OSHA's Complaint Response Policies
OSHA Credits Its Complaint System with Conserving Agency Resources, but the System Still Warrants Improvement
Gao ID: GAO-04-658 June 18, 2004
Each year, OSHA receives thousands of complaints from employees alleging hazardous conditions at their worksites. How OSHA responds to these complaints--either by inspecting the worksite or through some other means--has important implications for both the agency's resources and worker safety and health. Responding to invalid or erroneous complaints would deplete inspection resources that could be used to inspect or investigate other worksites. Not responding to complaints that warrant action runs counter to the agency's mission to protect worker safety and health. Considering OSHA's limited resources, and the importance of worker safety, GAO was asked: (1) What is OSHA's current policy for responding to complaints in a way that conserves its resources, (2) how consistently is OSHA responding to complaints, and (3) to what extent have complaints led OSHA to identify serious hazards?
In general, the Occupational Safety and Health Administration (OSHA) responds to complaints according to the seriousness of the alleged hazard, a practice that agency officials say conserves inspection resources. OSHA officials usually conduct on-site inspections for alleged hazards that could result in death or serious injury. For less serious hazards, OSHA officials generally investigate by phoning employers and faxing them a description of the alleged hazard. Employers are directed to provide the agency with proof of the complaint's resolution. OSHA officials said the availability of both options allows them to manage resources more effectively when responding to complaints. However, many agency officials we interviewed said some complainants provide erroneous information about the alleged hazard, which can affect the agency's determination of the hazard's severity. For example, some complainants lack the expertise to know what is truly hazardous and, as a result, file complaints that overstate the nature of the hazard. Others, particularly disgruntled ex-employees, may have ulterior motives when filing complaints and misrepresent the nature of the hazard. In the 42 area offices where we conducted interviews (there are 80 area offices), OSHA officials described practices for responding to complaints that varied considerably. For example, the degree to which supervisors participated in decisions about which complaints would result in inspections and which would not varied across offices. While OSHA requires annual audits that would identify the extent to which its area offices are correctly employing the complaint policies, some regions are not conducting these audits, and agency officials have told us that OSHA does not have a mechanism in place to address agencywide problems. To some extent complaints direct inspection resources where there are serious hazards. At half the worksites OSHA inspected in response to complaints, compliance officers found serious violations--those that posed a substantial probability of injury or death, according to OSHA's own data for fiscal years 2000-2001.
Recommendations
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GAO-04-658, OSHA's Complaint Response Policies: OSHA Credits Its Complaint System with Conserving Agency Resources, but the System Still Warrants Improvement
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Report to the Chairman, Subcommittee on Workforce Protections,
Committee on Education and the Workforce, House of Representatives:
United States General Accounting Office:
GAO:
June 2004:
OSHA'S COMPLAINT RESPONSE POLICIES:
OSHA Credits Its Complaint System with Conserving Agency Resources, but
the System Still Warrants Improvement:
OSHA's Complaint Response Policies:
GAO-04-658:
GAO Highlights:
Highlights of GAO-04-658, a report to the Chairman, Subcommittee on
Workforce Protections, Committee on Education and the Workforce, House
of Representatives
Why GAO Did This Study:
Each year, OSHA receives thousands of complaints from employees
alleging hazardous conditions at their worksites. How OSHA responds to
these complaints”either by inspecting the worksite or through some
other means”has important implications for both the agency‘s resources
and worker safety and health. Responding to invalid or erroneous
complaints would deplete inspection resources that could be used to
inspect or investigate other worksites. Not responding to complaints
that warrant action runs counter to the agency‘s mission to protect
worker safety and health. Considering OSHA‘s limited resources, and
the importance of worker safety, GAO was asked: (1) What is OSHA‘s
current policy for responding to complaints in a way that conserves its
resources, (2) how consistently is OSHA responding to complaints, and
(3) to what extent have complaints led OSHA to identify serious
hazards?
What GAO Found:
In general, the Occupational Safety and Health Administration (OSHA)
responds to complaints according to the seriousness of the alleged
hazard, a practice that agency officials say conserves inspection
resources. OSHA officials usually conduct on-site inspections for
alleged hazards that could result in death or serious injury. For less
serious hazards, OSHA officials generally investigate by phoning
employers and faxing them a description of the alleged hazard.
Employers are directed to provide the agency with proof of the
complaint‘s resolution. OSHA officials said the availability of both
options allows them to manage resources more effectively when
responding to complaints. However, many agency officials we interviewed
said some complainants provide erroneous information about the alleged
hazard, which can affect the agency‘s determination of the hazard‘s
severity. For example, some complainants lack the expertise to know
what is truly hazardous and, as a result, file complaints that
overstate the nature of the hazard. Others, particularly disgruntled
ex-employees, may have ulterior motives when filing complaints and
misrepresent the nature of the hazard.
In the 42 area offices where we conducted interviews (there are 80 area
offices), OSHA officials described practices for responding to
complaints that varied considerably. For example, the degree to which
supervisors participated in decisions about which complaints would
result in inspections and which would not varied across offices. While
OSHA requires annual audits that would identify the extent to which its
area offices are correctly employing the complaint policies, some
regions are not conducting these audits, and agency officials have
told us that OSHA does not have a mechanism in place to address
agencywide problems.
To some extent complaints direct inspection resources where there are
serious hazards. At half the worksites OSHA inspected in response to
complaints, compliance officers found serious violations”those that
posed a substantial probability of injury or death, according to OSHA‘s
own data for fiscal years 2000-2001.
Potential Falls Are One of the Hazards OSHA Tries to Prevent:
[See PDF for image]
[End of figure]
What GAO Recommends:
The Secretary of Labor should take steps to improve the quality of
information received from complainants and to ensure area offices
comply with complaint practices established by the agency. Labor
disagreed with our recommendation to take additional actions to improve
the quality of complaint information, but generally it agreed with
recommendations to ensure compliance with the agency‘s complaint
practices.
www.gao.gov/cgi-bin/getrpt?GAO-04-658.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Robert Robertson, (202)
512-7215 robertsonr@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Seriousness of Alleged Hazards Drives Complaint Response, although
Erroneous Information Can Affect These Determinations:
Although Consistent Handling of Complaints Is a Key OSHA Principle,
Practices in Some Area Offices Varied:
Complaints Have, to Some Extent, Drawn OSHA to Serious Hazards at
Worksites:
Conclusion:
Recommendations for Executive Action:
Agency Comments:
Appendix I: Scope and Methodology:
Appendix II: Comments from the Department of Labor:
GAO Comments:
Appendix III: Staff Acknowledgments:
Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: Number and Percentage of Inspected Worksites with Serious
Violations, by Type, Fiscal Years 2000 and 2001:
Table 2: National Average for Hours per Inspection, by Type of
Inspection or Investigation, Fiscal Years 2000 to 2002:
Table 3: Most Frequently Cited OSHA Standards for Complaint-Driven and
Planned Inspections, Fiscal Years 2000 to 2002:
Table 4: Ten Industries with Highest Rates and Ten Industries with
Lowest Rates of Injuries and Illnesses and Corresponding Rate of
Complaint Inspections, Calendar Year 2001:
Figures:
Figure 1: OSHA's 10 Regions:
Figure 2: Summary of OSHA's Complaint Protocol:
Figure 3: Correlation between an Industry's Injury and Illness Rate and
Its Complaint Inspection Rate, Calendar Year 2001:
Abbreviations:
BLS: Bureau of Labor Statistics:
IMIS: Integrated Management Information System:
NLRA: National Labor Relations Act:
OSHA: Occupational Safety and Health Administration:
United States General Accounting Office:
Washington, DC 20548:
June 18, 2004:
The Honorable Charles Norwood:
Chairman, Subcommittee on Workforce Protections,
Committee on Education and the Workforce,
House of Representatives:
Dear Mr. Chairman:
In 1975, high levels of Kepone, a pesticide linked to liver damage,
sterility, neurological disorders, and cancer, were found in the
bloodstreams of approximately 70 workers at a company in Virginia. This
was followed by another discovery: the Occupational Safety and Health
Administration (OSHA), part of the Department of Labor (Labor), had
received a complaint from a former employee of the company but had
assigned it a low-priority status and had not responded with an
inspection. The highly public controversy that followed led OSHA to
focus on being more responsive to all types of complaints. In the wake
of this case, the agency has changed and modified its complaint policy
more than once. OSHA's first policy change, in 1975--to conduct an on-
site inspection for virtually any complaint about unsafe conditions,
even anonymous ones--resulted in a large and overwhelming backlog of
complaints awaiting inspection. In 1996, OSHA instituted a new effort
to balance resources with the need to respond to complaints by
responding to less serious complaints through means other than on-site
inspections. In view of this reform, and given OSHA's current ratio of
one compliance officer for roughly every 6,000 worksites, you asked us
to answer the following questions: (1) What is OSHA's current policy
for responding to complaints in a way that conserves its resources? (2)
How consistently is OSHA responding to complaints? and (3) To what
extent have complaints led OSHA to identify serious hazards?
