Whistleblower Protection
Sustained Management Attention Needed to Address Long-standing Program Weaknesses Gao ID: GAO-10-722 August 17, 2010Workers who "blow the whistle" on prohibited or unlawful practices that they discover during their employment can play an important role in the enforcement of federal laws. However, these whistleblowers may also risk reprisals from their employers, sometimes being demoted, reassigned, or fired. Federal laws establish whistleblower protection processes, whereby workers who believe that 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 (Labor) Occupational Safety and Health Administration (OSHA) is responsible for receiving and investigating most whistleblower complaints filed by nonfederal workers.
We found that OSHA has done little to ensure that investigators have the necessary training and equipment to do their jobs, and that it lacks sufficient internal controls to ensure that the whistleblower program operates as intended. More specifically, we found the following: (1) OSHA enhanced its whistleblower training, establishing two mandatory 2-week courses between 2007 and 2008, but has not ensured attendance or taken steps to ensure that investigators have necessary equipment to do their jobs; (2) OSHA lacks sufficient internal controls to ensure that the whistleblower program operates as intended due to several factors, including inconsistent program operations, inadequate tracking of program expenses, and insufficient performance monitoring. Program operations vary by region in significant ways, as exemplified by differing standards used to screen out complaints, and by some regions not having formally trained supervisors who approve investigation decisions. The whistleblower program's national office lacks mechanisms, such as access to accurate data and actual case files, to monitor compliance with policies and procedures. We provided a draft of this report to OSHA for its review and comment. In its response, OSHA concurred with two of our recommendations and cited ongoing activities in areas covered by the other three. OSHA also expressed concern with some of our findings.
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: George A. Scott Team: Government Accountability Office: Education, Workforce, and Income Security Phone: (202) 512-5932GAO-10-722, Whistleblower Protection: Sustained Management Attention Needed to Address Long-standing Program Weaknesses
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
August 2010:
Whistleblower Protection:
Sustained Management Attention Needed to Address Long-standing Program
Weaknesses:
GAO-10-722:
Contents:
Letter:
Recommendations for Executive Action:
Agency Comments and Our Evaluation:
Appendix I: Briefing Slides and Attachments:
Appendix II: Comments from the Department of Labor:
Appendix III: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Abbreviations:
FTE: full-time equivalent:
OSH Act: Occupational Safety and Health Act of 1970:
OSHA: Occupational Safety and Health Administration:
Labor: Department of Labor:
STAA: Surface Transportation Assistance Act of 1982:
[End of section]
United States Government Accountability Office:
Washington, DC 20548:
August 17, 2010:
Congressional Requesters:
Workers who "blow the whistle" on prohibited or unlawful practices
that they discover during their employment can play an important role
in the enforcement of federal laws. However, these whistleblowers may
also risk reprisals from their employers, sometimes being demoted,
reassigned, or fired. Federal laws establish whistleblower protection
processes, whereby workers who believe that 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 (Labor) Occupational Safety and Health Administration
(OSHA) is responsible for receiving and investigating most
whistleblower complaints filed by nonfederal workers.
For over 20 years, we have reported that OSHA has focused too little
attention on the whistleblower program.[Footnote 1] Most recently, in
January 2009, we reported that OSHA has struggled to provide
investigators with the skills and resources they need to do their
jobs, and has not developed adequate internal controls to ensure that
criteria and standards for investigating complaints are consistently
followed across its regions. At that time, we recommended that OSHA
take several actions, including ensuring that investigators have
necessary equipment and enhancing its audit program to provide for
independence and accountability.
In this context, you asked us to update our review of the program and
report on OSHA's efforts to make improvements, including implementing
our recommendations. We addressed the following research questions:
(1) What steps have been taken to ensure that whistleblower
investigators have the necessary training and equipment to do their
jobs? (2) To what extent does the whistleblower program have adequate
internal controls to ensure effective and efficient investigations?
On June 15, 2010, we briefed your staff on the results of our
analysis. This report formally conveys the information provided during
this briefing (see appendix I for the briefing slides and
attachments). In summary, we found that OSHA has done little to ensure
that investigators have the necessary training and equipment to do
their jobs, and that it lacks sufficient internal controls to ensure
that the whistleblower program operates as intended. More
specifically, we found the following:
* OSHA enhanced its whistleblower training, establishing two mandatory
2-week courses between 2007 and 2008, but has not ensured attendance
or taken steps to ensure that investigators have necessary equipment
to do their jobs. Nearly all investigators have been credited with
taking the first mandatory course, but just over 60 percent has taken
or registered for the second mandatory course. Additional training on
specific, complex statutes has not been developed because of resource
constraints, according to OSHA officials. Our last review found that
many investigators lacked basic equipment, such as portable printers,
to do their jobs. OSHA officials have not implemented our prior
recommendation to establish minimum equipment and software standards,
citing resource constraints.
