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Report to Congressional Requesters: 

United States Government Accountability Office: 
GAO: 

January 2009: 

Whistleblower Protection Program: 

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

GAO-09-106: 

GAO Highlights: 

Highlights of GAO-09-106, a report to congressional requesters. 

Why GAO Did This Study: 

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. 

What GAO Found: 

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. 

What GAO Recommends: 

GAO recommends that Labor take a number of steps to improve the 
accuracy of its data and enhance program oversight. OSHA questioned the 
need for the recommendation to ensure that audits of the program are 
completed. GAO clarified the recommendation to focus on developing 
interim milestones to ensure timely completion. ARB agreed with the 
need for accurate appeals data, and commented that it appreciates GAO’s 
recommendation for improving the data. However, it did not provide 
specific information on the steps it would take in response. 

To view the full product, including the scope and methodology, click on 
[hyperlink, http://www.gao.gov/products/GAO-09-106]. For more 
information, contact George A. Scott, (202) 512-7215 or scottg@gao.gov. 

[End of section] 

Contents: 

Letter: 

Results in Brief: 

Background: 

Labor Lacks Reliable Data on Processing Times for the Whistleblower 
Program: 

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

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

Conclusion: 

Recommendations for Executive Action: 

Agency Comments and Our Evaluation: 

Appendix I: Objectives, Scope, and Methodology: 

Appendix II: OSHA's 17 Statutes and Their Provisions: 

Labor's Investigation and Findings Process: 

Administrative Appeals Process for Whistleblower Complaints: 

Litigation Process through the U.S. Courts: 

Whistleblowers' Available Remedies: 

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

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

Appendix V: GAO Contact and Staff Acknowledgments: 

Related GAO Products: 

Tables: 

Table 1: Statutes Included in OSHA's Whistleblower Protection Program: 

Table 2: Processing Times for 20 Selected Cases We Reviewed: 

Table 3: Processing Times of OALJ Cases Closed in Fiscal Year 2007 by 
Statute: 

Table 4: Processing Times for 109 of 120 Cases the ARB Closed in Fiscal 
Year 2007: 

Table 5: Adjusted Outcomes of Investigations by Statute, Fiscal Year 
2007: 

Table 6: Number of Settlement Agreement Payments and Selected Amounts 
by Statute, Complaints Settled in Fiscal Year 2007: 

Table 7: Fiscal Year 2007 Investigated and Closed Cases and Screen-Outs 
for Five Regional Offices: 

Table 8: Key and Useful Equipment for Investigators and Examples of 
Their Functions for Investigating Whistleblower Claims: 

Table 9: Initial Filing of the Complaint: 

Table 10: Secretary's Actions After the Complaint is Made: 

Table 11: Administrative Law Judge Appeals Process: 

Table 12: Administrative Review Board Appeals Process: 

Table 13: Parties Bringing an Action in U.S. District Court: 

Table 14: Actions Brought by the Secretary in U.S. District Court and 
by the Parties to Review the ARB Decision: 

Table 15: Whistleblowers' Available Remedies: 

Table 16: Labor Agencies With Anti-Retaliation Provisions: 

Figures: 

Figure 1: OSHA's 10 Regions: 

Figure 2: OSHA's Whistleblower Investigation Process: 

Figure 3: Hearing Process at OALJ: 

Figure 4: Review Process at ARB: 

Figure 5: Range of Days for Each Phase of Nine Selected Case Studies: 

Figure 6: Certain Factors Hinder Investigators' Ability to Complete 
Investigations within Required Time frames: 

Figure 7: Outcomes for OSHA's Whistleblower Investigations Closed in 
Fiscal Year 2007: 

Figure 8: Outcomes for Cases Appealed to the OSHA Appeals Committee and 
Closed in Fiscal Year 2007: 

Figure 9: Outcomes for Cases Appealed to OALJ and Closed in Fiscal Year 
2007: 

Figure 10: Outcomes for Cases Appealed to the ARB and Closed in Fiscal 
Year 2007: 

Figure 11: Key and Useful Equipment Investigators Report They Do Not 
Have, but Need: 

Abbreviations: 

AHERA: Asbestos Hazard Emergency Response Act: 

ALJ: Administrative Law Judge: 

ARB: Administrative Review Board: 

Aviation Investment and Reform Act: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century: 

CFR: Code of Federal Regulations: 

CPSIA: Consumer Product Safety Improvement Act of 2008: 

Environmental protection statutes: Consists of Clean Air Act; 
Comprehensive Environmental Response, Compensation, and Liability Act; 
Federal Water Pollution Control Act; Safe Drinking Water Act; Solid 
Waste Disposal Act; and Toxic Substances Control Act: 

FRSA: Federal Railroad Safety Act of 1970: 

Labor: Department of Labor: 

NTSSA: National Transit Systems Security Act of 2007: 

OALJ: Office of Administrative Law Judges: 

OIS: 
OSHA Information System: 

OSH Act: Occupational Safety and Health Act: 

OSHA: Occupational Safety and Health Administration: 

Secretary: Secretary of Labor: 

STAA: Surface Transportation Assistance Act: 

USC: United States Code: 

[End of section] 

United States Government Accountability Office:
Washington, DC 20548: 

January 27, 2009: 

The Honorable Patty Murray: 
Chairman: 
Subcommittee on Employment and Workplace Safety: 
Committee on Health, Education, Labor, and Pensions: 
United States Senate: 

The Honorable George Miller: 
Chairman: 
Committee on Education and Labor: 
House of Representatives: 

The Honorable Lynn Woolsey: 
Chairwoman: 
Subcommittee on Workforce Protections: 
Committee on Education and Labor: 
House of Representatives: 

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)[Footnote 1]. All of 
the whistleblower provisions are intended to protect non-federal 
workers[Footnote 2] 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. 
[Footnote 3] 

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.[Footnote 4] In 2001, Labor's Inspector General similarly found 
that OSHA was not completing its whistleblower investigations under two 
other statutes within statutory time frames.[Footnote 5] 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.[Footnote 6] 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[Footnote 7]. 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. 

Results in Brief: 

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 our 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 we 
visited, none of the case closed dates matched the documentation in 
case files. Furthermore, we found that completion of any one phase of 
an investigation--opening, information gathering, or closing-- 
sometimes took longer than the overall statutory or regulatory time 
frame for the entire investigation. At the appeals level, the 
reliability of information on the processing times is mixed. We 
determined that the timeliness of data at the OALJ level are reliable, 
with the data showing that the OALJ completed cases in fiscal year 2007 
in an average of about 9 months. However, these times varied widely, 
ranging from 10 days to about 3 years. In contrast, we found that ARB 
data are unreliable and that the agency lacks sufficient oversight of 
data quality. Although we cannot report overall processing times for 
ARB, in our file review of cases closed in fiscal year 2007, we found 
that processing times ranged from 30 days to over 5 years. At all 
levels of the whistleblower program, we found that increasing 
caseloads, case complexity, and involvement of the parties' legal 
counsel affect case processing times. 

Whistleblowers received a favorable outcome in a relatively small 
proportion of the 1,800 complaints that were closed in fiscal year 
2007, both in terms of initial decisions and on appeal, but the actual 
proportion may be somewhat lower than Labor's data indicate because 
some decisions were inaccurately recorded in OSHA's database. OSHA's 
data show investigations resulted in a favorable outcome for 
whistleblowers in about 21 percent of complaints; nearly all of these 
were settled through a separate agreement involving the whistleblower 
and the employer. However, we found several problems in the way 
settlements were being recorded in OSHA's database, and our review of 
settlement documents suggests that the proportion of complaints found 
in favor of the whistleblower may actually be somewhat lower than 
OSHA's data indicate. For example, several complaints recorded as 
settled were actually dismissed by OSHA or withdrawn by the 
whistleblower, while other complaints reported as settled lacked 
sufficient documentation to be able to determine the actual outcome of 
the complaint. When complaints were settled, most often whistleblowers 
received a monetary payment. Moreover, many complaints filed by 
whistleblowers were not investigated or recorded in OSHA's database. 
For certain statutes--including the one with the most complaints, the 
Occupational Safety and Health Act--OSHA permits investigators to 
screen out complaints without recording them in its database if they 
are not filed on a timely basis or if they do not meet the criteria to 
open an investigation. Because these complaints are never recorded in 
its database, OSHA does not have a complete picture of its overall 
investigator workload or of the outcomes of all complaints received. 
Overall, based on information from the five regions we visited, 
investigators screened out a large portion of complaints they received, 
but the proportion varied widely across the regions. Two of the five 
regions screened out very few complaints; two others screened out more 
than they investigated. When whistleblower complaints were appealed, 
whistleblowers similarly received a favorable decision in a minority of 
cases. Depending on the statute, whistleblowers may appeal to OSHA's 
Appeals Committee, or whistleblowers or their employers may appeal to 
OALJ and, ultimately, ARB. While there were some differences in 
outcomes from the two different appeals processes, most appeals were 
dismissed or denied in fiscal year 2007, most often due to insufficient 
evidence. Regardless of the appeals process, about one-third or fewer 
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 have said 
they lack some of the 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, due to a lack of clarity in the current audit 
guidance, officials cannot ensure that every region's whistleblower 
program is audited using the same criteria. In addition, the current 
audit processes do not adequately provide for independence, an 
important aspect of an effective audit program, and the regions are not 
held accountable for audit findings. All phases of OSHA's current audit 
process are controlled by the regional administrator whose programs are 
being audited. Moreover, OSHA also faces the challenge of ensuring that 
investigators in all ten regions have the resources they need to 
address their large and complex caseloads. Nearly half of the 
whistleblower investigators reported on our survey that the equipment 
they have does not meet the needs of their jobs, and some report 
lacking at least some essential equipment, such as a portable printer 
or a laptop computer. OSHA has not established minimum equipment 
standards for its investigators, and regional administrators must make 
key management decisions for the whistleblower program in their region, 
including how to allocate resources among many different OSHA 
priorities. 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 the 
Aviation Investment and Reform Act . OSHA officials have developed and 
begun to implement a national mandatory training program that would 
address these needs but does not centrally control the training budget 
for investigators. Regional budget constraints may, therefore, make it 
difficult for all investigators to receive this training. Additionally, 
while investigators in some OSHA regions are able to draw on the legal 
expertise of their region's Solicitor's Office over the course of an 
investigation, neither the regional Solicitors' Offices nor the 
national whistleblower program office have specialized legal experts 
available to assist investigators with cases involving complex legal 
matters, such as those that are frequently encountered when 
investigating Sarbanes-Oxley cases. 