To answer these questions, we visited the three OSHA area offices that
handled the largest number of complaints in their respective regions in
fiscal years 2000 through 2002: Pittsburgh, Pennsylvania; Austin,
Texas; and Denver, Colorado. In each of these offices, we examined a
randomly selected sample of case files (34 in Pittsburgh, 30 in Austin,
and 38 in Denver) and interviewed the area director and available
compliance officers. In addition, we randomly selected and interviewed
by telephone 52 OSHA officials: 20 of the agency's 80 area directors
and 32 of its 1,200 compliance officers, (12 assistant area directors
who are supervisory compliance officers and 20 nonsupervisory
compliance officers). These officials represented 42 of OSHA's 80 area
offices. We also spoke to OSHA officials in the agency's 10 regional
offices, as well as health and safety officials in 13 states that run
their own programs. Finally, we examined data for fiscal years 2000
through 2002 related to complaints in OSHA's Integrated Management
Information System (IMIS) and looked at data on injuries and illnesses
collected and published by the Bureau of Labor Statistics (BLS) for
calendar year 2001 as they related to complaints. We interviewed both
OSHA and BLS officials to establish the reliability of the data. In
addition, for the IMIS data we obtained and reviewed documentation of
internal controls and manually tested the data. We also interviewed 15
randomly selected employers who had been the subject of an OSHA
complaint and 6 employees who had filed complaints. For a more detailed
explanation of our methodology, see appendix I. We conducted our work
between September 2003 and January 2004 in accordance with generally
accepted government auditing standards.
Results in Brief:
In general, OSHA responds to complaints according to the seriousness of
the alleged hazard, a policy credited with conserving agency resources,
although its determinations of whether an inspection is warranted can
be affected by the quality of information complainants provide.
Initiated in 1996 to improve its complaint-handling process, OSHA's
policy of prioritization largely requires that an on-site inspection be
conducted when a complainant alleges a serious hazard that could result
in death or serious injury. OSHA will also conduct an on-site
inspection if a current employee provides a written and signed
complaint establishing reasonable grounds that a specific safety or
health standard has been violated. Generally, however, for complainants
not alleging a serious hazard, OSHA officials respond by phone,
contacting employers and faxing them a description of the complaint.
For these "phone/fax investigations," employers must determine if the
complaint is valid and submit documentation to demonstrate that the
hazard has been removed. The phone/fax option for the less than serious
hazards has helped to improve efficiency, according to OSHA officials
with long-standing experience at the agency, who said it has saved time
and also eliminated their inspection backlog. Most agency officials we
interviewed also acknowledged, however, that this efficiency can be
affected by the accuracy or validity of the information they receive
from complainants. A complainant may misidentify a hazard, for example,
or a competitor may misrepresent conditions at a competitor's worksite
to disrupt its operation, according to OSHA compliance officers. When
asked, compliance officers and supervisors, as well as officials from
states that run their own health and safety programs, offered some
suggestions for improving the validity of incoming complaints.
Although OSHA has policies for responding to complaints in a systematic
and timely manner, we found inconsistencies in practices across area
offices. Some of these practices involved departures from agency
policy, while others were practices that varied to a degree that could
undermine the agency's goal of consistent treatment of complainants and
employers. In terms of policy, office practices departed, in
particular, with regard to who evaluated complaints and how written and
signed complaints were handled. With regard to uniform practice, we
found some variation among the 42 offices we contacted in terms of
their follow-up practices after an investigation, how they verified the
employment status of complainants, how they treated e-mail complaints,
and how they pursued certain complaints for which the agency has no
specific standard. Since issuing its new directive for handling
complaints in 1996, OSHA has issued no guidance to reinforce, clarify,
or update those procedures. And while OSHA requires the regional
administrators to annually audit their area office operations, only 5
of the 10 regions do so. Furthermore, for the regions that do conduct
these audits, OSHA currently does not have a mechanism in place to
recognize or address problems that have been identified at an
agencywide level.
Complaints have, to some extent, directed OSHA compliance officers to
sites with serious hazards. According to OSHA's own database for fiscal
years 2000 and 2001, compliance officers found serious violations--
hazards that pose a substantial probability of injury or death--at half
the worksites inspected in response to complaints. This 50 percent
"success" rate for complaint-driven inspections is comparable to the
agency's success rate for some of its planned inspections--specifically
those conducted at worksites targeted because of their high injury and
illness rates. However, in one of our earlier reports on how OSHA
targets inspections, we expressed concern that a 50 percent success
rate may indicate that the agency is directing inspection resources to
sites that have no serious violations.[Footnote 1] In addition to this
similarity, we also found that 7 of the 10 violations cited most
frequently during complaint-driven inspections were also among the 10
most frequently cited during planned inspections. Through our analysis,
we also found some correlation between hazardous industries and
complaint inspections. Specifically, those industries that, according
to BLS data, had higher rates of injuries and illnesses also generally
had higher rates of complaint inspections, according to OSHA's data.
For example, industries that fabricate metal products had the highest
rate of complaint inspections and the third highest rate of injuries
and illnesses in 2001. For a handful of industries, this pattern did
not apply, with the number of complaints being either higher or lower
than might have been expected, given the number of injuries, illnesses,
and lost workdays.
* We are making recommendations that the Secretary of Labor direct the
Assistant Secretary for Occupational Safety and Health to take steps to
improve the quality of information elicited from complainants and take
steps to ensure that practices carried out by area offices in response
to complaints comply with those procedures established by the agency.
In responding to a draft of this report, Labor agreed that it is
important to screen out unwarranted and ill-founded complaints, but it
stated that its current actions were sufficient and that it would not
want to pursue actions that could discourage employees from exercising
their right to request an inspection when they feel their workplace is
unsafe. We maintain that OSHA could do more to improve the quality of
complaint information and believe that better information could be
collected without discouraging complaints. With regard to our
recommendation to revise the directive on complaint policies, the
agency stated that it has initiated a revision and that our
recommendations would be thoroughly considered and incorporated where
appropriate. Labor did not address our recommendations to develop a
system for ensuring the regions complete audits and use the audit
results to improve consistency of the complaint process.
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 healthful working conditions for working men and women. The
act authorizes OSHA to conduct "reasonable" inspections of any
workplace or environment where work is performed by an employee of an
employer.[Footnote 2] The act also requires that OSHA conduct
investigations in response to written and signed complaints of
employees alleging that a violation of health or safety standards
exists that threatens physical harm, or that an imminent danger exists
at their worksites, unless OSHA determines that there are no reasonable
grounds for the allegations.[Footnote 3] OSHA inspections fall into two
broad categories: those that are "programmed" and those that are
"unprogrammed." Programmed inspections are those the agency plans to
conduct because it has targeted certain worksites due to their
potential hazards. Unprogrammed inspections are not planned; instead,
they are prompted by things such as accidents or complaints.
How OSHA responds to complaints has changed over time. In the wake of
the Kepone case, OSHA started to inspect virtually any complaint, which
led to a backlog of complaint-driven inspections, according to
interviewed officials. In its early response to the backlog, OSHA
adopted a complaint process whereby each complaint was categorized
based on whether or not it was written and signed by complainants.
"Formal" complaints met both conditions, while "nonformal" complaints
were oral or unsigned. OSHA further categorized complaints by the
seriousness of the hazard alleged. Formal complaints were inspected
regardless of whether the hazard alleged was serious, although offices
were given longer time frames for responding to those that were other
than serious. The agency generally handled nonformal complaints by
sending the employer a letter.[Footnote 4] Agency officials said that
as a result of these distinctions, the agency was able to reduce some
of its backlog.
A new effort to reform the complaint procedures was made through the
Complaint Process Improvement Project, which was part of the Department
of Labor's overall reinvention effort from 1994 to1996.[Footnote 5] In
January 1994, two area offices were selected as pilot sites to develop
and test new procedures for handling complaints. Their work focused on
an effort to (1) reduce the time needed for handling complaints, (2)
speed the abatement of hazards, (3) allow OSHA to focus its inspections
resources on workplaces where they were needed most, and (4) ensure
consistency. The new procedures placed a greater emphasis on the
seriousness of the alleged hazard as a factor for determining how the
office would respond to a complaint. In addition, they introduced the
use of telephones and fax machines as the means to notify employers of
an alleged hazard instead of regular mail and provided specific
procedures for following up with employers to make sure hazards were
abated. These new policies were adopted and outlined in an OSHA
directive dated June 1996.