* OSHA lacks sufficient internal controls to ensure that the
whistleblower program operates as intended due to several factors,
including inconsistent program operations, inadequate tracking of
program expenses, and insufficient performance monitoring. Program
operations vary by region in significant ways, as exemplified by
differing standards used to screen out complaints, and by some regions
not having formally trained supervisors who approve investigation
decisions. The whistleblower program's national office lacks
mechanisms, such as access to accurate data and actual case files, to
monitor compliance with policies and procedures. Although each region
operates within a budget allocation for personnel slots (also known as
full-time equivalents or FTEs) and other expenses, they have wide
latitude in how they deploy resources across programs, in part because
they do not report whistleblower expenses separately from other
programs. Finally, OSHA has not made assessing program performance a
priority, as evidenced by the lack of program-specific goals or
measures in key performance documents.
We used several methodologies to develop our findings. To describe
OSHA's efforts to ensure that investigators have the necessary
training and equipment to do their jobs, we reviewed program guidance
and prior GAO studies, spoke with OSHA officials about training and
equipment for investigators, and analyzed OSHA training data. To
assess the reliability of the data, we spoke with program officials
about how the training records were developed and checked the data
with a variety of regional officials, who generally corroborated the
information. We found the data to be sufficiently reliable for this
report. To assess the extent to which the whistleblower program has
adequate internal controls, we reviewed OSHA audit guidance and
studies of the program as well as GAO's standards for internal
controls in the federal government,[Footnote 2] queried all OSHA
regional administrators on investigator hiring status, and analyzed
OSHA organizational charts. In addition, to help address both
objectives, we interviewed OSHA officials in its headquarters and four
regional offices at various levels of management. We selected regions
on the basis of their varying size and geography, and chose
interviewees who were knowledgeable about ongoing initiatives.
We conducted this performance audit from March 2010 to August 2010 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.
Recommendations for Executive Action:
To improve program performance and oversight, we are recommending that
the Secretary of Labor require OSHA to take several actions:
* Ensure that all investigators complete mandatory training.
* Require staff who supervise investigators to complete the mandatory
investigator training.
* Track whistleblower program expenses, including FTEs, separately
from other OSHA programs, and annually report these expenses to
Congress.
* Develop an action plan, with specific milestones, for addressing
identified internal control weaknesses. This plan should include
mechanisms for strengthening the whistleblower national office's
control over the program.
* Incorporate strategic goals specifically for the whistleblower
program into Labor's strategic plan, and develop performance measures
to track progress in achieving these goals.
Agency Comments and Our Evaluation:
We provided a draft of this report to OSHA for its review and comment.
OSHA provided written comments, which are reproduced in appendix II.
In its response, OSHA concurred with two of our recommendations and
cited ongoing activities in areas covered by the other three. OSHA
also expressed concern with some of our findings.
Regarding our recommendations that all investigators and their
supervisors complete mandatory investigator training, OSHA agreed and
said that it was taking steps to ensure that this training was
completed within the next 18 months.
On the remaining recommendations, OSHA did not agree or disagree,
noting instead its relevant ongoing activities:
* Regarding our recommendation to track whistleblower program
expenses, including FTEs, separately and report these to Congress,
OSHA commented that it currently tracks hiring and staffing in the
whistleblower program, but OSHA was silent on the recommendation to
report expenses separately to Congress. In our review, we learned that
OSHA's budget office maintains a database of OSHA personnel, but it
does not track whistleblower program expenses separately. Given the
wide latitude that regions have in deploying resources among programs,
without centralized tracking of expenses, the budget office is not
well positioned to ensure that resources intended for the
whistleblower program are being used accordingly. Having such
information is essential for effective program management and for
safeguarding resources. Reporting this information to Congress would
inform decision making about OSHA's budgetary needs.
* Regarding our recommendation that OSHA develop an action plan, with
milestones, for addressing internal control weaknesses, officials
commented that OSHA plans more study before taking action. Officials
noted that they are exploring a variety of issues, including internal
control weaknesses, through its ongoing review of the whistleblower
program. They expect this review to culminate in recommendations to
improve program delivery and consistency. Given several reviews of the
whistleblower program conducted over the past 20 years, OSHA's
management already has the information it needs to address many of its
internal control weaknesses. It is important that OSHA begin to make
progress in addressing these issues.