We are making several recommendations to improve Labor's management and 
oversight of the program. We are recommending that the Secretary of 
Labor direct OSHA to establish a mechanism to ensure the accuracy of 
the data in its management information system and to ensure that the 
planned new system includes information on screened out cases. We are 
also recommending that the Secretary direct OSHA to revise its audit 
directive to ensure independence and accountability, and to take steps 
to ensure that regions conduct these audits within specified time 
frames. Furthermore, we are recommending that the Secretary direct OSHA 
to establish minimum standards for equipment and materials needed by 
whistleblower investigators. Finally, we are recommending that the 
Secretary direct ARB to improve the database it uses to track appeals. 
In its comments, OSHA generally agreed with our findings, but expressed 
concerns that we did not take into account the program's resource 
constraints when developing our findings and recommendations. In our 
report, we note 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. 
OSHA disagreed with the need for our draft recommendation to ensure 
that audits are completed, citing its expectation that all 10 regional 
offices will have completed on-site audits during fiscal year 2009. 
Because we found that audits of the whistleblower program have not been 
routinely conducted, we are retaining the recommendation while 
clarifying that the agency should focus its efforts on developing 
interim milestones to ensure that audits of the program are completed 
within time frames. 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 the existing internal 
controls are appropriate for managing the board's docket. We disagree 
and continue to stress the need for ARB to take action to ensure the 
data it uses to track cases are accurate. 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. The OALJ provided only technical comments 
which we incorporated where appropriate. 

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. (Appendix II provides details 
on the whistleblower provisions OSHA enforces, including statutory and 
regulatory time frames. Appendix III provides information on the anti- 
retaliation provisions that other Labor agencies administer.) 

Table 1: Statutes Included in OSHA's Whistleblower Protection Program: 

Cognizant agency and statute: Department of Energy: 
Energy Reorganization Act; 
Year of enactment of whistleblower provision: 1978. 

Cognizant agency and statute: Department of Transportation: 
Federal Railroad Safety Act; 
Year of enactment of whistleblower provision: 1980. 

Cognizant agency and statute: Department of Transportation: 
International Safe Container Act; 
Year of enactment of whistleblower provision: 1977. 

Cognizant agency and statute: Department of Transportation: 
National Transit Systems Security Act; 
Year of enactment of whistleblower provision: 2007. 

Cognizant agency and statute: Department of Transportation: 
Pipeline Safety Improvement Act; 
Year of enactment of whistleblower provision: 2002. 

Cognizant agency and statute: Department of Transportation: 
Surface Transportation Assistance Act; 
Year of enactment of whistleblower provision: 1983. 

Cognizant agency and statute: Environmental Protection Agency: 
Asbestos Hazard Emergency Response Act; 
Year of enactment of whistleblower provision: 1986. 

Cognizant agency and statute: Environmental Protection Agency: 
Clean Air Act; 
Year of enactment of whistleblower provision: 1977. 

Cognizant agency and statute: Environmental Protection Agency: 
Comprehensive Environmental Response, Compensation, and Liability Act; 
Year of enactment of whistleblower provision: 1980. 

Cognizant agency and statute: Environmental Protection Agency: 
Federal Water Pollution Control Act; 
Year of enactment of whistleblower provision: 1972. 

Cognizant agency and statute: Environmental Protection Agency: 
Safe Drinking Water Act; 
Year of enactment of whistleblower provision: 1974. 

Cognizant agency and statute: Environmental Protection Agency: 
Solid Waste Disposal Act; 
Year of enactment of whistleblower provision: 1976. 

Cognizant agency and statute: Environmental Protection Agency: 
Toxic Substances Control Act; 
Year of enactment of whistleblower provision: 1976. 

Cognizant agency and statute: Federal Aviation Administration: 
Wendell H. Ford Aviation Investment and Reform Act for the 21st 
Century; 
Year of enactment of whistleblower provision: 2000. 

Cognizant agency and statute: Department of Labor: 
Occupational Safety and Health Act; 
Year of enactment of whistleblower provision: 1970. 

Cognizant agency and statute: Securities and Exchange Commission: 
Sarbanes-Oxley Act; 
Year of enactment of whistleblower provision: 2002. 

Cognizant agency and statute: Consumer Product Safety Commission: 
Consumer Product Safety Improvement Act; 
Year of enactment of whistleblower provision: 2008. 

Source: GAO analysis of relevant statutes: 

Note: These years represent the date that the whistleblower provisions 
were added to the relevant statutes, and not necessarily the date of 
the original enactment of the statutes themselves, or the date that 
OSHA was given responsibility for enforcement for such provisions. For 
example, the Energy Reorganization Act was enacted in 1974, but the 
whistleblower provisions were not added until 1978. The program was 
originally assigned to the Wage and Hour Division of the Employment 
Standards Administration, but was reassigned to OSHA in 1997. 

[End of table] 

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 figure 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. 

Figure 1: OSHA's 10 Regions: 

[Refer to PDF for image] 

This figure is a map of the United States depicting the areas included 
in each of OSHA's 10 Regions. 

Source: OSHA. 

[End of figure] 

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 figure 2). 

Figure 2: OSHA's Whistleblower Investigation Process: 

[Refer to PDF for image] 

This figure illustrates the OSHA Whistleblower Investigation Process, 
as follows: 

Open case: Receive and screen complaint: 

* A current or former employee contacts OSHA by phone or in writing to 
file a complaint alleging employer retaliation for blowing the whistle. 
This contact date marks the beginning of the case processing time. 

* An investigator reviews the complaint and determines whether it makes 
a prima facie allegation and warrants investigation. 

* If there is no prima facie allegation, OSHA either (a) dockets and 
dismisses or, (b) for an Occupational Safety and Health Act, Asbestos 
Hazard Emergency Response Act, or International Safe Container Act 
complaint, screens the complaint out without docketing, if the 
complainant consents. If not, the case is docketed and dismissed. 

* If the complaint is docketed, the investigator notifies both 
parties—the complainant and respondent—of OSHA’s intent to investigate. 

Gather and analyze information: Develop the case: 

The investigator collects and corroborates evidence to support the 
complainant’s and respondent’s allegations, including: 

* interviews and obtains statements from the complainant and his or her 
witnesses, 

* obtains respondent’s position statement, conducts interviews and 
obtains statements from company officials and witnesses, 

* obtains and reviews other evidence to corroborate each party’s 
position, 

* resolves any discrepancies or counter allegations through additional 
interviews and other evidence, and, 

* evaluates the evidence and draws conclusions. 

Close case: Write final report and notify parties: 

* The investigator writes the final investigation report and obtains 
the supervisor’s signature. 

* Either the supervisor or the investigator prepares determination 
letters—stating the Secretary’s findings—for the Regional 
Administrator’s review and signature. 

* The investigator conducts a closing conference with the complainant. 

* Determination letters are sent to both parties. The date of these 
letters marks the end of the processing time. 

Source: GAO analysis of whistleblower investigation process. 

[End of figure] 

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 Appendix 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 figure 3). This review is de novo--it does not take into account 
the Secretary's findings from the OSHA investigation. 

Figure 3: Hearing Process at OALJ: 

[Refer to PDF for image] 

This figure is an illustration of the Hearing Process at OALJ, as 
follows: 

Docket (Open) case: 

* The OALJ receives a request for hearing from one of the parties 
involved in an OSHA whistleblower investigation. 

* The case is assigned to one of the Administrative Law Judges (ALJ), 
who reviews it for jurisdiction and timeliness. 

Schedule hearing: 

* The ALJ issues a notice of hearing that provides detailed 
instructions to the parties and sets an initial hearing date. 

* The parties usually request additional time for discovery, so the ALJ 
establishes a new hearing schedule that extends the time for discovery. 

Discovery and motions process: 

* The discovery process involves collecting and exchanging evidence 
from the opposing party and third parties. This process varies in 
length but can be as long as 6 months or even longer for complex cases. 

* Simultaneously with the discovery process, the parties may file 
motions with the presiding ALJ. For example, a party may submit a 
motion for summary judgment. If so, the opposing party is given 
adequate time to respond, generally at least 20 days. 

* After the motions deadline, which is usually at least 30 days prior 
to the hearing, the ALJ rules on any pending prehearing motions. 

Hearing: 

* Whistleblower hearings can take up to several weeks. 

* The hearing transcript is released to the ALJ and both parties about 
30 days after the hearing. 

* Each party submits written closing arguments and briefs 30-60 days 
after receipt of the transcript. 

Decision and close case: 

* The ALJ generally issues a decision within several months after 
receiving the hearing transcript and briefs. 

* The decision date marks the case closed date. 

Source: GAO analysis of OALJ appeals process. 

[End of figure] 

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 figure 
4). 

Figure 4: Review Process at ARB: 

[Refer to PDF for image] 

This figure is an illustration of the Review Process at ARB, as 
follows: 

Open case: 

* A losing party may appeal the ALJ recommended decision by submitting 
a petition for review. The Administrative Review Board (ARB) is 
required to automatically review the ALJs’ Surface Transportation 
Assistance Act (STAA) decisions. The Office of Administrative Law 
Judges (OALJ) then forwards the case file to ARB either automatically 
under STAA or in response to an ARB request for the case file where 
petitions for review have been filed. 

Schedule hearing: 

* The ARB issues a notice of briefing schedule that allows the parties 
to submit briefs. 

* Parties frequently request extensions. 

Review case: 

* A staff attorney reviews the entire case record, including the ALJ 
decision, hearing transcript, briefs, exhibits, and OSHA’s final 
investigation report (if included in the record). 