Policies regarding complaints are established by the Office of
Enforcement Directorate in Washington, D.C. Regional administrators in
each of OSHA's 10 regional offices oversee the enforcement of these
policies within their own regions (see fig. 1). Each region is composed
of area offices--there are 80 in total--each under an area director.
The area directors oversee compliance officers--there can be as many as
16 in an office--some of whom play a supervisory role. Compliance
officers play a key role in carrying out the directive. At almost all
area offices, compliance officers take turns answering the phones, and
taking and processing complaints, a collateral responsibility in
addition to their duties in the field.
Figure 1: OSHA's 10 Regions:
[See PDF for image]
[End of figure]
Seriousness of Alleged Hazards Drives Complaint Response, although
Erroneous Information Can Affect These Determinations:
OSHA primarily responds to complaints based on the seriousness of the
alleged hazard using a priority system that the agency credits with
having improved its efficiency. However, its determinations can be
affected by inadequate or inaccurate information. OSHA officials
usually conduct an on-site inspection if an allegation is of a serious
nature. Agency policy also requires on-site inspections in cases where
a written and signed complaint from a current employee or their
authorized representative provides reasonable grounds to believe that
the employer is violating a safety or health standard. In general, OSHA
officials conduct an inquiry by phone and fax--referred to as a phone/
fax investigation--for complaints of a less serious nature. Many OSHA
officials, especially compliance officers, told us this priority-driven
system has been more effective in conserving their time and resources.
Nevertheless, many of the compliance officers also said that some
inspections may occur that are not necessarily warranted because
complainants have inadequately or inaccurately characterized the nature
of the hazard. On the other hand, almost everyone with whom we spoke
said the agency prefers to err on the side of caution so as not to
overlook a potential hazard. Many of the OSHA officials we interviewed,
as well as officials from states that run their own safety and health
programs, suggested approaches to improve the validity of the
information accompanying the complaints.
OSHA Prioritizes Its Response to Complaints according to the Level of
Hazard:
According to policy, OSHA initially evaluates all incoming complaints
(whether received by fax, e-mail, phone, letter, or in person) to
decide whether to conduct an on-site inspection or a phone/fax
investigation (see fig. 2). OSHA conducts on-site inspections for
alleged serious violations or hazards and makes phone/fax inquiries for
allegations of a less serious nature. OSHA considers serious violations
or hazards to be those that allege conditions that could result in
death or serious physical harm. Specifically, OSHA initiates on-site
inspections when the alleged conditions could result in permanent
disabilities or illnesses that are chronic or irreversible, such as
amputations, blindness, or third-degree burns. As seen in figure 2,
though, OSHA will also go on-site when a current employee or his
representative provides a written and signed complaint that provides
reasonable grounds for believing that a violation of a specific safety
and health standard exists. While immediate risks to any employee's
health or safety are the primary factors driving OSHA's complaint
inspections, additional criteria can also prompt an on-site inspection.
For example, if an employer fails to provide an adequate response to a
phone/fax investigation, OSHA's policy is to follow up with an on-site
inspection.[Footnote 6]
Figure 2: Summary of OSHA's Complaint Protocol:
[See PDF for image]
[A] Complaints are received by phone, fax, e-mail, in person or in
writing.
[B] In addition, OSHA considers the criteria for an on-site inspection
that are established in the Complaint Policies and Procedures
Directive, CPL 2.115.
[End of figure]
Area office supervisors or compliance officers may call the
complainant, if needed, to help understand the nature of the hazard.
OSHA officials told us they might ask complainants to estimate the
extent of exposure to the hazard and report how long the hazard has
existed. If an area office supervisor decides that an on-site
inspection will be conducted, OSHA's policy is to limit the inspection
to the specific complaint. A violation or another hazard that is in
clear sight may be considered, but compliance officers cannot expand
the scope of their inspection to look for other violations--a
specification that underscores the importance of the complaint's
accuracy.
Phone/fax investigations, meanwhile, afford an opportunity to resolve a
complaint without requiring a compliance officer to visit the worksite.
Instead, the compliance officer contacts the employer by telephone and
notifies him or her of the complaint and each allegation. The employer
is also advised that he or she must investigate each allegation to
determine whether the complaint is valid. The employer can resolve the
complaint, without penalty, by providing OSHA with documentation such
as invoices, sampling results, photos, or videotape to show that the
hazard has been abated. Upon receiving documentation from the employer,
the area office supervisor is required to review it and determine
whether the response from the employer is adequate.
For both on-site inspections and phone/fax investigations, OSHA's
policy is to keep the complainants informed of events by notifying them
by letter that an on-site inspection has been scheduled, the outcome of
either the inspection or the phone/fax investigation, and the
employer's response. In the case of a phone/fax investigation, the
complainant has the right to dispute the employer's response and
request an on-site inspection if the hazard still exists. OSHA can also
determine that the employer's response is inadequate and follow with an
on-site inspection.
Officials Credited the Option of Phone/Fax Investigations with
Improving Efficiency:
Of the 15 officials who told us they worked for OSHA prior to 1996, and
whom we asked about past practices, nearly half said the agency's
current complaint policy has allowed them to better conserve their
resources. For example, one 26-year veteran said phone/fax
investigations have relieved his compliance officers of traveling to
every complaint site for inspections that once averaged as many as 400
per year. Because the employer investigates the allegation first, the
phone/fax inquiry is an efficient use of time, according to this
supervisor. Of the 20 compliance officers that we asked about this
topic, 18 said phone/fax investigations took less time to conduct than
on-site inspections. Nearly one-half of these compliance officers told
us the phone/fax investigation procedures reduced travel time or
eliminated time spent writing inspection reports. The agency handled
about two-thirds of all complaints it received in fiscal years 2000
through 2002 through phone/fax investigations.
Several OSHA officials we interviewed said OSHA's phone/fax
investigation procedures ease the burden on employers because the
employers have an opportunity to resolve the problem. As a result,
these officials told us that their interaction with employers has
improved. While few of the employers we interviewed had the complaints
against them resolved through phone/fax investigations, the three that
did expressed satisfaction with the way the allegation was handled.
These employers reported that responding to phone/fax investigations
required 3 hours, 5 hours, and 2 to 3 days respectively. Only the
employer reporting the greatest amount of time believed that the time
he invested was inappropriate given the nature of the alleged hazard.
A 1995 internal OSHA report, which reviewed the new complaint
procedures implemented in two area offices as part of a pilot project,
also credited phone/fax investigations with improving efficiency,
specifically by reducing the time it took to notify employers of
alleged hazards and to correct them, as well as with reducing the
offices' complaint backlog. The report found that using phone/fax
investigations reduced notification time by at least a week, reduced
the average number of days to correct hazards by almost a month in the
two offices, and eliminated one office's backlog and reduced the
other's backlog by almost half during its involvement in the pilot
project. The report attributed these gains to compliance officers being
able to phone and fax employers to inform them of the allegations
instead of relying on mail, promptly contacting employers to clarify
allegations and to offer feasible methods for correcting hazardous
conditions, and more employees choosing to have their complaints
resolved with phone/fax investigations.
Erroneous Information Can Affect OSHA Hazard Assessments:
More than half of the 20 nonsupervisory compliance officers we
interviewed told us that complainants' limited knowledge of workplace
hazards and their reasons for filing complaints can affect the quality
of the information they provide, which, in turn, can affect OSHA's
determination of the hazard's severity. They said complainants
generally have a limited knowledge of OSHA's health and safety
standards or may not completely understand what constitutes a
violation; consequently, they file complaints without knowing whether a
violation exists. As a result, the level of hazard can be overstated.
For example, one nonsupervisory compliance officer said he received a
complaint that alleged a construction company was violating the
standards for protecting workers from a potential fall, but found upon
arriving at the site that the scaffolding in question was well within
OSHA's safety standard. Over half of the nonsupervisory compliance
officers (13 of 20) said that there were "some or great" differences
between what complainants allege and what is ultimately found during
inspections or investigations, because complainants may not completely
understand what constitutes an OSHA violation or they have a limited
knowledge of OSHA's standards.
Complainants' limited knowledge of OSHA's health and safety standards
can also result in compliance officers not knowing which potential
hazards to look for when conducting on-site inspections. For example,
one compliance officer noted that employees might complain about an
insufficient number of toilets but not about machinery on the premises
that could potentially cause serious injury. In addition, another
compliance officer noted that many times complainants' descriptions of
hazards are too vague, a circumstance that prevents her from locating
the equipment that was alleged in the complaint, such as a drill press,
and OSHA's rules preclude her from expanding the scope of the
inspection in order to locate the hazard.
