audit office immediately after an audit opening conference has occurred. However, OSHA has not yet developed interim audit milestones that the auditors must meet in order to ensure that the audits are completed in specified time frames.

    Recommendation: 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, the Secretary of Labor should direct the Assistant Secretary of OSHA to revise its field audit directive to 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.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: In September 2010, OSHA revised its field audit directive to require the regions to submit complete audit reports and, if applicable, corrective action plans - including interim steps taken - for national audit office review.

    Recommendation: 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, the Secretary of Labor should direct the Assistant Secretary of OSHA to revise its field audit directive to require that the audit be conducted by an entity outside the control of the regional administrator whose programs are being audited to ensure independence.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: In September 2010, OSHA issued a revised field audit directive that established that the Directorate of Evaluation and Analysis (DEA), an entity outside of the control of the regional administrator whose programs are being audited, will participate in all comprehensive, on-site audits of regional offices and in selected area office audits. GAO notes however, that because comprehensive, on-site audits of regional offices are not required and because it is unclear which, if any, area office audits will be selected for such reviews, the extent to which future audits will be conducted by an independent entity remains unclear.

    Recommendation: 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, the Secretary of Labor should direct the Assistant Secretary of OSHA to revise its field audit directive to clarify the criteria that regions must use in conducting focused and comprehensive audits.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: The criteria against which the Regional and Area Office whistleblower programs are audited is OSHA Instruction CPL 02-03-003, OSHA's Whistleblower Investigations Manual dated September 20, 2011.

    Recommendation: 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, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: OSHA redesigned its Integrated Management Information System (IMIS) system to allow users to track screened-out cases and the status of complaints. The correct entry of data is part of OSHA's September 2011 Whistleblower Investigations Manual.

    Recommendation: 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, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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.

    Agency Affected: Department of Labor

    Status: Closed - Implemented

    Comments: In October 2010, OSHA revised its information database to include a field for recording the number of screen-out whistleblower complaint cases, and case-specific reasons. In the same month, OSHA provided training to its users on this new feature.

    Recommendation: The Secretary of Labor should 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 Affected: Department of Labor

    Status: Closed - Not Implemented

    Comments: The Administrative Review Board's (ARB) new docket system has data validation rules, ad hoc reporting functionality and audit trails for data recovery, but the ARB has not conducted independent reviews of its case tracking system.

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