* A briefing file, containing the ALJ decision, the briefs, and other 
critical information, is given to each panel member, consisting of two 
or more Board members. 

* The staff attorney presents the case to the panel. The General 
Counsel often sits in on complex cases. 

Decision: 

* The panel decides the outcome. 

* The staff attorney drafts an opinion, which is reviewed by the panel 
and by the General Counsel. 

* The ARB issues a decision to both parties. 

Close case: 

* The docket staff closes the case by entering a case closed date into 
the database. 

* The docket staff returns the case file to the OALJ or holds the case 
file until the date for appeal to the Federal Courts has passed. If the 
case is appealed, the ARB sends either a certified list of record 
contents or the record to the appellate court. 

Source: GAO analysis of ARB appeals/review process. 

[End of figure] 

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.[Footnote 8] 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.[Footnote 9] 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. 
[Footnote 10] 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[Footnote 11] 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.[Footnote 12] 
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. 

Table 2: Processing Times for 20 Selected Cases We Reviewed: 

Statute: Occupational Safety and Health Act; 
Time frame allowed for investigation: 90 days; 
Shortest processing time: 41 days; 
Longest processing time: 182 days. 

Statute: Sarbanes-Oxley Act; 
Time frame allowed for investigation: 60 days; 
Shortest processing time: 89 days; 
Longest processing time: 320 days. 

Statute: Environmental protection statutes; 
Time frame allowed for investigation: 30 days; 
Shortest processing time: 40 days; 
Longest processing time: 323 days. 

Source: GAO analysis of case files in three regions. 

Note: The 20 cases included in this analysis were investigated under 
the Occupational Safety and Health Act, six environmental protection 
statutes (Clean Air Act; Comprehensive Environmental Response, 
Compensation, and Liability Act; Federal Water Pollution Control Act; 
Safe Drinking Water Act; Solid Waste Disposal Act; and Toxic Substances 
Control Act), and the Sarbanes-Oxley Act. We selected these statutes 
because they represent a range of required time frames (30, 60, or 90 
days). During site visits to three of OSHA's 10 regions, we randomly 
selected for review at least three cases under each statute or type of 
statute (i.e., environmental protection) that were closed in fiscal 
year 2007 and represented short, medium, and long processing times, as 
reported in OSHA's database. In total, we reviewed 30 cases: 9 
Occupational Safety and Health cases, 12 environmental protection 
cases, and 9 Sarbanes-Oxley cases. However, we could not determine 
processing times for some of these cases due to incomplete case file 
documentation, so table 2 reflects data from 20 cases: 6 Occupational 
Safety and Health cases, 7 environmental protection cases, and 7 
Sarbanes-Oxley cases. 

[End of table] 

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. 

Figure 5: Range of Days for Each Phase of Nine Selected Case Studies: 

[Refer to PDF for image] 

Opening: 2 to 41 days; 
Information Gathering and Analysis: 8 to 233 days; 
Closing: 0 to 49 days. 

Source: GAO review of selected case files. 

Note: The 9 cases included in this analysis are a subset of the 20 
cases used in the analysis for table 2. To report the range of phase 
lengths, we reviewed the short and long cases from each of three 
statutes in each region--18 cases in total--but we could not determine 
the lengths of all phases for 9 of these cases. Consequently, figure 5 
reflects data from 2 short and 1 long Occupational Safety and Health 
cases, 2 short Sarbanes-Oxley cases, and 3 short and 1 long 
environmental protection cases. 

[End of figure] 

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. 

Figure 6: Certain Factors Hinder Investigators' Ability to Complete 
Investigations within Required Time Frames: 

[Refer to PDF for image] 

Factor: The complexity of the data that has to be analyzed; 
Percentage of survey respondents: 85%. 

Factor: The amount of information that must be gathered; 
Percentage of survey respondents: 83.33%. 

Factor: Overall caseload; 
Percentage of survey respondents: 80%. 

Factor: Involvement of respondent's counsel; 
Percentage of survey respondents: 73.33%. 

Factor: Respondent's cooperation or responsiveness; 
Percentage of survey respondents: 60%. 

Factor: The number of witnesses; 
Percentage of survey respondents: 56.67%. 

Factor: Involvement of claimant's counsel; 
Percentage of survey respondents: 55%. 

Source: GAO survey of OSHA whistleblower investigators. 

Note: Percentages in figure reflect responses by investigators who 
reported that these factors either hindered their ability to complete 
investigations within time frames to a moderate extent or to a great 
extent. 

[End of figure] 

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, 
[Footnote 13] 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.[Footnote 14] Processing 
times varied widely across statutes, ranging from as little as 10 days 
to about 3 years (see table 3).[Footnote 15] 

Table 3: Processing Times of OALJ Cases Closed in Fiscal Year 2007 by 
Statute: 

Statute: Aviation Investment and Reform Act; 
Total cases closed in FY 07: 18; 
Length of OALJ hearing process (days): Shortest: 49; 
Length of OALJ hearing process (days): Average: 279; 
Length of OALJ hearing process (days): Longest: 553. 

Statute: Environmental protection statutes; 
Total cases closed in FY 07: 15; 
Length of OALJ hearing process (days): Shortest: 45; 
Length of OALJ hearing process (days): Average: 363; 
Length of OALJ hearing process (days): Longest: 945. 

Statute: Energy Reorganization Act; 
Total cases closed in FY 07: 18; 
Length of OALJ hearing process (days): Shortest: 79; 
Length of OALJ hearing process (days): Average: 247; 
Length of OALJ hearing process (days): Longest: 518. 

Statute: Pipeline Safety Improvement Act; 
Total cases closed in FY 07: 2; 
Length of OALJ hearing process (days): Shortest: 172; 
Length of OALJ hearing process (days): Average: 311; 
Length of OALJ hearing process (days): Longest: 450. 

Statute: Sarbanes-Oxley Act; 
Total cases closed in FY 07: 99; 
Length of OALJ hearing process (days): Shortest: 25; 
Length of OALJ hearing process (days): Average: 243; 
Length of OALJ hearing process (days): Longest: 1,106. 

Statute: Surface Transportation Assistance Act; 
Total cases closed in FY 07: 55; 
Length of OALJ hearing process (days): Shortest: 10; 
Length of OALJ hearing process (days): Average: 284; 
Length of OALJ hearing process (days): Longest: 812. 

Statute: All cases; 
Total cases closed in FY 07: 207; 
Length of OALJ hearing process (days): Shortest: 10; 
Length of OALJ hearing process (days): Average: 267; 
Length of OALJ hearing process (days): Longest: 1,106. 

Source: GAO analysis of Labor data. 

Note: The OALJ database contains 220 records of cases closed in fiscal 
year 2007. Thirteen of these 220 cases are considered "companion" cases 
because one of the parties included more than one person or entity. 
Consequently, the Administrative Law Judge issued one decision letter, 
addressed to all participants in the case. We have combined these 
companion cases in reporting processing times because using all 220 
case records would skew the average processing time for one statute's 
cases. 

[End of table] 

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).[Footnote 16] While at least 84 percent of these 109 cases 
exceeded the statutory or regulatory time frames,[Footnote 17] 
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. 

Table 4: Processing Times for 109 of 120 Cases the ARB Closed in Fiscal 
Year 2007: 

Aviation Investment and Reform Act; 
Total cases closed in FY 07: 12; 
Number of cases with known processing times: 10; 
Shortest case (in days): 469 (15 months); 
Longest case (in days): 2,015 (5 yrs., 6 months). 

Environmental protection statutes; 
Total cases closed in FY 07: 12; 
Number of cases with known processing times: 9; 
Shortest case (in days): 406 (13 months); 
Longest case (in days): 1,071 (2 yrs., 11 months). 

Energy Reorganization Act; Total cases closed in FY 07: 7; 
Number of cases with known processing times: 4; 
Shortest case (in days): 674 (22 months); 
Longest case (in days): 1,001 (2 yrs., 9 months). 

Sarbanes-Oxley Act; Total cases closed in FY 07: 18; 
Number of cases with known processing times: 15; 
Shortest case (in days): 50; 
Longest case (in days): 945 (2 yrs., 7 months). 

Surface Transportation Assistance Act; 
Total cases closed in FY 07: 71; 
Number of cases with known processing times: 71; 
Shortest case (in days): 32; 
Longest case (in days): 1,917 (5 yrs., 3 months). 

Total; 
Total cases closed in FY 07: 120; 
Number of cases with known processing times: 109. 

Source: GAO analysis of case files. 

[End of table] 

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.[Footnote 18] 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.[Footnote 19] 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 figure 7 for a summary of actual 
outcomes.) 

Figure 7: Outcomes for OSHA's Whistleblower Investigations Closed in 
Fiscal Year 2007: 

[Refer to PDF for image] 

Illustration of Outcomes for OSHA's Whistleblower Investigations Closed 
in Fiscal Year 2007: (Numbers reflect individual outcomes) 

1) Whistleblower files complaint: 

2) Complaint screened out without opening; 

As reflected in OSHA's database: 

3) Whistleblower complaint is entered in OSHA’s database and 
Investigated (1,864); 

4) Whistleblower withdraws complaint (253); or; 
Case settles or investigation concludes complaint has merit (390); or; 
Investigation concludes complaint has no merit and dismisses (1,221); 

5) Go forward for litigation(12); 
- Litigated (0); 
- Dismissed (12); 

OSHA sent merit letter (7); 

Settled (371); 
- Actually settled (323); 
- Actually dismissed (5); 
- Actually withdrawn (18); 
- Could not determine (25). 

Source: GAO analysis of OSHA database and file documentation. 

[End of figure] 

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. 

Table 5: Adjusted Outcomes of Investigations by Statute, Fiscal Year 
2007: 

Statute: Asbestos Hazard Emergency Response Act; 
Dismissed: Number: 1; 
Dismissed: Percentage: 100%; 
Withdrawn: Number: 0; 
Withdrawn: Percentage: 0%; 
Merit: Number: 0; 
Merit: Percentage: 0%; 
Total: Number: 1; 
Total: Percentage: 100%. 