The quality of the information complainants provide to OSHA can also be
influenced by their motives for filing a complaint. For example, half
(27 of 52) of the area office directors and compliance officers we
interviewed said they have received complaints from employees who filed
them as retribution because they were recently terminated from their
jobs or were angry with their employers. Although this practice was
described as infrequent, OSHA officials said that in some instances
complainants intentionally exaggerated the seriousness of the hazard or
reported they were current employees when in fact they had been fired
from their jobs. One official asserted that disgruntled ex-employees
have taken advantage of OSHA's complaint process to harass employers by
having OSHA conduct an on-site inspection. Several of the employers we
interviewed (4 of the 15) also claimed that disgruntled employees have
used the complaint process to harass them. They expressed the view that
OSHA should improve its procedures for evaluating the validity of
complaints.
Some of the compliance officers we interviewed said it is not unusual
to experience an increase in the number of complaints during contract
negotiations. One official told us that in a region where he once
worked, union workers filed multiple complaints in order to gain
leverage over the employer. A union official acknowledged that this
occurred but noted that it was infrequent. Other OSHA officials told us
that competitors of companies sometimes file complaints when they lose
a competitive bid for a work contract. One official said that while
company representatives do file complaints against each other to
disrupt the other company's work schedule, such tactics are not typical
in his region.
Despite these problems, several of the OSHA officials we interviewed
said OSHA's obligation is to evaluate whether there are reasonable
grounds to believe that a violation or hazard exists, rather than
trying to determine a complainant's motives for filing the complaint.
In fact, 34 of the 52 officials we interviewed told us that almost all
of the complaints they see warrant an inspection or an investigation,
and as a result, many of the area offices inspect or investigate most
of the complaints that are filed. One official said he would prefer to
conduct an inspection or do a phone/fax investigation for an alleged
hazard, rather than not address the complaint and have it result in a
fatality.
State and Federal OSHA Officials Suggested a Number of Ways to Elicit
Better Information from Complainants:
When asked during interviews about ways OSHA could improve its process
for handling complaints, officials from OSHA and from states that run
their own health and safety programs suggested approaches the agency
could take to improve the information they receive from complainants.
Although some offices were actively engaging in these practices, others
reported that they were being used only to some or little extent.
Their recommendations were of three types; the first was in regard to
strategies for improving the validity of complaints that OSHA
considers. Many OSHA area directors and compliance officers said the
agency could warn complainants more explicitly of penalties for
providing false information, which could be as much as $10,000 or
imprisonment for as long as 6 months, or both.[Footnote 7] This warning
is printed as part of the instructions on the complaint form available
on OSHA's Web site. However, OSHA's complaint policies and procedures
directive states that area offices will not mail the form to
complainants; consequently, complainants primarily receive the penalty
warning only if they access the Web-based form.[Footnote 8] In
contrast, an official from one of the state programs reported that his
state's program requires complainants to sign a form with penalty
information printed in bold above the signature line. According to the
state official, this policy has reduced by half the number of invalid
complaints.
Several OSHA supervisors and directors expressed reservations about
having compliance officers make verbal warnings to complainants about
providing false information while taking their complaints, saying it
could prevent some complainants who are already fearful from reporting
hazards. Of the 52 OSHA officials we interviewed, 23 said the extent to
which they remind complainants of the penalty for providing false
information is "little or none at all." Furthermore, several officials
said complainants report hazards based on a perceived violation;
therefore, they doubted a hazard that turned out to be invalid would
result in a penalty.
To further improve the validity of complaints, one official pointed to
his state's practice of generally conducting on-site inspections only
for a current employee or an employee's representative. According to
the state health and safety official, this policy improves the validity
of information because current employees can more accurately describe
the hazard than an ex-employee who has been removed from the
environment for some time and whose relationship with the employer may
be strained. Another state's health and safety official said her state
has a policy that allows its managers to decline any complaint they
determine is intended to willfully harass an employer, which also helps
improve the reliability of complaints. According to this official,
however, managers seldom find that a complaint was filed to willfully
harass an employer. The state also has a policy that allows managers to
dismiss any complaint they determine is without any reasonable basis.
A second approach suggested by many OSHA officials was to improve
complainants' ability to describe hazards accurately. Of the 52
officials that we interviewed, 14 said OSHA could, for example, conduct
more outreach to educate both employees and employers about OSHA's
health and safety standards. Although OSHA area offices already
participate in outreach activities, such as conducting speeches at
conferences or making presentations at worksites, several of the
officials we interviewed said the agency could do more. For example,
one compliance officer suggested developing public service
announcements to describe potential hazards, such as trenches without
escape ladders, and to provide local OSHA contact information for
reporting such hazards. One official expressed the opinion that if OSHA
were to conduct more outreach to employees, the quality of complaints
would likely improve. Another compliance officer suggested that OSHA
engage in more preconstruction meetings with employers to discuss
OSHA's regulations and requirements and share ideas for providing safer
working environments. One interviewee said if employers were more
knowledgeable about hazards, there would be less need for workers to
file complaints.
Finally, OSHA officials said the agency could take steps to improve the
ability of employers and employees to resolve complaints among
themselves before going to OSHA. Many of the officials that we
interviewed said their offices could encourage employers to form safety
committees or other internal mechanisms to address safety concerns. Ten
of the 52 officials we interviewed told us the extent to which their
offices promote or encourage safety committees was "little to none at
all." Only some of these officials said that this lack of promotion
stemmed from the requirements of the National Labor Relations Act
(NLRA), which some believe may prohibit or hinder the establishment of
safety committees.[Footnote 9]
Although Consistent Handling of Complaints Is a Key OSHA Principle,
Practices in Some Area Offices Varied:
OSHA's policy for responding to complaints requires compliance officers
to address complaints in a systematic and timely manner; however, we
found practices used by area offices to respond to complaints varied
considerably. While some of these practices involved departures from
OSHA policy, others were practices that varied to such a degree that
they could result in inconsistent treatment of complainants and
employers. In particular, we found several instances where area offices
departed from the directive by persuading complainants to choose either
an on-site inspection or a phone/fax investigation, and by having
nonsupervisory compliance officers evaluate complaints. We also found
several instances where practices were inconsistent. Among the 42
offices we contacted, we found that some conducted follow-up
inspections on a sample of closed investigation cases to verify
employer compliance, and others did not. Since issuing its new
directive for handling complaints in 1996, however, OSHA has issued no
guidance to reinforce, clarify, or update those procedures. In
addition, while OSHA requires its regional administrators to annually
audit their area office operations, some administrators do not, and
further, for those who do, OSHA does not have a mechanism in place to
review the results and address problems on an agencywide level.
Some Practices and Procedures Departed from Agency Policies:
In our interviews with 52 randomly selected supervisory and
nonsupervisory officials in 42 of the 80 area offices, we found
practices that appeared to depart from OSHA's official policies. In
particular, agency policy calls for supervisors to evaluate each
complaint. However, 22 of the 52 officials to whom we talked said
nonsupervisory compliance officers in their offices are sometimes the
decision makers for whether complaints are inspected or pursued through
phone/fax investigations. In some of these offices, compliance officers
make the decision if the complaint is less than serious. In addition,
some officials told us that if the case was earmarked for an inspection
or was challenging, the supervisor would then review it. While OSHA's
directive addresses supervisory review within the context of
inspections, an OSHA national director informed us that it is agency
policy to have supervisors review each and every complaint. In
addition, agency policy prescribes that compliance officers explain to
complainants the relative advantages of both phone/fax investigations
and inspections, if appropriate. However, 16 of the 52 officials to
whom we spoke said they encourage complainants, in certain
circumstances, to seek either an inspection or an investigation. For
example, one official said that his office "sells" phone/fax
investigations because they are faster to conduct and lead to quicker
abatement than on-site inspections. However, an OSHA national director
stressed to us that duty officers should not attempt to persuade
complainants. Another practice that appeared inconsistent with policy
was the treatment of written, signed complaints. Current employees and
their representatives have the right to request an inspection by
writing and signing a complaint, but before an inspection may take
place, OSHA must determine that there are reasonable grounds for
believing there is a violation of a safety or health standard or real
danger exists. Area office supervisors are to exercise professional
judgment in making this determination. Of the 52 officials with whom we
spoke 33 said their offices exercise professional judgment by
evaluating written and signed complaints. However, most of the
remainder were about equally split in reporting that they evaluate
these complaints "sometimes" (7 of 52) or forgo evaluation altogether
and automatically conduct on-site inspections (8 of 52).
