The Qui Tam Team Blog Join In the Fight Against Fraud

Independent Watchdogs on OSHA Whistleblowers: A Broken Reflection

This post was written by Jack D. Howard

Government auditors are blowing the whistle on the Occupational Safety and Health Administration (OSHA), the leading investigative branch for workplace safety in the Department of Labor (DOL).

The first called foul against OSHA's whistleblower program came in August, 2010, when the Government Accounting Office (GAO) concluded OSHA functioned as though its field investigators were simply overwhelmed by the scope of their job. The GAO report was sweepingly negative: “OSHA could not provide assurance that complainants were protected as intended under the various whistleblower protection statutes.”

OSHA is responsible for maintaining the Office of Whistleblower Protection Programs (OWPP). The OWPP is critical in the field: OSHA is primarily responsible for investigating 19 first-line whistleblower laws.

Critics of OSHA's investigative record argue that the concept is simple enough..if whistleblowers don't feel protected from being fired for what they know, then they are generally less willing to take a risk to share their knowledge. Even worse, OSHA's critical ability to gather safety information will be compromised, if it won't take the lead in whistleblower protection.

Less obvious in the GAO report was precisely how to remedy OSHA's glaring faults. A second and separate agency audit, this time from DOL's Office of Inspector General (OIG) ,was released in September, 2010, and used unusually blunt language against a sister agency. The GAO's stinging report alleges an array of inadequate whistleblower protections by OSHA. The GAO report, revealing the portrait of an agency with a potential bias against supporting whistleblowers, added fresh doubts to OSHA's field safety record. Among the enforcement errors, OSHA is alleged to fail to meet even its own internal whistleblower standards in a host of critical areas.

Among the leading complaints by the DOL/OIG:

• Almost 80% of the agency's whistleblower investigations failed at least one element of OSHA's own Whistleblower Investigations Manual.
• Critics believe OSHA's 2% merited case findings of retaliation complaints was likely too low.
• Final rulings, without conducting minimal face-to-face interviews, occurred in almost half of OSHA's whistleblower investigations.

Conclusion: Faulting OSHA's Internal Culture

Worrisome to many experts in the whistleblower field is wonder if OSHA may have simply developed a culture of disconcern toward internal reforms. Ironically, months before the scathing audits, an internal OSHA memo addressed this potential tone deafness.

Subsequent testimony before Congress detailed OSHA's apparently lax attitude toward whistleblower protections. Representatives of the Public Employees for Environmental Responsibility (PEER) have alleged OSHA's handling of industry whistleblowers was not isolated to a few cases. Instead, PEER believes OSHA's inattention to internal industry reports reflects OSHA's own attitudes toward its own potential whistleblowers”

“OSHA does not effectively protect workers who report health and safety hazards or other violations and dangers. Moreover, OSHA does not protect its own specialists from retaliation for raising health and safety issues or concerns about the consequences of OSHA’s own actions – or inaction.” March 4, 2010 “OSHA Listens” Stakeholder Session OSHA Docket # OSHA-2010-0004."

PEER has also staked out its position that OSHA can no longer be trusted to watch after whistleblowers. Instead, the group now advocates removing whistleblower investigations from the department altogether.

Sources:
"Complainants DId Not Always Receive Appropriate Investigations Under the Whistleblower Protection Program." http://www.oig.dol.gov/public/reports/oa/2010/02-10-202-10-105.pdf
"OSHA Must Address Crippling Weaknesses in Whistleblower Protection" http://peer.org/docs/osha/3_4_10_PEER_OSHA_Listens_testimony.pdf
"Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency" http://www.gao.gov/products/GAO-09-106

This article is brought to you by the QTT, the epicenter for whistleblowers and people interested in the False Claims Act, Qui Tam Provisions, and Medicare and Medicaid fraud. To discuss a potential case, please call Eric Young at 1 (800) 590-4116.