Statute: Aviation Investment and Reform Act; 
Dismissed: Number: 31; 
Dismissed: Percentage: 65; 
Withdrawn: Number: 8; 
Withdrawn: Percentage: 17; 
Merit: Number: 9; 
Merit: Percentage: 19; 
Total: Number: 48; 
Total: Percentage: 100. 

Statute: Environmental protection statutes; 
Dismissed: Number: 44; 
Dismissed: Percentage: 69; 
Withdrawn: Number: 7; 
Withdrawn: Percentage: 11; 
Merit: Number: 13; 
Merit: Percentage: 20; 
Total: Number: 64; 
Total: Percentage: 100. 

Statute: Energy Reorganization Act; 
Dismissed: Number: 20; 
Dismissed: Percentage: 77; 
Withdrawn: Number: 3; 
Withdrawn: Percentage: 12; 
Merit: Number: 3; 
Merit: Percentage: 12; 
Total: Number: 26; 
Total: Percentage: 100. 

Statute: Occupational Safety and Health Act; 
Dismissed: Number: 786; 
Dismissed: Percentage: 65; 
Withdrawn: Number: 190; 
Withdrawn: Percentage: 16; 
Merit: Number: 229; 
Merit: Percentage: 19; 
Total: Number: 1,205; 
Total: Percentage: 100. 

Statute: Pipeline Safety Improvement Act; 
Dismissed: Number: 2; 
Dismissed: Percentage: 100; 
Withdrawn: Number: 0; 
Withdrawn: Percentage: 0; 
Merit: Number: 0; Merit: 
Percentage: 0; 
Total: Number: 2; 
Total: Percentage: 100. 

Statute: Sarbanes-Oxley Act; 
Dismissed: Number: 171; 
Dismissed: Percentage: 70; 
Withdrawn: Number: 31; 
Withdrawn: Percentage: 13; 
Merit: Number: 42; 
Merit: Percentage: 17; 
Total: Number: 244; 
Total: Percentage: 100. 

Statute: Surface Transportation Assistance Act; 
Dismissed: Number: 183; 
Dismissed: Percentage: 67; 
Withdrawn: Number: 32; 
Withdrawn: Percentage: 12; 
Merit: Number: 59; 
Merit: Percentage: 22; 
Total: Number: 274; 
Total: Percentage: 100. 

Statute: Total; 
Dismissed: Number: 1,238; 
Dismissed: Percentage: 66%; 
Withdrawn: Number: 271; 
Withdrawn: Percentage: 15%; 
Merit: Number: 355; 
Merit: Percentage: 19%; 
Total: Number: 1,864; 
Total: Percentage: 100%. 

Source: GAO analysis of OSHA's Integrated Management Information System 
and document review. 

Note: Percentages may not total 100 due to rounding. Numbers listed 
have been adjusted to exclude cases litigated that were dismissed and 
cases for which errors were found during our review of settlement 
agreements. 

[End of table] 

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). 

Table 6: Number of Settlement Agreement Payments and Selected Amounts 
by Statute, Complaints Settled in Fiscal Year 2007: 

Statute: Aviation Investment and Reform Act; 
Number of agreements with monetary payments: 6; 
Average amount: $10,083; 
Minimum amount: $1,000; 
Maximum amount: $22,500. 

Statute: Environmental protection statutes; 
Number of agreements with monetary payments: 5; 
Average amount: $41,821; 
Minimum amount: $2,000; 
Maximum amount: $99,920. 

Statute: Energy Reorganization Act; 
Number of agreements with monetary payments: 2; 
Average amount: $70,176; 
Minimum amount: $8,000; 
Maximum amount: $132,352. 

Statute: Occupational Safety and Health Act; 
Number of agreements with monetary payments: 172; 
Average amount: $5,288; 
Minimum amount: $65; 
Maximum amount: $94,500. 

Statute: Sarbanes-Oxley Act; 
Number of agreements with monetary payments: 35; 
Average amount: $133,575; 
Minimum amount: $5,000; 
Maximum amount: $775,000. 

Statute: Surface Transportation Assistance Act; 
Number of agreements with monetary payments: 38; 
Average amount: $6,617; 
Minimum amount: $176; 
Maximum amount: $81,500. 

Statute: Overall; 
Number of agreements with monetary payments: 258; 
Average amount: $23,604; 
Minimum amount: $65; 
Maximum amount: $775,000. 

Source: GAO analysis of settlement agreements, 2007. 

[End of table] 

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.[Footnote 20] These criteria are: (1) the 
complaint was not filed within statutory time limits; (2) the case was 
not within OSHA's jurisdiction,[Footnote 21] or (3) the complaint does 
not allege a prima facie case.[Footnote 22] 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. 

Table 7: Fiscal Year 2007 Investigated and Closed Cases and Screen-Outs 
for Five Regional Offices: 

OSHA region: Region A; 
Number of investigated and closed cases: 163; 
Number of screened out complaints: 222. 

OSHA region: Region B; 
Number of investigated and closed cases: 190; 
Number of screened out complaints: 11. 

OSHA region: Region C; 
Number of investigated and closed cases: 364; 
Number of screened out complaints: 281. 

OSHA region: Region D; 
Number of investigated and closed cases: 71; 
Number of screened out complaints: 74. 

OSHA region: Region E; 
Number of investigated and closed cases: 73; 
Number of screened out complaints: 2. 

OSHA region: Total; 
Number of investigated and closed cases: 861; 
Number of screened out complaints: 590. 

Source: GAO analysis of OSHA regional data. 

[End of table] 

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.[Footnote 23] 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 figure 8). 

Figure 8: Outcomes for Cases Appealed to the OSHA Appeals Committee and 
Closed in Fiscal Year 2007: 

[Refer to PDF for image] 

Outcomes of OSHA investigation: 

1) Merit: 
No appeal rights within Labor for employer. 

2) Dismissed: 
Whistleblower: 
* OSHA appeals committee (69); 
- Committee upheld OSGA's decision (68); 
- Whistleblower withdrew appeal while region was reinvestigating 
case (1). 

3) Withdrawn: 

Source: GAO analysis of OSHA appeals documents. 

[End of figure] 

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 figure 9). 

Figure 9: Outcomes for Cases Appealed to OALJ and Closed in Fiscal Year 
2007: 

[Refer to PDF for image] 

Outcomes of OSHA investigation: 

1) Merit: Employer: and; 
2) Dismissed: Whistleblower: 
* Appealed to OALJ (207); 
- Settled or found in favor of the whistleblower (71); 
- Withdrawn (34); 
- Dismissed (102) (May be appealed to ARB): 
-- Appeal not filed within time frames (21); 
-- OALJ exceeded time frames and whistleblower appealed to District 
Court (21); 
-- Dismissed for other reasons (60) 

3) Withdrawn: 

Source: GAO analysis of OALJ decisions. 

[End of figure] 

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.[Footnote 
24] 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 
figure 10.) 

Figure 10: Outcomes for Cases Appealed to the ARB and Closed in Fiscal 
Year 2007: 

[Refer to PDF for image] 

OALJ decision: 

1) Settled; 

2) Dismissed: 
* ARB (50): 
- Dismissed or denied (25); 
-Withdrawn (4); 
- Settled (4); 
- Returned to OALJ (8); 
- Appealed to District Court because ARB did not meet time frames (4); 
- Decreased whistleblower’s monetary payment (1); 
- Reversed or rejected OALJ decision (4); 

3) Withdrawn. 

Source: GAO analysis of ARB decisions. 

[End of figure] 

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.[Footnote 25] 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..."[Footnote 26] 

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 figure 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. 

Figure 11: Key and Useful Equipment Investigators Report They Do Not 
Have, but Need: 

[Refer to PDF for image] 

Type of equipment: Cell phone (considered key); 
Percentage of investigators: 8%. 

Type of equipment: Laptop computer (considered key); 
Percentage of investigators: 13%. 

Type of equipment: Portable printer (considered key); 
Percentage of investigators: 27%. 

Type of equipment: Recording device (considered useful); 
Percentage of investigators: 10%. 

Type of equipment: Docking station (considered useful); 
Percentage of investigators: 30%. 

Source: GAO survey of Whistleblower investigators. 

[End of figure] 

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. 

Table 8: Key and Useful Equipment for Investigators and Examples of 
Their Functions for Investigating Whistleblower Claims: 

Equipment: Cell phone; 
Examples of functions in day-to-day activities: 
* Allows investigators to coordinate with their supervisors, witnesses, 
and others during investigators' frequent travel. 

Equipment: Laptop computer; 
Examples of functions in day-to-day activities: 
* Enables investigators to have critical documents, such as sworn 
statements for witnesses to sign, on hand at all times, even while they 
are traveling; 
* Allows investigators to compose important case file documentation, 
such as records of interviews, while in the field; 
* Along with an Internet connection, permits investigators to access 
OSHA's database to enter key processing data real-time, regardless of 
the investigator's location. Also allows investigators to conduct 
research (e.g., case law or corporate filings) while in the field. 

Equipment: Docking station; 
Examples of functions in day-to-day activities: 
* Allows investigators to use a laptop computer for long periods of 
time and to quickly access additional peripheral equipment, such as CD-
ROMs, larger monitors, and standard keyboards. 

Equipment: Recording device; 
Examples of functions in day-to-day activities: 
* A recording device allows investigators to record their numerous 
interviews, rather than having to rely on their own notes and written 
statements taken while conducting the interview. Interviews may be 
burned onto a CD-ROM and included with the case file. Some recordings 
may be manually transcribed, depending on the circumstances; 
* A digital recording device allows investigators to save interviews 
electronically and use voice recognition software to automatically 
transcribe them. 

Equipment: Portable printer; 
Examples of functions in day-to-day activities: 
* Enables investigators to print critical documents, such as sworn 
statements for witnesses to sign, while they are in the field. 

Source: GAO analysis of testimonial information provided by 
investigators and supervisors. 

[End of table] 

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 [hyperlink, 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. 

Signed by: 

George A. Scott, Director: 
Education, Workforce, and Income Security Issues: 

[End of section] 

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.[Footnote 27] 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. 

[End of section] 

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. 