Finally, while we found that complaint policy was generally followed at
the three OSHA offices where we reviewed case files, we did find that
one office had not been sending a letter to complainants to notify them
of a scheduled inspection. According to the OSHA directive,
complainants should be notified of inspections.
Some Practices Varied Significantly among Area Offices:
During telephone interviews, officials described practices that, while
they did not depart from agency policy, varied significantly from
office to office. For example, offices differed in whether they treated
e-mails as phone calls or as written and signed complaints. Of the 52
officials with whom we spoke, 12 said they treated complaints received
via e-mail as written and signed complaints, while 34 said they treated
them as phone complaints. While agency policy is silent on how to
classify e-mail complaints, this inconsistency is important because
written and signed complaints are more likely to result in on-site
inspections. Offices also differed in whether or not they performed
random follow-up inspections for phone/fax investigations. While 10 of
the 52 officials said they did not know if their offices conducted
follow-up inspections, most of the remainder were about equally split
in reporting that either they did (18 of 52) or did not (20 of 52) do
them. Although the directive does not require follow-up inspections,
the OSHA letters sent to employers says they may be randomly selected
for such inspections. This inconsistency in practice across offices is
significant insofar as follow-up inspections can be seen either as an
added burden to employers or as an important safeguard for ensuring
abatement. We also found variation in how offices determined whether a
complainant was a current employee. The employment status of a
complainant is important, as it is often a factor in evaluating the
complaint. Of the 52 OSHA officials with whom we spoke, 30 said their
offices determine whether a complainant is a current employee simply by
asking the complainant; 11 said they asked probing questions of the
complainant, and 5 said they asked the complainant for some type of
documentation, such as a pay stub. While the directive does not specify
how compliance officers are to verify employment status, the methods
used to obtain this information can affect its accuracy.
Finally, we found that some area offices differ significantly in how
they respond to complaints for which OSHA has no standard, specifically
those involving substance abuse in the workplace.[Footnote 10] For
example, during a site visit to one area office, an official explained
that his office would not do a phone/fax investigation in response to
complaints alleging drug use at a workplace, but would refer them to
the police instead. However, another area office conducted a phone/fax
investigation for a complaint about workers drinking alcoholic
beverages while operating forklifts and mechanical equipment. An
official in a third area office told us that his office has sometimes
referred complaints about drug use at a workplace to the local police
and at other times has responded to similar complaints with a phone/fax
investigation. An OSHA national director told us that area offices are
obligated to do phone/fax investigations for alleged drug use in the
workplace.
Some Regional Administrators Meet OSHA's Requirement to Annually Audit
Area Office Operations, but OSHA Does Not Utilize Results:
OSHA policy requires that regional administrators annually audit their
area offices and that audit results be passed on to the Assistant
Secretary. However, this is not current practice. Regional
administrators are required to focus the audits on programs, policies,
and practices that have been identified as vulnerabilities, including
the agency's complaint-processing procedures. However, according to
OSHA's regional administrators, only 5 of the agency's 10 regions
conduct these audits annually, while 3 conduct the audits, but only for
a proportion of their area offices each year, and 2 do not conduct the
annual audits at all. In addition, according to one national director,
all of the regional administrators are to submit the results of their
audits to a Program Analyst in the Atlanta area office for review. The
results of this review are to be reported to the Deputy Assistant
Secretary for Enforcement, as well as to the responsible directorate,
and they are responsible for addressing issues of noncompliance and
determining what, if any, policy changes are needed. However, the
Program Analyst in Atlanta said he does not receive all of the audits
from each region as required, and an official from one of OSHA's
directorates told us his office does not receive such reports.
The findings from the seven audits we reviewed underscore their value
for monitoring consistency. These audits showed that most of the
audited offices were (1) not correctly following procedures for meeting
the time frames for initiating on-site inspections, (2) closing phone/
fax investigation cases without obtaining adequate evidence that
hazards had been corrected, and (3) not including all required
documentation from the case files.
Complaints Have, to Some Extent, Drawn OSHA to Serious Hazards at
Worksites:
To some extent, complaints have drawn OSHA compliance officers to sites
with serious hazards. According to OSHA's data for fiscal years 2000
and 2001, compliance officers found serious violations at half the
worksites inspected in response to complaints, a figure comparable to
inspections conducted at worksites targeted for their high injury and
illness rates. However, in one of our earlier reports, we expressed
concern that for targeted inspections a 50 percent success rate may
raise questions about whether inspection resources are being directed
at sites with no serious hazards.[Footnote 11] Complaint-driven
inspections shared other similarities with planned inspections;
specifically, compliance officers cited similar standards during both
types of inspections. On the other hand, complaint inspections often
required more time to complete. Finally, we found a correlation between
hazardous industries and complaints inspections. Specifically, those
industries that, according to BLS data, had more injuries and illnesses
also generally had a larger number of complaint inspections according
to OSHA data.
From Fiscal Year 2000 to 2001, Half the Worksites Inspected for
Complaints Had Serious Violations:
OSHA compliance officers found serious violations in half of the
worksites they inspected when responding to complaints alleging serious
hazards according to OSHA's data for fiscal years 2000 and 2001
combined. These are hazards that pose a substantial probability of
injury or death. During some planned inspections--those conducted at
worksites targeted for their high injury and illness rates--OSHA
compliance officers found serious violations, such as those involving
respiratory protection and control of hazardous energy, in a similar
percentage of worksites. Specifically, as shown in table 1, OSHA
compliance officers found serious violations in 50 percent of the
17,478 worksites they inspected during complaint-driven inspections.
Likewise, they found serious violations in 46 percent of the 41,932
worksites they targeted during planned inspections. In a previous
report we noted that this percentage might indicate that inspection
resources are being directed to worksites without serious hazards.
According to OSHA, many complaints come from the construction industry,
where the work is often dangerous and of a short duration. As a result,
even if an inspection begins immediately, "citable" circumstances may
no longer exist, a fact that according to the agency, might explain why
the number of serious violations that result from complaints is not
higher.
Table 1: Number and Percentage of Inspected Worksites with Serious
Violations, by Type, Fiscal Years 2000 and 2001:
Inspection type: Complaints;
Number of inspections with serious violations: 8,699;
Number of inspections[A]: 17,478;
Percentage of inspections with serious violations: 50.
Inspection type: Planned;
Number of inspections with serious violations: 19,438;
Number of inspections[A]: 41,932;
Percentage of inspections with serious violations: 46.
[End of table]
Source: GAO analysis of data from OSHA's IMIS, fiscal years 2000 and
2001.
[A] Numbers do not include other unprogrammed inspections, such as
those OSHA conducted in response to worksite fatalities.
We found that, in contrast to planned inspections, complaint-driven
inspections require, on average, more hours per case to complete. Table
2 shows that OSHA compliance officers have required about 65 percent
more time for complaint-driven inspections in comparison to planned
inspections--29.7 hours on average compared with 18.1 hours--suggesting
that while outcomes are similar, complaint-driven inspections are more
labor intensive than planned inspections. Compared with planned
inspections, complaint-driven inspections have a higher rate of health
inspections, which, according to an OSHA national director, place extra
time demands on compliance officers to obtain samples, test them, and
document the results. In comparison with inspections, phone/fax
investigations require, on average, far less time than either
complaint-driven or planned inspections.
Table 2: National Average for Hours per Inspection, by Type of
Inspection or Investigation, Fiscal Years 2000 to 2002:
Response to complaint: All complaint-driven inspections[A];
National average in hours: 29.7.
Response to complaint: Phone/fax investigation only;
National average in hours: 1.4.
Response to complaint: Planned inspection;
National average in hours: 18.1.
[End of table]
Source: GAO analysis of data from OSHA's IMIS, fiscal years 2000
through 2002.
[A] These exclude other unprogrammed inspections, such as those OSHA
conducted in response to worksite fatalities.
In terms of the types of hazards they uncover, complaint-driven
inspections shared some similarities with planned inspections that
target the most hazardous sites. Of the 10 standards OSHA compliance
officers cited most frequently for violations during complaint-driven
inspections, 7 were also among the 10 most frequently cited during
planned inspections. Table 3 shows the rank ordering of hazards cited
most frequently during planned inspections and complaint-driven
inspections. However, table 3 also shows that there were some
differences in the frequency with which compliance officers cited
particular hazards during planned inspections, compared with complaint-
driven inspections. For example, the standard most frequently cited
during planned inspections, general requirements for scaffolds, is the
18th most frequently cited standard during complaint-driven
inspections. Likewise, the standard cited with the second highest
frequency in planned inspections, "fall protection," is not within the
10 standards most frequently cited for complaint-driven inspections.