* Regarding our recommendation to develop strategic goals and
performance measures specifically for the whistleblower program, OSHA
commented that it is currently developing the fiscal year 2011-2016
strategic plan. Officials noted that the plan will contain an outcome
goal related to ensuring workers have voice in the workplace, and that
they will incorporate related performance measures in OSHA's operating
plan. However, it is not clear from the agency's comments what role
the whistleblower program would play in these efforts. We urge OSHA to
specifically cite the program in the final strategic plan and to
include appropriate whistleblower performance measures in its
operating plan. OSHA also provided the following comments on some of
our findings:
* In our characterization of OSHA's organizational structure for the
national office, officials noted that the whistleblower program
reports directly to the Director of Enforcement Programs. However,
documents we obtained from OSHA in follow-up confirm a structure as we
reported it. As a result, we have not modified our report to reflect
the requested change.
* On meeting investigators' equipment needs, OSHA stated in its
comments that it will be providing new computers to all field staff,
including whistleblower investigators, by the end of the first quarter
of fiscal year 2011. Purchasing new computers is a good first step,
but doing so does not go far enough in addressing some of the basic
equipment needs of investigators. We urge OSHA to establish minimum
standards for equipment and computer software and ensure that these
standards are met as soon as possible, as we recommended in our
January 2009 report.
* On transparency, OSHA disagreed with our finding that the process it
used to allocate the 25 FTEs was not transparent, citing the multistep
approach it used in arriving at the final allocation. OSHA officials
noted that the approach they used and the final allocation were
explained to all Regional Administrators after the Assistant Secretary
of Labor for OSHA made the final decision. OSHA officials have not
provided documents to support this assertion, and the documents
received from OSHA during our review support the finding that the
process was not transparent. Moreover, as we noted in our report, some
of the regional officials with whom we spoke during our review,
including Regional Administrators, did not know how the final decision
was made.
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
appropriate congressional committees, the Secretary of Labor, and
other interested parties. The report will also be available at no
charge on GAO's Web site at [hyperlink, http://www.gao.gov].
If you or your staffs have any questions about this report, please
contact me at (202) 512-7215 or scottg@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff members who made key
contributions to this report are listed in appendix III.
Signed by:
George A. Scott:
Director, Education, Workforce, and Income Security Issues:
List of Requesters:
The Honorable Tom Harkin:
Chairman:
Committee on Health, Education, Labor, and Pensions:
United States Senate:
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:
[End of section]
Appendix I: Briefing Slides and Attachments:
Whistleblower Protection:
Sustained Management Attention Needed to Address Long-standing Program
Weaknesses:
Briefing for Congressional Requesters:
June 15, 2010:
Overview:
* Introduction;
* Objectives;
* Scope and Methodology;
* Summary of Findings;
* Background;
* Findings;
* Conclusions;
* Recommendations.
Introduction:
The Whistleblower Protection Program is intended to provide nonfederal
workers with protection from retaliatory action when they identify
prohibited practices at their employers' businesses.
For over 20 years, we have reported that OSHA focused too little
attention on the program.[Footnote 3] Most recently, we reported that
OSHA:
* Has struggled to provide investigators with the skills and resources
they need to effectively do their jobs;
* Has focused too little attention on developing internal controls to
ensure that criteria and standards for investigating complaints are
consistently followed.
We recommended that OSHA take several actions including ensuring
investigators have necessary equipment and establishing an audit
program that provides for independence and accountability.[Footnote 4]
[End of section]
Objectives:
You asked us to update our earlier review of the program and report on
efforts to make improvements, including the status of OSHA's efforts
to implement our recommendations.
We addressed the following research objectives:
(1) What steps have been taken to ensure that whistleblower
investigators have the necessary training and equipment to do their
jobs?
(2) To what extent does the whistleblower program have adequate
internal controls to ensure effective and efficient investigations?
[End of section]
Scope and Methodology:
To address our objectives, we:
* Reviewed program guidance, and OSHA and GAO studies of the program;
* Interviewed OSHA officials in its headquarters and four regional
offices at various levels of management;
- We selected regions based on their varying size and geography, and
chose interviewees who were knowledgeable about ongoing initiatives;
* Queried all OSHA regional administrators on investigator hiring
status;
* Analyzed organizational charts and staffing and training data; and;
* Reviewed GAO's standards for internal control in the federal
government.