Table 9: Initial Filing of the Complaint: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008; 
Deadline to file complaint from date of alleged violation: 180 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Department of Energy: Energy Reorganization Act of 1974; 
Deadline to file complaint from date of alleged violation: 180 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Department of Transportation: Federal Railroad Safety Act of 1970; 

Deadline to file complaint from date of alleged violation: 180 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Department of Transportation: International Safe Container Act; 
Deadline to file complaint from date of alleged violation: 60 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Department of Transportation: National Transit Systems Security Act of 
2007; 
Deadline to file complaint from date of alleged violation: 180 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 

Deadline to file complaint from date of alleged violation: 180 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
Deadline to file complaint from date of alleged violation: 180 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
Deadline to file complaint from date of alleged violation: 90 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Environmental Protection Agency: Clean Air Act; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Environmental Protection Agency: Federal Water Pollution Control Act; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Environmental Protection Agency: Safe Drinking Water Act; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Environmental Protection Agency: Solid Waste Disposal Act; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Environmental Protection Agency: Toxic Substances Control Act; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
Deadline to file complaint from date of alleged violation: 90 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Department of Labor: Occupational Safety and Health Act of 1970; 
Deadline to file complaint from date of alleged violation: 30 days: 
[Check]; 
Form of complaint: No form specified/required[A]: [Check]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
Deadline to file complaint from date of alleged violation: 90 days: 
[Check][B]; 
Form of complaint: Complaint must be written: [Check]. 

Source: GAO analysis of relevant statutes and regulations. 

[A] Although no form is specified or required, whistleblower complaints 
may be provided either orally or in writing. For example, for the 
Occupational Safety and Health Act, the whistleblower may provide his 
or her complaint by telephone to a responsible OSHA official. 

[B] The date of violation occurs when the retaliatory decision has been 
both made and communicated to the complainant. 

[End of table] 

Table 10: Secretary's Actions After the Complaint is Made: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008; 
Notification of program agency: No process specified: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Department of Energy: Energy Reorganization Act of 1974; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check];
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]; 

Department of Transportation: Federal Railroad Safety Act of 1970; 
Notification of program agency: No process specified: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Department of Transportation: International Safe Container Act; 
Notification of program agency: No process specified: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: No process specified: 
[Check][B]. 

Department of Transportation: National Transit Systems Security Act of 
2007; 
Notification of program agency: No process specified: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
Notification of program agency: No process specified: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
Notification of program agency: No process specified: [Check]; 
Deadline for secretary's initial findings: 90 days: [Check]; 
Initial findings include a preliminary order: No process specified: 
[Check][B]. 

Environmental Protection Agency: Clean Air Act; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Environmental Protection Agency: Federal Water Pollution Control Act; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Environmental Protection Agency: Safe Drinking Water Act; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Environmental Protection Agency: Solid Waste Disposal Act; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Environmental Protection Agency: Toxic Substances Control Act; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 30 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Department of Labor: Occupational Safety and Health Act of 1970; 
Notification of program agency: No process specified: [Check][C]; 
Deadline for secretary's initial findings: 90 days: [Check]; 
Initial findings include a preliminary order: No process specified: 
[Check][B]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
Notification of program agency: Program agency is notified of the 
complaint: [Check]; 
Deadline for secretary's initial findings: 60 days: [Check]; 
Initial findings include a preliminary order: Yes, if a violation (or 
reasonable cause) is found[A]: [Check]. 

Source: GAO analysis of relevant statutes and regulations. 

Note: None of the whistleblower provisions of these statutes and 
regulations address subpoena powers directly. Outside of its 
whistleblower provisions, the Occupational Safety and Health Act (OSH 
Act) gives the Secretary of Labor subpoena power for making 
investigations. Asbestos Hazard Emergency Response Act (AHERA), in 
turn, states that reviews under its whistleblower provisions shall be 
conducted in accordance with OSHA. As a result, the Secretary has 
subpoena power under both OSH Act and AHERA. 

[A] Preliminary orders of reinstatement may also be issued. 

[B] Although no specific mention of preliminary orders is made, the 
Secretary can bring an action in U.S. District Court after finding that 
a violation occurred. 

[C] Because OSHA is the program agency for this Act, it effectively 
receives notice via the filing of the complaint itself. 

[End of table] 

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. 

Table 11: Administrative Law Judge Appeals Process: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008 (CPSIA); 
Deadline for appealing to the ALJ: No ALJ process specified: 
[Check][B]; 
ALJ standard of review: No ALJ process specified: [Check][B]; 
Deadline for the ALJ to issue a decision: No ALJ process specified: 
[Check][B]. 

Department of Energy: Energy Reorganization Act of 1974; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Department of Transportation: Federal Railroad Safety Act of 1970 
(FRSA); 
Deadline for appealing to the ALJ: No ALJ process specified: 
[Check][B]; 
ALJ standard of review: No ALJ process specified: [Check][B]; 
Deadline for the ALJ to issue a decision: No ALJ process specified: 
[Check][B]. 

Department of Transportation: International Safe Container Act; 
Deadline for appealing to the ALJ: No ALJ process specified: [Check]; 
ALJ standard of review: No ALJ process specified: [Check]; 
Deadline for the ALJ to issue a decision: No ALJ process specified: 
[Check]. 

Department of Transportation: National Transit Systems Security Act of 
2007 (NTSSA); 
Deadline for appealing to the ALJ: No ALJ process specified: 
[Check][B]; 
ALJ standard of review: No ALJ process specified: [Check][B]; 
Deadline for the ALJ to issue a decision: No ALJ process specified: 
[Check][B]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 
Deadline for appealing to the ALJ: 60 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: 60 days: [Check]; 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
Deadline for appealing to the ALJ: 30 days: 
Deadline for appealing to the ALJ: No ALJ process specified: [Check]; 
ALJ standard of review: No ALJ process specified: [Check]; 
Deadline for the ALJ to issue a decision: No ALJ process specified: 
[Check]. 

Environmental Protection Agency: Clean Air Act; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Environmental Protection Agency: Federal Water Pollution Control Act; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Environmental Protection Agency: Safe Drinking Water Act; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Environmental Protection Agency: Solid Waste Disposal Act; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Environmental Protection Agency: Toxic Substances Control Act; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]; 

Department of Labor: Occupational Safety and Health Act of 1970; 
Deadline for appealing to the ALJ: No ALJ process specified: [Check]; 
ALJ standard of review: No ALJ process specified: [Check]; 
Deadline for the ALJ to issue a decision: No ALJ process specified: 
[Check]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
Deadline for appealing to the ALJ: 30 days: [Check]; 
ALJ standard of review: De Novo[A]: [Check]; 
Deadline for the ALJ to issue a decision: No deadline specified: 
[Check]. 

Source: GAO analysis of relevant statutes and regulations. 

Note: None of the whistleblower provisions of these statutes or 
regulations explicitly address the solicitor's role in the process. 

[A] A "de novo" standard of review is a nondeferential review conducted 
as if the original proceeding had not taken place. 

[B] Since CPSIA, FRSA, and NTSSA are relatively new statutes, none have 
accompanying regulations yet. As a result, there is no specific mention 
of ALJs or ARB. Therefore, for the purposes of these tables, these 
statutes are placed in the relevant columns, indicating that no process 
has been specified. The statutes do, however, permit the parties to 
request a hearing on the record. Because of this language, and pursuant 
to the Administrative Procedure Act, Labor is currently docketing such 
cases at the ALJ level. 

[End of table] 

Table 12: Administrative Review Board Appeals Process: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008 (CPSIA); 
Deadline for Appealing from the ALJ to the ARB: No ARB process 
specified: [Check][B]; 
ARB Standard of Review: No ARB process specified: [Check][B]; 
Deadline for the ARB's Final Decision: No ARB process specified: 
[Check][B]. 

Department of Energy: Energy Reorganization Act of 1974; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; 
ARB Standard of Review: Substantial evidence standard[A]: [Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Department of Transportation: Federal Railroad Safety Act of 1970 
(FRSA); 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; 
ARB Standard of Review: No ARB process specified: [Check]; 
Deadline for the ARB's Final Decision: No ARB process specified: 
[Check][B]. 

Department of Transportation: International Safe Container Act; 
Deadline for Appealing from the ALJ to the ARB: No ARB process 
specified: [Check]; 
ARB Standard of Review: No ARB process specified: [Check]
Deadline for the ARB's Final Decision: No ARB process specified: 
[Check]. 

Department of Transportation: National Transit Systems Security Act of 
2007 (NTSSA); 
Deadline for Appealing from the ALJ to the ARB: No ARB process 
specified: [Check][B]; 
ARB Standard of Review: No ARB process specified: [Check]; 
Deadline for the ARB's Final Decision: No ARB process specified: 
[Check]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check];
Deadline for the ARB's Final Decision: 90 days after the hearing 
concludes: [Check]. 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
Deadline for Appealing from the ALJ to the ARB: ARB Automatic Review: 
[Check]; 
ARB Standard of Review: Substantial evidence standard[A]: [Check]; 
Deadline for the ARB's Final Decision: 120 days after the hearing 
concludes: [Check]. 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
Deadline for Appealing from the ALJ to the ARB: No ARB process 
specified: [Check]; 
ARB Standard of Review: No ARB process specified: [Check]; 
Deadline for the ARB's Final Decision: No ARB process specified: 
[Check]. 

Environmental Protection Agency: Clean Air Act; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; 
ARB Standard of Review: Substantial evidence standard[A]: [Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; 
ARB Standard of Review: Substantial evidence standard[A]: [Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Environmental Protection Agency: Federal Water Pollution Control Act; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Environmental Protection Agency: Safe Drinking Water Act; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Environmental Protection Agency: Solid Waste Disposal Act; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Environmental Protection Agency: Toxic Substances Control Act; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check]; 
Deadline for the ARB's Final Decision: 90 days after complaint is 
filed: [Check]. 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check]; 
Deadline for the ARB's Final Decision: 120 days after the hearing 
concludes: [Check]. 