Such examples indicate that some differences exist in the type of
hazards compliance officers found at worksites about which workers
have complained and at those OSHA targeted for inspection.
Table 3: Most Frequently Cited OSHA Standards for Complaint-Driven and
Planned Inspections, Fiscal Years 2000 to 2002:
OSHA standard: General requirements for scaffolds;
Planned inspections: Rank: 1;
Complaint inspections: Rank: 18.
OSHA standard: Fall protection;
Planned inspections: Rank: 2;
Complaint inspections: Rank: 25.
OSHA standard: Hazard communication;
Planned inspections: Rank: 3;
Complaint inspections: Rank: 1.
OSHA standard: Control of hazardous energy;
Planned inspections: Rank: 4;
Complaint inspections: Rank: 3.
OSHA standard: Wiring methods, components, and equipment for general
use;
Planned inspections: Rank: 5;
Complaint inspections: Rank: 4.
OSHA standard: Respiratory protection;
Planned inspections: Rank: 6;
Complaint inspections: Rank: 2.
OSHA standard: General requirements, for all machines;
Planned inspections: Rank: 7;
Complaint inspections: Rank: 7.
OSHA standard: Electrical, general requirements;
Planned inspections: Rank: 8;
Complaint inspections: Rank: 8.
OSHA standard: Mechanical power transmission apparatus;
Planned inspections: Rank: 9;
Complaint inspections: Rank: 11.
OSHA standard: Bloodborne pathogens;
Planned inspections: Rank: 10;
Complaint inspections: Rank: 10.
OSHA standard: Powered industrial trucks;
Planned inspections: Rank: 17;
Complaint inspections: Rank: 5.
OSHA standard: Personal protective equipment, general requirements;
Planned inspections: Rank: 26;
Complaint inspections: Rank: 6.
OSHA standard: Portable fire extinguishers;
Planned inspections: Rank: 31;
Complaint inspections: Rank: 9.
Source: GAO's analysis of IMIS data, fiscal years 2000 through 2002.
[End of table]
Hazardous Industries Had a Preponderance of Complaints in Calendar
Year 2001:
Our analysis found a correlation between injuries and illnesses
reported in industries and the rate at which complaints were inspected.
As shown in figure 3, industries associated with higher rates of
injuries and illnesses also tended to have a higher rate of complaint
inspections than did industries with lower injury and illness rates,
according to OSHA's data.
Figure 3: Correlation between an Industry's Injury and Illness Rate
and Its Complaint Inspection Rate, Calendar Year 2001:
[See PDF for image]
Note: To correct for factors that could influence the relationship
between complaint inspections and injuries and illness, we used rates
instead of numbers.
[End of figure]
For example, one industry, transportation equipment, had 12.6 injuries
and illnesses per 100 full-time workers in 2001 and had a relatively
high rate of complaint inspections, .016 per 100 full-time workers.
Conversely, the motion picture industry, which had only 2.5 injuries
and illnesses per 100 full-time workers in 2001, had a relatively low
incidence rate for complaint inspections, .0015 complaint inspections
per 100 full-time workers.
For a handful of industries the pattern of high injury and illness
rates associated with high complaint inspection rates did not apply.
For these industries, the number of complaint inspections per 100 full-
time workers was either far higher or far lower than might have been
expected given the number of injuries and illnesses per 100 full-time
workers. For example, the air transport industry had the highest injury
and illness rate for 2001, but its complaint inspection rate was lower
than those for all but 1 of the 10 industries with the highest injury
and illness rates. In another example, while the general building
contractors industry had the highest complaint inspection rate of any
industry, over a third of all industries had higher injury and illness
rates. Table 4 shows industries that were highest or lowest in terms
of injuries and illness and their corresponding rates of complaint
inspections.
Table 4: Ten Industries with Highest Rates and Ten Industries with
Lowest Rates of Injuries and Illnesses and Corresponding Rate of
Complaint Inspections, Calendar Year 2001:
Industries with highest injury/illness rates:
Transportation by air[A];
Injuries and illnesses per 100 full-time workers: 13.3;
Complaint inspections per 100 full-time workers: 0.0073.
Transportation equipment[A];
Injuries and illnesses per 100 full-time workers: 12.6;
Complaint inspections per 100 full-time workers: 0.0160.
Fabricated metal products;
Injuries and illnesses per 100 full-time workers: 11.1;
Complaint inspections per 100 full-time workers: 0.0383.
Furniture and fixtures;
Injuries and illnesses per 100 full-time workers: 11.0;
Complaint inspections per 100 full-time workers: 0.0210.
Food and kindred products;
Injuries and illnesses per 100 full-time workers: 10.9;
Complaint inspections per 100 full-time workers: 0.0157.
Primary metal industries;
Injuries and illnesses per 100 full-time workers: 10.7;
Complaint inspections per 100 full-time workers: 0.0283.
Lumber and wood products;
Injuries and illnesses per 100 full-time workers: 10.6;
Complaint inspections per 100 full-time workers: 0.0262.
Stone, clay, and glass products;
Injuries and illnesses per 100 full- time workers: 10.1;
Complaint inspections per 100 full-time workers: 0.0280.
Local and interurban passenger transit;
Injuries and illnesses per 100 full-time workers: 9.8;
Complaint inspections per 100 full-time workers: 0.0110.
Agricultural production-livestock;
Injuries and illnesses per 100 full- time workers: 9.2;
Complaint inspections per 100 full-time workers: 0.0061.
Industries with lowest injury/illness rates:
Business services;
Injuries and illnesses per 100 full-time workers: 2.7;
Complaint inspections per 100 full-time workers: 0.0038.
Motion pictures;
Injuries and illnesses per 100 full-time workers: 2.5;
Complaint inspections per 100 full-time workers: 0.0015.
Insurance carriers;
Injuries and illnesses per 100 full-time workers: 1.7;
Complaint inspections per 100 full-time workers: 0.0006.
Engineering and management services;
Injuries and illnesses per 100 full-time workers: 1.6;
Complaint inspections per 100 full-time workers: 0.0017.
Depository institutions;
Injuries and illnesses per 100 full-time workers: 1.4;
Complaint inspections per 100 full-time workers: 0.0007.
Holding and other investment offices;
Injuries and illnesses per 100 full-time workers: 1.4;
Complaint inspections per 100 full-time workers: 0.0004.
Nondepository institutions;
Injuries and illnesses per 100 full-time workers: 1.0;
Complaint inspections per 100 full-time workers: 0.0006.
Insurance agents, brokers, and service;
Injuries and illnesses per 100 full-time workers: 0.8;
Complaint inspections per 100 full-time workers: 0.0011.
Legal services;
Injuries and illnesses per 100 full-time workers: 0.8;
Complaint inspections per 100 full-time workers: 0.0005.
Security and commodity brokers;
Injuries and illnesses per 100 full- time workers: 0.5;
Complaint inspections per 100 full-time workers: 0.0006.
Source: GAO analysis of BLS and OSHA's IMIS data for 2001.
[A] OSHA stated that it does not pursue many of the complaints in
these areas because its jurisdiction is limited.
[End of table]
Conclusion:
Since 1975, OSHA has had to balance two competing demands: the need to
use its inspection resources efficiently and the need to respond to
complaints about alleged hazards that could seriously threaten workers'
safety and health. In light of this ongoing challenge, OSHA has adopted
complaint procedures that, according to agency officials, have helped
OSHA conserve its resources and promptly inspect complaints about
serious hazards. Nonetheless, in deciding which complaints to inspect,
OSHA officials must depend on information provided by complainants
whose motives and knowledge of hazards vary. Many OSHA officials do not
see the quality of this information as a serious problem. However,
considering that serious violations were found in only half of the
workplaces OSHA officials inspected when responding to complaints, it
seems likely that the agency, employers, and workers could all be
better served if OSHA improved the quality of information it receives
from complainants.
When OSHA conducts inspections of complaints based on incomplete or
erroneous information, it potentially depletes inspection resources
that could have been used to inspect or investigate other worksites. In
addition, employers may be forced to expend resources proving that
their worksites are safe when no hazard exists. OSHA should certainly
not discourage workers from making complaints or pursuing a request for
an OSHA inspection. Indeed, the correlation we found between those
industries designated as hazardous and those that generate complaints
inspections suggests that using complaints to locate hazardous
worksites is a reasonable strategy for the agency to pursue. However,
to the extent that OSHA officials could glean more accurate information
from complainants, such as by deterring disgruntled employees from
misrepresenting hazards or their employment status, the agency could
benefit in several ways. With better information, OSHA could better
conserve its inspection resources, minimize the burden on employers,
and further enhance the agency's credibility in the eyes of employers.