We conducted this performance audit from March to June 2010 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]
Summary of Findings and Recommendations:
1. OSHA established training curricula for investigators, but has done
little to ensure that investigators attend training or have the
necessary tools to do their jobs.
2. OSHA lacks sufficient internal controls to ensure that the
whistleblower program operates as intended.
3. We recommend that OSHA ensure investigators and their supervisors
complete mandatory training, track program expenses, develop strategic
goals and performance measures that are specific to the whistleblower
program, and develop an action plan for addressing internal control
weaknesses.
[End of section]
Background:
OSHA Investigates Whistleblower Complaints Across a Broad Array of
Industries:
OSHA currently has responsibility for investigating whistleblower
complaints under 18 different statutes.
* About two-thirds of complaints arise under the Occupational Safety
and Health Act of 1970 (OSH Act).
* Many of the other complaints arise under a broad array of other
statutes that cover industries such as nuclear power, transportation,
pipeline infrastructure, consumer product safety, securities, and
several environmental areas.
* To be effective, investigators must have a general understanding of
the underlying working environment in the broad range of industries,
as well as substantive provisions in each statute, according to
program officials.
Figure: OSHA's Responsibility for Whistleblower Complaints Has Grown
Over Time:
[Refer to PDF for image: line graph]
1970: Occupational Safety and Health Act.
1972: Federal Water Pollution Control Act.
1974: Safe Drinking Water Act.
1976: Toxic Substances Control Act; Solid Waste Disposal Act.
1977: International Safe Container Act; Clean Air Act.
1978: Energy Reorganization Act.
1980: Federal Railroad Safety Act; Comprehensive Environmental
Response, Compensation, and Liability Act.
1983: Surface Transportation Assistance Act.
1986: Asbestos Hazard Emergency Response Act.
2000: W.H. Ford Aviation Investment and Reform Act for the 21st
Century.
2002: Sarbanes-Oxley Act; Pipeline Safety Improvement Act.
2007: National Transit Systems Security Act.
2008: Consumer Product Safety Improvement Act.
2010: Patient Protection and Affordable Care Act.
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.
Source: GAO analysis of relevant statutes.
[End of figure]
Figure: But the Number of Whistleblower Investigators Has Remained
Relatively Flat:
[Refer to PDF for image: vertical bar graph overlaid on previous
figure]
Year: 1975;
Number of investigators: 12.
Year: 1980;
Number of investigators: 60.
Year: 1985;
Number of investigators: 59.
Year: 1990;
Number of investigators: 66.
Year: 1995;
Number of investigators: 59.
Year: 2000;
Number of investigators: 63.
Year: 2005;
Number of investigators: 70.
Year: 2010;
Number of investigators: 80.
Note: Data since 1978 include regional supervisory investigators.
Number for 2010 is as of April 1, 2010.
Source: OSHA administrative data.
[End of figure]
Figure: OSHA Operates the Whistleblower Program Through Ten Separate
Regions:
[Refer to PDF for image: map of the U.S.]
In several regions, program operations occur in multiple offices
called area offices.
Region 1:
Connecticut:
Maine:
Massachusetts:
New Hampshire:
Rhode Island:
Vermont:
Region 2:
New Jersey:
New York:
Puerto Rico:
Virgin Islands:
Region 3:
Delaware:
District of Columbia:
Maryland:
Pennsylvania:
Virginia:
West Virginia:
Region 4:
Alabama:
Florida:
Georgia:
Kentucky:
Louisiana:
Mississippi:
North Carolina:
South Carolina:
Tennessee:
Region 5:
Illinois:
Indiana:
Michigan:
Minnesota:
Ohio:
Wisconsin:
Region 6:
Arkansas:
New Mexico:
Oklahoma:
Texas:
Region 7:
Iowa:
Kansas:
Missouri:
Nebraska:
Region 8:
Colorado:
Montana:
North Dakota:
South Dakota:
Utah:
Wyoming:
Region 9:
Arizona:
California:
Nevada:
Region 10:
Alaska:
American Samoa:
Guam:
Hawaii:
Idaho:
Oregon:
Washington:
Source: OSHA.
[End of figure]
Figure: OSHA's Organizational Structure Includes a National Office
that Sets Whistleblower Policies:
[Refer to PDF for image: organization structure]
Senior Executive Service (SES) level:
Top level:
* Assistant Secretary of Labor for OSHA.
Second level, reporting to Assistant Secretary of Labor for OSHA:
* Deputy Assistant Secretary of Labor for OSHA.