Department of Labor: Occupational Safety and Health Act of 1970; 
Deadline for Appealing from the ALJ to the ARB: No ARB process 
specified: [Check];
ARB Standard of Review: No ARB process specified: [Check]; 
Deadline for the ARB's Final Decision: No ARB process specified: 
[Check]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
Deadline for Appealing from the ALJ to the ARB: 10 business days: 
[Check]; ARB Standard of Review: Substantial evidence standard[A]: 
[Check]; 
Deadline for the ARB's Final Decision: 120 days after the hearing 
concludes: [Check]. 

Source: GAO analysis of relevant statutes and regulations. 

[A] A "substantial evidence" standard of review is deferential to the 
factual findings of the body below as long as those findings are 
supported by substantial evidence. 

[B] Since CPSIA, FRSA, and NTSSA are relatively new statutes, none have 
accompanying regulations yet. As a result, there is no specific mention 
of ALJs or ARB. Therefore, for the purposes of these tables, these 
statutes are placed in the relevant columns, indicating that no process 
has been specified. The statutes do, however, permit the parties to 
request a hearing on the record. Because of this language, and pursuant 
to the Administrative Procedure Act, Labor is currently docketing such 
cases at the ALJ level. 

[End of table] 

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. 

Table 13: Parties Bringing an Action in U.S. District Court: 

Parties’ rights to bring legal action in U.S. District Court: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008 (CPSIA); 
In order to get compliance with an order: [Check]; 
If the Secretary has not issued a final decision within 180 days of the 
complaint: [Check][A]; 
Within 90 days after receiving a written determination: [Check][A]. 

Department of Energy: Energy Reorganization Act of 1974; 
In order to get compliance with an order: [Check]; 
If the Secretary has not issued a final decision within 1 year of the 
complaint: [Check]. 

Department of Transportation: Federal Railroad Safety Act of 1970 
(FRSA); 
In order to get compliance with an order: [Check]; 
If the Secretary has not issued a final decision within 210 days of the 
complaint: [Check][A]. 

Department of Transportation: International Safe Container Act; 
No process for legal action specified: [Check]. 

Department of Transportation: National Transit Systems Security Act of 
2007 (NTSSA); 
In order to get compliance with an order: [Check]; 
If the Secretary has not issued a final decision within 210 days of the 
complaint: [Check][A]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 
In order to get compliance with an order: [Check]. 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
If the Secretary has not issued a final decision within 210 days of the 
complaint: [Check][A]. 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
No process for legal action specified: [Check]. 

Environmental Protection Agency: Clean Air Act; 
In order to get compliance with an order: [Check]. 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
In order to review the final ARB order: [Check]. 

Environmental Protection Agency: Federal Water Pollution Control Act; 
No process for legal action specified: [Check]. 

Environmental Protection Agency: Safe Drinking Water Act; 
No process for legal action specified: [Check]. 

Environmental Protection Agency: Solid Waste Disposal Act; 
No process for legal action specified: [Check]. 

Environmental Protection Agency: Toxic Substances Control Act; 
No process for legal action specified: [Check]. 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
In order to get compliance with an order: [Check]. 

Department of Labor: Occupational Safety and Health Act of 1970; 
No process for legal action specified: [Check]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
In order to get compliance with an order: [Check]; 
If the Secretary has not issued a final decision within 180 days of the 
complaint: [Check]. 

Source: GAO analysis of relevant statutes and regulations. 

[A] Jury trials are specifically permitted. 

[End of table] 

Table 14: Actions Brought by the Secretary in U.S. District Court and 
by the Parties to Review the ARB Decision: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008 (CPSIA); 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check][B]. 

Department of Energy: Energy Reorganization Act of 1974; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Department of Transportation: Federal Railroad Safety Act of 1970 
(FRSA); 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check][B]. 

Department of Transportation: International Safe Container Act; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for a violation: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check]. 

Department of Transportation: National Transit Systems Security Act of 
2007 (NTSSA); 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check][B]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "shall" bring action for failure to comply: 
[Check]; Deadline to bring action in U.S. Court of Appeals to review 
ARB decision: 60 days: [Check]. 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "shall" bring an action for a violation: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check]. 

Environmental Protection Agency: Clean Air Act; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check]. 

Environmental Protection Agency: Federal Water Pollution Control Act; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]:Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 120 days: [Check]. 

Environmental Protection Agency: Safe Drinking Water Act; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "shall" bring action for failure to comply: 
[Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Environmental Protection Agency: Solid Waste Disposal Act; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 90 days: [Check]. 

Environmental Protection Agency: Toxic Substances Control Act; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "shall" bring action for failure to comply: 
[Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Department of Labor: Occupational Safety and Health Act of 1970; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "shall" bring an action for a violation: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: No right of action specified: [Check]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
The Secretary's authority to bring legal action in U.S. District 
Court[A]: Secretary "may" bring action for failure to comply: [Check]; 
Deadline to bring action in U.S. Court of Appeals to review ARB 
decision: 60 days: [Check]. 

Source: GAO analysis of relevant statutes and regulations. 

[A] An action "for a violation" is brought against the violator as a 
direct result of a finding that a violation occurred. In such actions, 
the court determines the remedy. An action for "failure to comply" is 
brought only if a violator fails to comply with an order of the 
Secretary, with the purpose of enforcing that order. 

[B] Since CPSIA, FRSA, and NTSSA are relatively new statutes, none have 
accompanying regulations yet. As a result, there is no specific mention 
of ARB. 

[End of table] 

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. 

Table 15: Whistleblowers' Available Remedies: 

Potential types of remedies permitted: 

Consumer Product Safety Commission: Consumer Product Safety Improvement 
Act of 2008; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]. 

Department of Energy: Energy Reorganization Act of 1974; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]. 

Department of Transportation: Federal Railroad Safety Act of 1970; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]; 
Punitive damages (ordered by the Secretary): [Check][B]; 
Punitive damages (ordered/enforced by the Court): [Check][B]. 

Department of Transportation: International Safe Container Act; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Compensatory damages: [Check]; 
Punitive damages (ordered/enforced by the Court): [Check]. 

Department of Transportation: National Transit Systems Security Act of 
2007; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]; 
Punitive damages (ordered by the Secretary): [Check][B]; 
Punitive damages (ordered/enforced by the Court): [Check][B]. 

Department of Transportation: Pipeline Safety Improvement Act of 2002; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]. 

Department of Transportation: Surface Transportation Assistance Act of 
1982; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]; 
Punitive damages (ordered by the Secretary): [Check][B]; 
Punitive damages (ordered/enforced by the Court): [Check][B]. 

Environmental Protection Agency: Asbestos Hazard Emergency Response Act 
of 1986; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Compensatory damages: [Check]; 
Punitive damages (ordered/enforced by the Court): [Check]. 

Environmental Protection Agency: Clean Air Act; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]; 
Punitive damages (ordered/enforced by the Court): [Check]. 

Environmental Protection Agency: Comprehensive Environmental Response, 
Compensation, and Liability Act of 1980; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]. 

Environmental Protection Agency: Federal Water Pollution Control Act; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: X[A]; 
Compensatory damages: [Check]. 

Environmental Protection Agency: Safe Drinking Water Act; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]; 
Punitive damages (ordered by the Secretary): [Check]; 
Punitive damages (ordered/enforced by the Court): [Check]. 

Environmental Protection Agency: Solid Waste Disposal Act; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: X[A]; 
Compensatory damages: [Check]. 

Environmental Protection Agency: Toxic Substances Control Act; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]; 
Punitive damages (ordered by the Secretary): [Check]; 
Punitive damages (ordered/enforced by the Court): [Check]. 

Federal Aviation Administration: Wendell H. Ford Aviation Investment 
and Reform Act for the 21st Century; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][A]; 
Compensatory damages: [Check]. 

Department of Labor: Occupational Safety and Health Act of 1970; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Compensatory damages: [Check]; 
Punitive damages (ordered/enforced by the Court): [Check]. 

Securities and Exchange Commission: Sarbanes-Oxley Act of 2002; 
Abatement (cessation) of the violation: [Check]; 
Reinstatement: [Check]; 
Back pay: [Check]; 
Costs/expense of bringing the complaint: [Check][C]; 
Compensatory damages: [Check]. 

Source: GAO analysis of relevant statutes and regulations. 

[A] Attorney fees may be included in the complainant's remedy. Costs 
and expenses are limited to those "reasonably incurred." 

[B] Punitive damages are limited to $250,000. 

[C] Attorney fees may be included in the complainant's remedy. 

[End of table] 

[End of section] 

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. 

Table 16: Labor Agencies With Anti-Retaliation Provisions: 

Mine Safety and Health Administration; Statutes and regulations: 
[Empty]; Protected activities: [Empty]. 

Federal Mine Safety and Health Act of 1977; 
Statutes and regulations: 30 U.S.C. §815(c); 29 C.F.R. Part 2700 
Subpart E; 
Protected activities: Filing a complaint, being the subject of medical 
evaluations and potential transfer, instituting a proceeding related to 
this act, testifying in such a proceeding, exercising a statutory 
right. 

Veterans' Employment and Training Services: Uniformed Services 
Employment and Reemployment Rights Act of 1994; 
Statutes and regulations: 38 U.S.C. §§4311(b), 4323, and 4324; 5 C.F.R. 
Part 353; 20 C.F.R. Part 1002; 
Protected activities: Taking an action to enforce a protection 
afforded, testifying in a proceeding, assisting/participating in an 
investigation, exercising a right. 

Employee Benefits Security Administration: Employee Retirement Income 
Security Act of 1974; 
Statutes and regulations: 29 U.S.C. §1140; 
Protected activities: Exercising any right to which he or she is 
entitled, attaining any such right, giving information/testifying in a 
proceeding. 

Employment and Training Administration: National Apprenticeship Act; 
Statutes and regulations: 29 U.S.C. §50; 29 C.F.R. §§30.16 and 30.17; 
Protected activities: Making a complaint, testifying/assisting/ 
participating in an investigation/proceeding. 

Employment and Training Administration: Workforce Investment Act of 
1998; 
Statutes and regulations: 29 U.S.C. §2934(f); 
Protected activities: Filing a complaint, instituting a proceeding 
related to this title, testifying in such a proceeding. 