In addition, if the strategies described by OSHA officials as effective
means to improve the quality of complaints are not being fully
utilized, OSHA may miss opportunities to maximize the efficiency its
complaint process might afford.
Some variation in how OSHA officials respond to complaints is
inevitable, particularly considering that there are 80 area offices
with as many as 16 compliance officers in each office. Nevertheless,
the inconsistencies that we found have ramifications when considering
the size of the agency and the judgment that comes into play when
handling complaints. Moreover, OSHA has much to gain by upholding a
reputation for fairness among employers. When employers buy into OSHA's
standards and comply voluntarily, the agency can better use its 1,200
compliance officers to ensure worker safety at the more than 7 million
worksites nationwide. However, OSHA's credibility could be damaged by
procedural inconsistencies if, for example, they resulted in different
treatment and disposition of similar complaints. While OSHA requires
regional audits for monitoring consistency, the failure to maximize the
value of this information limits the agency's ability to ensure one of
the underlying principles of its complaint policy.
Recommendations for Executive Action:
We are making recommendations that the Secretary of Labor direct the
Assistant Secretary for Occupational Safety and Health to instruct area
offices to pursue practices to improve the quality of information they
receive from complainants, such as:
* reminding complainants of the penalties for providing false
information,
* conducting outreach to employees regarding hazards, and:
* encouraging employers to have safety committees that could initially
address complaints.
We are also recommending that the Secretary direct the Assistant
Secretary for Occupational Safety and Health to take steps to ensure
that area offices are consistently implementing the agency's policies
and procedures for handling complaints. As a first step, the agency
should update and revise the 1996 directive.
In revising the directive, the agency should update and clarify:
* who evaluates complaints,
* how complainants are advised of the process,
* how written and signed complaints are evaluated,
* how to verify the employment status of complainants,
* how to treat e-mail complaints, and:
* how to address complaints involving hazards for which the agency has
no specific standard.
In addition, we are recommending that the Secretary direct the
Assistant Secretary for Occupational Safety and Health to:
* develop a system for ensuring the regions complete audits and:
* develop a system for using the audit results to improve consistency
of the complaint process.
Agency Comments:
We received comments on a draft of this report from Labor. These
comments are reproduced in appendix II. Labor also provided technical
clarifications, which we incorporated where appropriate.
Although Labor recognized in its comments that most complaints are
anonymous and unsigned--a fact that makes it difficult to find
employees to obtain their views about the complaint process--the agency
recommended that we acknowledge in the report the limited number of
employees we interviewed. At the beginning of the report and again at
the end, we acknowledged that we interviewed 6 employees. Further,
Labor questioned whether the number of employees we interviewed was an
adequate number on which to base the conclusions reached in this
report. Our conclusions about OSHA's complaint process were not based
solely on employee interviews but were based on a variety of data,
including interviews with 52 OSHA officials. In determining which OSHA
officials to interview, we deliberately included area directors,
assistant area directors, and compliance officers, which resulted in us
obtaining information from officials at various levels in 42 of OSHA's
80 area offices.
Labor also noted that our findings from OSHA's database which showed
that only half of complaint inspections result in citations for serious
violations do not recognize that many complaints come from the
construction industry, where the work is often dangerous and of a short
duration so that even if an inspection begins immediately, "citable"
circumstances may no longer exist. We added language to the body of the
report to reflect this information.
In responding to our first recommendation about improving the quality
of information received through complaints, Labor stated that OSHA has
taken many steps, both in its online and office-based complaint-taking
procedures, to provide guidance to employees to ensure that all
complaints are valid and accurate. We maintain, however, that OSHA can
do more to improve the validity and accuracy of the complaints it
receives.
Labor did not comment on our recommendations that OSHA develop a system
for ensuring that the regions complete audits of the complaint process
and for using the results of these audits to improve the consistency of
the process.
We will make copies of this report available upon request. In addition,
the report will be available at no charge on GAO's Web site at http://
www.gao.gov.
If you or any of your staff has any questions about this report, please
contact me at (202) 512-7215 or Revae Moran, Assistant Director, at
(202) 512-3863.
Sincerely yours,
Signed by:
Robert E. Robertson, Director:
Education, Workforce, and Income Security Issues:
[End of section]
Appendix I: Scope and Methodology:
Our criteria for selecting our site visits were geographical diversity
and volume of complaints. We received data from the Occupational Safety
and Health Administration (OSHA) regarding the number of complaints
each of its area offices processed in 2000, 2001 and 2002. On the basis
of these data, we selected the three sites with the largest number of
complaints processed in their respective regions and which roughly
approximated the east, south and western regions. Those sites were
Pittsburgh, Pennsylvania; Austin, Texas; and Denver, Colorado. In each
of these offices, we examined a statistical sample of case files. We
used a standard set of questions, pretested on case files in the
Philadelphia, Pennsylvania office, to conduct the case file reviews. In
addition, we interviewed compliance officers--both supervisory and
nonsupervisory. We randomly selected 38 cases in Denver, 30 cases in
Austin, and 34 cases in Pittsburgh from the available list of complaint
files processed by these offices in 2000, 2001, and 2002. Austin and
Pittsburgh had disposed of their case files for phone/fax
investigations for 2000, according to area directors there, who said
this was allowed by agency rules for how long files must be kept. As a
result, our random selections for Austin and Pittsburgh were selected
from lists that did not include phone/fax investigations for 2000.
In addition to our site visits, using standard sets of questions, we
interviewed by telephone randomly selected area directors, assistant
area directors, and compliance officers in 42 area offices. We obtained
from OSHA a list of area directors, assistant area directors (who are
supervisory compliance officers), compliance officers, and regional
administrators. We randomly selected 20 of the agency's 80 area
directors and 32 of its 1,200 compliance officers (12 assistant area
directors and 20 nonsupervisory compliance officers). We also
interviewed officials in all 10 regional offices. Additionally, we
conducted telephone interviews with health and safety officials from 13
states that operate health and safety programs apart from OSHA. We
selected these 13 states, in part, based on discussions with OSHA.
In addition to OSHA officials, we also interviewed employers whose
worksites were the subject of a complaint and employees who had filed
complaints. OSHA provided us with a database of all employers who in
2000, 2001, or 2002 had worksites that were the subject of complaints
and employees who had filed complaints in the same year. From the
database we randomly selected 90 employers and 90 employees. We took
steps to make sure that employers' and employees' contact information
was kept separate from their identity and any information collected
from them during their interviews. We also obtained a guarantee of
confidentiality from the report's requester. Of the 90 employers
randomly selected, we succeeded in interviewing 15. Of the 90
employees, we succeeded in interviewing 6. Some of the employee
complaints randomly selected had been filed anonymously, so contact
information was not available. In most cases, those selected could not
be reached.
Finally, we examined data for fiscal years 2000 through 2002 related to
complaints in OSHA's Integrated Management Information System (IMIS)
and looked at data on injuries and illnesses collected and published by
the Bureau of Labor Statistics (BLS) for calendar year 2001 as they
related to complaints.[Footnote 12] In addition, for the IMIS data we
obtained and reviewed documentation of internal controls and manually
tested the data. We interviewed both OSHA and BLS officials to
establish the reliability of the data. We found the data to be reliable
for our purposes.
[End of section]
Appendix II: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Occupational Safety and Health:
MAY 21 2004
Mr. Robert E. Robertson:
Director, Education, Workforce and Income Security Issues:
United States General Accounting Office
441 G Street NW, Room 5930
Washington, DC 20548:
Dear Mr. Robertson:
Thank you for the opportunity to respond to the General Accounting
Office (GAO) report on OSHA's Complaint Response Policies: OSHA Credits
Its Complaint System with Consenting Agency Resources, but the System
Still Warrants Improvement (GAO-04-658). We are pleased that GAO
recognizes that the Agency's complaint process is effective. Throughout
its history, OSHA has striven to improve this process in order to
effectively administer these important provisions and requirements of
the Occupational Safety and Health Act of 1970 (OSH Act).
The recommendations for executive action made in your report advise the
Secretary of Labor to direct that the Director of Enforcement take
specified actions. H However, administrative procedures within the
Department dictate that the Secretary should direct her instructions to
the Assistant Secretary for Occupational Safety and Health, who in turn
will determine organizationally how these instructions should be
implemented, and we suggest the GAO's report be revised accordingly.
