Whistleblower Protection Program
Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency Gao ID: GAO-09-106 January 27, 2009Workers who "blow the whistle" on prohibited practices play a role in enforcing federal laws, but these workers risk reprisals from their employers. The Whistleblower Protection Program at the Department of Labor's (Labor) Occupational Safety and Health Administration (OSHA) is responsible for investigating whistleblowers' complaints. OSHA's decisions generally may be appealed to the Office of Administrative Law Judges (OALJ) and, ultimately, the Administrative Review Board (ARB). GAO examined (1) what is known about processing times for complaints and what affects these times, (2) what outcomes resulted, and (3) what challenges OSHA faces in administering the program. To answer these questions, GAO analyzed electronic data files from OSHA, OALJ, and ARB; visited five OSHA regional offices; reviewed case files; conducted a Web-based survey of investigators; and interviewed key officials.
Labor lacks reliable information on processing times and, as a result, cannot accurately report how long it takes to investigate and close a case or decide on certain appeals. OSHA does not have an effective mechanism to ensure that the data are accurately recorded in its database, and GAO's file reviews revealed that the key dates are often inaccurately recorded in the database or cannot be verified due to a lack of supporting documentation. For example, in one region visited, none of the case closed dates matched the documentation in case files. At the appeals level, the reliability of information on the processing times is mixed. Timeliness data at the OALJ level are reliable, and the OALJ completed appealed cases in an average of about 9 months in fiscal year 2007. In contrast, ARB data are unreliable, and the agency lacks sufficient oversight of data quality. GAO's file review found that ARB processing times ranged from 30 days to over 5 years. At all levels of the whistleblower program, GAO found that increasing caseloads, case complexity, and accommodating requests from the parties' legal counsel affect case processing times. Whistleblowers received a favorable outcome in a minority of cases that were closed in fiscal year 2007, both at initial decision and on appeal, but the actual proportion may be somewhat lower than Labor's data show. OSHA's data show that whistleblowers received a favorable outcome in 21 percent of complaints--nearly all settled through a separate agreement involving the whistleblower and the employer, rather than through a decision rendered by OSHA. However, GAO found several problems in the way settlements were being recorded in OSHA's database, and a review of settlement agreements suggests that the proportion of cases found to have merit may actually be about 19 percent. As with investigations, when whistleblower complaints were appealed, decisions favored the whistleblower in a minority of the cases--one-third or less of outcomes favored the whistleblower. With respect to administering the whistleblower program, OSHA faces two key challenges--it lacks a mechanism to adequately ensure the quality and consistency of investigations, and many investigators said they lack certain resources they need to do their jobs, including equipment, training, and legal assistance. OSHA does not routinely conduct independent audits of the program to ensure consistent application of its policies and procedures. OSHA's new field audit program has begun to address this need but is lacking in several key areas. For example, the current audit processes do not adequately provide for independence, an important aspect of an effective audit program. Moreover, OSHA is challenged to ensure that investigators in all regions have the resources they need to address their large and complex caseloads. OSHA has not established minimum equipment standards for its investigators, and nearly half of the whistleblower investigators reported that the equipment they have does not meet the needs of their jobs. Furthermore, investigators often cite the need for more training and legal assistance on the complex federal statutes that OSHA administers.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-09-106, Whistleblower Protection Program: Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency
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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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