Employment Standards Administration: Wage and Hour Division: Fair Labor 
Standards Act of 1938; 
Statutes and regulations: 29 U.S.C. §215(a)(3); 
Protected activities: Filing any complaint, instituting any proceeding 
related to this act, testifying in any such proceeding, serving on an 
industry committee. 

Employment Standards Administration: Wage and Hour Division: Family and 
Medical Leave Act of 1993; 
Statutes and regulations: 29 U.S.C. §2615; 29 C.F.R. Part 825.220; 
Protected activities: Filing any charge or instituting any proceeding 
related to this title, giving information in connection with an inquiry 
or proceeding, testifying in any inquiry or proceeding. 

Employment Standards Administration: Wage and Hour Division: Migrant 
and Seasonal Agricultural Worker Protection Act; 
Statutes and regulations: 29 U.S.C. §1855; 29 C.F.R. §500.9; 
Protected activities: Filing a complaint, instituting a proceeding 
related to this act, testifying in such proceedings, exercising any 
right/protection afforded by this act. 

Employment Standards Administration: Wage and Hour Division: Employee 
Polygraph Protection Act of 1988; 
Statutes and regulations: 29 U.S.C. §2002(4); 29 C.F.R. §§801.4 and 
801.7; 
Protected activities: Filing a complaint or instituting a proceeding 
related to this act, testifying in any such proceeding, exercising a 
right afforded by this Act. 

Employment Standards Administration: Wage and Hour Division: 
Immigration and Nationality Act; 
Statutes and regulations: 8 U.S.C. § 1182(n)(2)(C)(iv) and (v); 20 
C.F.R. §655.801; 29 C.F.R. §501.3; 
Protected activities: Disclosing information that evidences a 
violation, cooperating in an investigation or other proceeding, filing 
a complaint, instituting proceedings, testifying in a proceeding, 
exercising a right afforded, consulting with an attorney. 

Employment Standards Administration: Office of Federal Contract 
Compliance Programs: Executive Order 11246; 
Statutes and regulations: 
Executive Order 11246; 41 C.F.R. §60-1.32; 41 C.F.R. Part 60-30; 
Protected activities: Filing a complaint, assisting/participating in an 
investigation/hearing, opposing an unlawful act/practice, exercising a 
right protected by the order. 

Employment Standards Administration: Office of Federal Contract 
Compliance Programs: Vietnam Era Veterans' Readjustment Assistance Act 
of 1972; 
Statutes and regulations: 38 U.S.C. §4212; 41 C.F.R. §§60-250.65 and 60-
250.69; 
Protected activities: Filing a complaint, assisting/participating in an 
investigation/hearing, opposing an unlawful act/practice, exercising a 
right protected by the act. 

Employment Standards Administration: Office of Federal Contract 
Compliance Programs: § 503 of the Rehabilitation Act of 1973; 
Statutes and regulations: 29 U.S.C. §793; 41 C.F.R. §§60-741.65 and 60-
741.69; 
Protected activities: Filing a complaint, assisting/participating in an 
investigation/ hearing, opposing an unlawful act/practice, exercising a 
right protected by the act. 

Employment Standards Administration: Office of Workers' Compensation 
Programs: Longshore and Harbor Workers' Compensation Act; 
Statutes and regulations: 33 U.S.C. §948a; 20 C.F.R. Part 802; 29 
C.F.R. Part 18; 
Protected activities: Claiming compensation, testifying in a 
proceeding. 

Office of the Assistant Secretary for Administration and Management: 
§ 504 of the Rehabilitation Act of 1973; 
Statutes and regulations: 29 U.S.C. §794; 29 C.F.R. §§32.45(g), 32.47, 
and 31.9 - 31.11; 
Protected activities: Filing a complaint, furnishing information, 
assisting/ participating in an investigation/hearing or other 
activities related to the administration of the act. 

Office of the Assistant Secretary for Administration and Management: 
Title VI of the Civil Rights Act of 1964; 
Statutes and regulations: 42 U.S.C. §2000(d); 29 C.F.R. §§31.7(e) and 
31.9 - 31.11; 
Protected activities: Making a complaint, testifying/assisting/ 
participating in an investigation/proceeding. 

Office of the Assistant Secretary for Administration and Management: 
§ 119 of the Rehabilitation, Comprehensive Services, and Developmental 
Disabilities Amendments of 1978 (amending Rehabilitation Act §504); 
Statutes and regulations: 29 U.S.C. §794; 29 C.F.R. §§33.12 and 33.13; 
Protected activities: Filing a complaint, furnishing information, 
assisting/participating in an investigation/hearing or other activities 
related to the administration of §504 and the regulations in this part. 

Office of the Assistant Secretary for Administration and Management: 
Age Discrimination Act of 1975; 
Statutes and regulations: 42 U.S.C. §6101; 29 C.F.R. §§35.35, 35.37, 
and 31.9 - 31.11; 
Protected activities: Asserting a right protected by the act or this 
part, cooperating in an investigation/hearing. 

Office of the Assistant Secretary for Administration and Management: 
Title IX of the Education Amendments of 1972; 
Statutes and regulations: 20 U.S.C. §1681; 29 C.F.R. §§31.7, 36.605, 
and 31.9 - 31.11; 
Protected activities: Making a complaint, testifying/assisting/ 
participating in an investigation/proceeding. 

Office of the Assistant Secretary for Administration and Management: 
Workforce Investment Act of 1998; 
Statutes and regulations: 29 U.S.C. §2801; 29 C.F.R. §§37.11, 37.111, 
and 37.60 et seq. Subpart D.; 
Protected activities: Filing a complaint, opposing a prohibited 
practice, assisting in an investigation/hearing. 

Source: GAO analysis of relevant statues and regulations. 

[End of table] 

[End of section] 

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

U.S. Department of Labor: 

December 12. 2008: 

George A. Scott, Director: 
Education, Workforce, and Income Security Issues: 
Government Accountability Office: 
441 G Street, NW: 
Washington, DC 20548: 

Dear Mr. Scott: 

Thank you for the opportunity to comment on GAO's proposed report, 
Whistleblower Protection Program: Better Data and Improved Oversight 
Would Help Ensure Program Quality and Consistency. As you know, the 
Occupational Safety and Health Administration (OSHA) plays a unique 
role in enforcing the important whistleblower protection laws under our 
authority. OSHA investigators act as neutral fact-finders, testing both 
the complainant's allegations of retaliation and the respondent's 
defense that any adverse action taken was for a non-retaliatory reason. 

We have been implementing a number of improvements to the management 
and oversight of the program during this Administration, and we agree 
with GAO that there is room for improvement in OSHA's processing of 
whistleblower complaints. Nevertheless, we believe that the report 
understates the efficiency and quality of OSHA's investigations, as 
well as the agency's commitment to providing meaningful whistleblower 
protection to key sectors of the American workforce, and provide the 
below comments in response. 

Resources: 

GAO's report appropriately acknowledges "significant resource 
constraints," on OSHA's program but fails to take that issue into 
account in developing its findings or recommendations as to resource 
concerns. In 1981, there was only one whistleblower statute enforced by 
OSHA under section 11(c) of the Occupational Safety and Health Act. 
Because of the expertise of OSHA investigators, whistleblower 
investigative and administrative responsibilities under 16 statutes 
have been added since then - many with different procedural and more 
complex legal issues than the original OSH Act. These include corporate 
fraud under the Sarbanes-Oxley Act and air carrier safety under AIR21. 
Moreover, in most cases, Congress did not appropriate additional funds 
to meet the concomitant implementation and enforcement responsibilities 
that came with the new whistleblower statutes. With that said, OSHA has 
endeavored to provide investigators with the necessary resources to 
conduct thorough investigations. 

Training: 

The draft report also does not adequately acknowledge the significant 
steps the agency has made to address investigator training needs. For 
example, OSHA has completely redesigned its mandatory training 
curriculum for investigators. Nearly one-third of investigative staff 
has already completed the new two-week training course, which 
supplements the introductory course and covers all federal 
whistleblower protection statutes administered by OSHA. The next 
session of the federal statutes course will be conducted in January 
2009. 

Challenges Arising from Disparities in the Whistleblower Statutes: 

GAO appropriately noted that there is much greater complexity for 
investigations conducted under statutes like Sarbanes-Oxley, but failed 
to take that fact or other variations among the 17 statutes into 
account in noting inconsistencies in processing. Leaving aside the 
added complexity of recent statutes, the marked differences in 
statutory timeframes for investigations can often undermine efficiency 
in processing. For example, OSHA is often forced to prioritize the 30-
day cases instead of relying on a consistent principle that cases 
should ordinarily be investigated in the order that they are received. 
Nevertheless, in investigating complaints under all these statutes, 
OSHA applies its expertise in resolving retaliation issues. 

Recommendation that Regions Perform and Complete Audits within 
Specified Timeframes: 

OSHA appreciates GAO's finding that OSHA has "taken steps to strengthen 
its audit program" and strongly supports the completion of program 
audits within set timeframes. GAO's report, however, erroneously 
concludes that audits are not being completed timely. As discussed with 
GAO, all scheduled audits have been completed in a timely manner since 
OSHA's Management Accountability Program (MAP) was implemented in FY 
2006, according to MAP and the regional audit work plans. OSHA also has 
every expectation that comprehensive, on-site audits will be completed 
for all remaining covered field locations by the end of the four-year 
audit cycle. Therefore, OSHA believes that GAO's sixth recommendation 
is based on incorrect assumptions. In addition, GAO fails to note in 
its findings and recommendations that, like the whistleblower program, 
OSHA's audit program faces resource challenges in implementing 
significant changes to its program. With that said, OSHA had been 
completing and expects to continue to complete its audits in a timely 
manner, and will carefully consider the other recommendations to 
improve its audit program. 

OSHA remains committed to fulfilling its important responsibilities 
under the whistleblower programs it enforces and is always seeking to 
improve its programs. Please do not hesitate to contact us if you have 
questions concerning this response or if we can be of further 
assistance. 