OSHA also takes issue with some of the methodology employed by GAO in
preparing this report. As the majority of complaints are anonymous and
unsigned, only six employees were interviewed; the Agency questions
whether this is an adequate number of employees on which to base the
conclusions reached in this report. We recommend that there be greater
acknowledgement in the report by GAO of this limited number of employee
interviews on which the report is based. (Please note that there are
two minor discrepancies in the report. On page 2, six employees are
mentioned as being interviewed and Appendix III is referenced as to
where GAO's methodology is presented. Actually, the methodology is
presented in Appendix 1, and on page 27 of that appendix eight
employees are mentioned as being interviewed.):
The Agency does believe that, in developing its conclusions, GAO did
not give adequate consideration to the particular circumstances often
present in the construction industry. A large number of the complaints
that OSHA receives allege potential
imminent danger situations, such as a trench, fall hazard from a height
greater than six feet (often far greater), or working near energized
power lines. Such work is usually of short duration, and because
worksite conditions are constantly changing, even if the inspection
begins immediately, "citable" circumstances may no longer exist. In
addition, often work is not ongoing or concludes before the inspector
can visit the worksite. In other words, GAO's conclusion that only half
of the workplaces that undergo complaint inspections result in serious
violations may not have the weight ascribed to it by the GAO report.
OSHA believes that GAO should distinguish the type of complaint
inspections that were considered-construction, general industry,
maritime or federal agency-so that better conclusions can be made.
Furthermore, Table 4 on page 22 of the report is misleading. It
concludes that two of the industries with the highest injury/ illness
rates are transportation by air and local passenger transit. OSHA has
extremely limited jurisdiction for these industries and therefore, does
not pursue many of the complaints in these areas. In addition, the
table states that it was based on OSHA's Integrated Management
Information System data; however, as IMIS does not track injury rates,
it cannot be cited as the source of these statistics.
As stated above, Section 8(f)(1) of the OSH Act provides that workers
have the right to request an inspection of a workplace if they believe
that a violation of a safety or health standard exists that threatens
physical harm, or when an imminent danger exists. As such, any action
taken by the Agency that discourages the exercise of this right could
deter employees from requesting workplace inspections and thus would
need to be considered in recognition of the fundamental right
established by the Act. The challenge is to pursue administrative
efficiency while assuring that the rights of workers, as provided by
the statue, are not eroded.
The Agency has a variety of procedures in place to screen out
unwarranted and ill-founded complaints, and OSHA's anecdotal evidence
suggests that, as a rule, the Agency is successful in identifying such
complaints. Statistics cited in the report support this fact, in that a
higher percentage of complaint-initiated inspections result in the
finding of serious violations than do programmed (i.e., targeted)
inspections. This indicates that a significant number of employee
complaints are valid in identifying serious workplace hazards that must
be corrected. However, ultimately, in any given case the Agency cannot
know if the information provided by a complainant is incomplete or
inaccurate until a compliance officer inspects the worksite.
OSHA has taken many steps, in both its online and Area-Office-based
complaint-taking procedures, to provide guidance to employees to ensure
that all complaints are valid and accurately reflect potential
workplace hazards. These steps support administrative efficiency while
assuring that the statutory rights of workers to file a complaint are
protected.
In response to your recommendation regarding safety committees, OSHA
does believe that labor-management cooperation should be encouraged.
However, OSHA does not, and should not, specify the manner in which
such cooperation takes place.
GAO also recommends OSHA conduct outreach to employees regarding
hazards. OSHA presently conducts a wide variety of outreach programs
and activities through its extensive compliance-assistance program.
Much of this outreach is specifically directed to employees and focuses
on supporting the Agency's mission of assuring safe and healthful
working conditions for working men and women by providing both
employers and employees with information useful in preventing
occupational injuries and illnesses. Workers can also access more
information on the Agency's compliance-assistance activities on our
website at:
http://www.osha.gov/dcsp/compliance assistance/ index.html:
Lastly, as stated at the opening conference, the Agency has already
initiated a revision of its Directive on Complaint Policies and
Procedures. Your recommendations will be thoroughly considered and will
be incorporated, where appropriate, in the revised directive, which
should be completed in the next fiscal year. Again, thank you for the
opportunity to respond to this report.
Sincerely,
Signed by:
John L. Henshaw:
GAO Comments:
The following are GAO comments on Labor's letter dated May 21, 2004.
We rephrased our recommendations to reflect Labor's administrative
procedures.
Our conclusions are based on site visits to 3 area offices processing
large numbers of complaints, reviews of case files in those offices,
interviews with 52 OSHA officials--area directors, assistant area
directors, and compliance officers--who represented 42 of OSHA's 80
area offices, interviews with officials in all 10 of OSHA's regional
offices, interviews with the director of the Office of Enforcement,
interviews with officials in 13 states that have their own safety and
health programs, analysis of data on complaints from OSHA's Integrated
Management Information System, analysis of BLS data on injuries and
illnesses, interviews with 15 employees whose companies were the
subject of complaints, interviews with 6 employees who filed
complaints, and the review of agency documents related to the complaint
process.
In the appendix on scope and methodology, we corrected the number of
employee interviews, changing it to 6 from 8.
We have included the agency's explanation in the final version of the
report.
We added a note to table 4 acknowledging that OSHA's jurisdiction is
limited in the transportation area and corrected the source of the data
in the table.
On the basis of our interviews with OSHA officials who said the agency
could do more to improve the quality of information received from
complainants, we continue to believe that adopting our recommendation
would help the agency better manage its inspection resources. Moreover,
we believe that the agency could take such actions without discouraging
employees from filing legitimate complaints.
[End of section]
Appendix III: Staff Acknowledgments:
Staff Acknowledgments:
Carl Barden, Sue Bernstein, Karen Brown, Amy Buck, Patrick di Battista,
Barbara Hills, Mikki Holmes, Cathy Hurley, Julian Klazkin, Jim
Lawrence, Luann Moy, Corinna Nicolaou, Sid Schwartz, and Michelle
Zapata made key contributions to this report.
[End of section]
Related GAO Products:
Workplace Safety and Health: OSHA's Voluntary Compliance Strategies
Show Promising Results, but Should Be Fully Evaluated Before They Are
Expanded. GAO-04-378 March 19, 2004.
Workplace Safety and Health: OSHA Can Strengthen Enforcement through
Improved Program Management. GAO-03-45 November 22, 2002.
Worker Protection: Labor's Efforts to Enforce Protections for Day
Laborers Could Benefit from Better Data and Guidance. GAO-02-925
September 26, 2002.
Workplace Safety and Health: OSHA Should Strengthen the Management of
Its Consultation Program. GAO-02-60 October 12, 2001.
Worker Protection: OSHA Inspections at Establishments Experiencing
Labor Unrest. HEHS-00-144 August 31, 2000.
Occupational Safety and Health: Federal Agencies Identified as
Promoting Workplace Safety and Health. HEHS-00-45R January 31, 2000.
FOOTNOTES
[1] See U.S. General Accounting Office, Workplace Safety and Health:
OSHA Can Strengthen Enforcement through Improved Program Management,
GAO-03-45 (Washington, D.C.: November 22, 2002).
[2] 29 U.S.C § 657(a).
[3] 29 U.S.C. § 657(f).
[4] Nonformal complaints classified as other than serious could also be
investigated by telephone.
[5] The reinvention was part of Vice President Gore's efforts to
streamline government and better serve customers.
[6] Other criteria that would prompt an on-site inspection are (1) the
complaint identifies an establishment or an alleged hazard that OSHA
has identified as a priority, (2) the company that is the subject of
the complaint has a history of violations, (3) an employee alleges that
he or she was discriminated against for complaining about or for
refusing to do a dangerous job, or (4) if an inspection is scheduled or
has begun at a worksite and another complaint is received that would
normally be done by phone/fax is received.
[7] 29 U.S.C. §666(g)
[8] In the absence of an OSHA complaint form, complaints can send their
complaints to OSHA as a letter sent through the mail or via e-mail, or
by phone, fax, or in person.
[9] Under the NLRA employers may not dominate committees that are
considered "labor organizations." See Electromation, Inc., 309 NLRB 990
(1992), enforced, 35 F.3d 1148 (7th Cir. 1994).
[10] Even where there is no established standard, OSHA may determine
that a hazard exists, under the Occupational Safety and Health Act's
general duty clause, and take enforcement action. The general duty
clause refers to section 5(a)(1) of the Act, which generally requires
employers to maintain workplaces that are free of recognized hazards
that can result in death or serious injuries. See 29 U.S.C. §654(a)(1).
So, for example, even though there is no standard for acceptable levels
of mold in the workplace, a citation might be issued if an inspection
determines that the presence of mold in a particular workplace
constitutes a hazard in accordance with the statutory criteria.
[11] See GAO-03-45.
[12] These data are collected for the calendar year.
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