Sincerely, 

Signed by: 

Thomas M. Stohler: 
Acting Assistant Secretary: 

[End of letter] 

U.S. Department of Labor: 
Administrative Review Board: 
200 Constitution Avenue, N.W. 
Washington, D.C. 20210: 

December 12, 2008: 

George A. Scott, Director: 
Education, Workforce and Income Security Issues: 
Government Accountability Office: 
441 G Street, NW: 
Washington. D.C. 20548: 

Dear Mr. Scott: 

Thank you for the opportunity to comment on the Government 
Accountability Office's (GAO) proposed report, "Whistleblower 
Protection Program: Better Data and Improved Oversight Would Help 
Ensure Program Quality and Consistency." The following comments are 
submitted on behalf of the Department of Labor's Administrative Review 
Board's (ARB) appellate program. 

ARB has implemented a number of improvements to the management and 
oversight of its appellate programs throughout this Administration, 
including as to whistleblower appeals. While we agree with GAO that 
there is always room for improvement, the ARB believes that its 
internal controls are appropriate for managing the Board's appellate 
docket. 

GAO's report omits the fact that the ARB's case tracking system 
database is not the only tool we use to track our performance. We have 
separate monthly and annual reports showing among other things the case 
issue date, the assigned personnel, and the number of cases closed. 
Using our case tracking system database in conjunction with the monthly 
and annual report, the ARB is able to track the average age of a case 
and other necessary data. For example, reliable and accurate data 
collected by ARB reflects the following performance: 

1. In February 2002, the ARB had 29 cases pending that were over two 
years old. Today, there are only nine cases over two years 
old.[Footnote 28] The average age of a pending case has been reduced 
from 13.3 months in 2002 to 11.5 months at the end of FY 2008. 

2. ARB staff productivity has more than doubled in the last seven 
years, and the cases closed per year has increased by 50% from an 
average of 100 cases per year in the three years preceding 2002 to 150 
cases per year in the six years following 2002. 

3. Also, the ARB's decisions are being affirmed when reviewed by the 
U.S. Courts of Appeals. From FY 2002 through FY 2008, the U.S. Courts 
of Appeals affirmed ARB decisions over 95% of the time. 

The ARB, however, also agrees with the report's suggestion that the 
data entered into ARB's tracking system should be accurate, reliable 
and useful. The ARB has taken, and will continue to take, steps to 
improve the system and appreciates the recommendations from GAO for 
continued improvements. 

In conclusion, we believe the appellate whistleblower program is being 
responsibly administered. We appreciate GAO's recommendations for 
continued improvement and the opportunity to comment on the report. 
Please do not hesitate to contact us if you have questions concerning 
this response or if we can be of further assistance. 

Sincerely, 

Signed by: 
M. Cynthia Douglass: 
Chair, Administrative Review Board: 
U.S. Department of Labor: 

[End of section] 

Appendix V: GAO Contact and Staff Acknowledgments: 

GAO Contact: 

George Scott, Director (202) 512-7215 or scottg@gao.gov: 

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. 

[End of section] 

Related GAO Products: 

Government Auditing Standards, January 2007 Revision. [hyperlink, 
http://www.gao.gov/products/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. 
[hyperlink, http://www.gao.gov/products/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. [hyperlink, http://www.gao.gov/products/GAO-04-658]. 
Washington, D.C.: June 18, 2004. 

Whistleblowers: Management of the Program to Protect Trucking Company 
Employees Against Reprisal. [hyperlink, 
http://www.gao.gov/products/GAO/GGD-88-123]. Washington, D.C.: 
September 22,1988. 

[End of section] 

Footnotes: 

[1] Throughout this report, unless specifically stated otherwise, 
"statute," "whistleblower statute," "OSHA statute," "DOL statute," and 
similar language refer only to the whistleblower provisions of the 
referenced law, and not the entire statute or act. 

[2] Federal workers who become whistleblowers are protected through the 
Whistleblower Protection Act. Generally, claims for whistleblower 
protections for federal employees may be raised before the Merit 
Systems Protection Board or the Office of Special Counsel. 

[3] OSHA did not complete any cases in fiscal year 2007 under the 
Federal Railroad Safety Act of 1970, the National Transit Systems 
Security Act of 2007, or the Consumer Product Safety Improvement Act of 
2008 because these whistleblower provisions were recently enacted. It 
also did not receive any complaints under the International Safe 
Container Act. 

[4] This report focused solely on protections for whistleblowers under 
the Surface Transportation Assistance Act of 1982. See GAO, 
Whistleblowers: Management of the Program to Protect Trucking Company 
Employees Against Reprisal, [hyperlink, 
http://www.gao.gov/products/GAO/GGD-88-123] (Washington, D.C.: Sept. 
22, 1988). 

[5] Department of Labor, Office of Inspector General, Evaluation of 
OSHA's ERA and EPA Whistleblower Investigations, Report No. 2E-10-105- 
001 (Washington, D.C.: Mar. 16, 2001). 

[6] The regional offices we visited were Atlanta, Denver, New York, 
Philadelphia, and Seattle. 

[7] In this document, the term "whistleblower program" refers to OSHA's 
Whistleblower Protection Program. 

[8] Throughout this report, when we refer to OSHA's database we mean 
the Integrated Management Information System. 

[9] Office of Management and Budget OMB Circular A-123, Management's 
Responsibility for Internal Control (Washington, D.C.: Dec. 21, 2004.) 

[10] GAO, Government Auditing Standards, January 2007 Revision, 
[hyperlink, http://www.gao.gov/products/GAO-07-162G], Section 1.02 
(Washington, D.C.: Jan. 31, 2007). 

[11] This audit program requires regions to evaluate some aspect of 
operations every year and conduct comprehensive audits every 4 years. 

[12] OSHA officials report that the agency evaluates performance based 
on a 90-day overall average processing time for all investigations, 
regardless of the statutory or regulatory time frame. OSHA considers 90 
days to be the most reasonable of the various statutory and regulatory 
time frames, for how long investigations should take, given the 
exigencies of the investigative process as well as the need to provide 
employers with reasonable time frames for responding. Moreover, two- 
thirds of OSHA's cases fall under a 90-day deadline. 

[13] The environmental statutes we refer to do not include the Asbestos 
Hazard Emergency Response Act, which has a 90-day time frame. 

[14] Cases under statutes other than the Occupational Safety and Health 
Act, Asbestos Hazard Emergency Response Act, and the International Safe 
Container Act generally may be heard at the Office of Administrative 
Law Judges. 

[15] Only cases under one statute--the Surface Transportation 
Assistance Act--have a time frame for the OALJ hearing process. The 
OALJ completed only 4 of the 55 trucking cases closed in fiscal year 
2007 within this 60-day time frame. 

[16] The remaining 11 case files lacked documentation about when the 
case was opened. 

[17] We were unable to determine if four cases met the statutory time 
frames because we lacked information about the date of the OALJ 
hearing. These four cases all fell under the Sarbanes-Oxley Act. 

[18] In this report, we counted settlements that provided a remedy for 
the whistleblower as a favorable decision or outcome. 

[19] According to agency officials, about seven of every 10 of these 
settlements were settled with the direct involvement of OSHA. The 
remainder were settled by the parties alone, without OSHA involvement. 

[20] OSHA procedures provide that complaints filed under the other 
statutes it administers may not be closed administratively. Rather, 
complaints that are untimely or do not present a prima facie case will 
be docketed and a written determination issued (unless the complainant 
withdraws the complaint). 

[21] A review of jurisdictional issues might include determining that 
wages not paid is under the purview of Labor's Wage and Hour Division, 
rather than OSHA's whistleblower provisions. 

[22] In this context, the prima facie elements of a violation are: 1) 
the complainant engaged in an activity protected by the specific 
statute; 2) the respondent was aware of or suspected that the 
complainant engaged in a protected activity; 3) the complainant 
suffered some form of adverse action such as discharge, demotion, or 
harassment; and 4) a causal link (nexus) between the protected activity 
and the adverse action. 

[23] According to OSHA officials, the Appeals Committee cannot overturn 
a case; it can only agree with OSHA's decision that a case does not 
have merit or, if there are potential grounds to change the original no-
merit finding, it can refer the case back to the originating OSHA 
office for reinvestigation. 

[24] ARB is required to automatically review any OALJ decision under 
the Surface Transportation Assistance Act, so these cases are not 
actually appealed to ARB. Of the 36 settlement cases reviewed by the 
ARB in 2007, 32 were settlement agreements that were completed while 
the appeals were being adjudicated by OALJ. Four of the settlement 
agreements were signed during the ARB adjudication process and were 
included in our merit calculations. We excluded all but one of the 
Surface Transportation Assistance Act decisions in our calculations so 
the total number of cases will differ from the number used in our 
processing time analysis. 

[25] See GAO, OSHA'S Complaint Response Policies: OSHA Credits Its 
Complaint System with Conserving Agency Resources, but the System Still 
Warrants Improvement, [hyperlink, 
http://www.gao.gov/products/GAO-04-658] (Washington, D.C.: June 18, 
2004) and Workplace Safety and Health: OSHA's Oversight of Its Civil 
Penalty Determination and Violation Abatement Processes Has 
Limitations, [hyperlink, http://www.gao.gov/products/GAO-04-920] 
(Washington, D.C.: Aug. 13, 2004). 

[26] GAO, Government Auditing Standards, January 2007 Revision, 
[hyperlink, http://www.gao.gov/products/GAO-07-162G], Sections 3.02, 
3.03, and 3.22 (Washington, D.C.: Jan. 31, 2007). 

[27] We grouped six environmental statutes under one case type, called 
environmental protection statutes, which mirrors OSHA's approach. These 
statutes are Clean Air Act; Comprehensive Environmental Response, 
Compensation, and Liability Act; Federal Water Pollution Control Act; 
Safe Drinking Water Act; Solid Waste Disposal Act; and Toxic Substances 
Control Act. 

[28] Among reasons for old cases are those cases stayed due to 
bankruptcy or parties requests in cases awaiting outcome of litigation 
in other federal courts that could affect the ARB disposition. Also, 
the parties may request extensions of time for various reasons. 

[End of section] 

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