Third level, reporting to Deputy Assistant Secretary of Labor for OSHA:
* OSHA Director of Enforcement;
* Ten OSHA Regional Administrators.
[End Senior Executive Service (SES) level]
Fourth level, reporting to OSHA Director of Enforcement:
* Deputy Director of Enforcement.
Fourth level, reporting to OSHA Regional Administrators:
* Organization varies by region.
Fifth level, reporting to Deputy Director of Enforcement:
* Whistleblower Program, National Office Director.
Source: GAO analysis of OSHA documents.
[End of figure]
Internal Controls Are Key to Achieving Desired Results:
Internal controls[Footnote 5] are an integral part of an agency's
efforts to ensure:
* Effectiveness and efficiency of operations;
* Reliability of financial reporting;
* Compliance with applicable laws and regulations.
The internal control standards include a focus on:
* Management's commitment to a positive, disciplined work environment
and staff competence;
* Activities or mechanisms to enforce management's directives;
* Monitoring to assess the quality of performance over time.
[End of section]
Findings:
Objective 1: OSHA Has Done Little to Ensure that Investigators Have
Necessary Tools:
Training: OSHA established training curricula for investigators, but
has done little to ensure that investigators attend mandatory training.
Equipment: OSHA has not ensured that investigators have the necessary
tools to do their jobs.
Objective 1: Training: OSHA Established Mandatory Training but
Attendance has not been Enforced:
OSHA enhanced its whistleblower training, establishing two mandatory 2-
week courses between 2007 and 2008.
* Nearly all investigators have been credited with taking the first
course, which covers basic investigation skills for OSH Act complaints.
* Just over 60 percent[Footnote 6] of investigators have taken or are
registered for the second course, which covers how to investigate
complaints filed under non-OSH Act statutes.
* Despite developing the mandatory courses, OSHA has not taken steps
to ensure that all investigators attend the training.
Figure: Attendance in the Second Training Course is Low in Some
Regions:
[Refer to PDF for image: horizontal bar graph]
Percent of investigators who have taken or registered for the second
mandatory course:
Region 1: 60%;
Region 2: 100%;
Region 3: 45%;
Region 4: 30%;
Region 5: 40%;
Region 6: 55%;
Region 7: 100%;
Region 8: 100%;
Region 9: 100%;
Region 10: 100%.
Source: GAO analysis of OSHA data as of June 10, 2010.
Note: To assess the reliability of the data, we spoke with program
officials about how the training records were developed and spoke with
a variety of regional officials who generally corroborated the data.
16 We found the data to be sufficiently reliable for this report.
[End of figure]
Investigators Have Identified the Need for Additional Training:
Investigators have identified”-and officials have agreed”-the need for
more training, particularly for some of the complex statutes where
specialized knowledge is required. For example,
* The subject matter of one statute necessitates that investigators
understand complex securities and navigate complicated legal issues in
order to conduct an investigation.
Yet, specialized training on specific, complex statutes has not been
developed due to resource constraints, according to officials.
OSHA's Lack of Focus on Training May Jeopardize the Quality and
Consistency of Investigations:
Ensuring that staff are sufficiently trained to do their jobs is a key
component of good internal controls.
Program officials have been unsuccessful in ensuring participation in
mandatory training and have not made developing more training a
priority.
According to one senior official, some regions are unwilling to send
investigators to mandatory training, citing a lack of need for such
training.
Complexity of some investigations has increased, particularly given
the addition of responsibilities under some complex statutes enacted
since 2002.
Relying solely on informal training, such as that obtained on the job,
cannot ensure that all investigators consistently acquire needed
knowledge to do their jobs.
OSHA Has Not Developed Plans to Address Equipment Needs:
Our last review found that many investigators lacked necessary basic
equipment, such as portable printers, and software to do their jobs.
These unmet needs varied by region.
We recommended that OSHA establish minimum standards for equipment and
computer software and ensure that these standards are met.
OSHA has not developed such standards and has no plans to do so,
citing resource constraints.
Officials told us that new laptops will be distributed to staff but
could not tell us when.
[End of Objective 1]
Objective 2: OSHA Lacks Sufficient Controls to Ensure Whistleblower
Program Operates as Intended:
Oversight and Accountability: OSHA lacks effective mechanisms
to hold regions accountable for compliance with program policies.
Tracking Resources: OSHA does not track whistleblower program
resources.
Assessing Performance: OSHA has not made assessing program performance
a priority.
Objective 2: Oversight and Accountability: Program Operations Vary by
Region:
OSHA's 10 regions operate autonomously and are able to make key
decisions with only limited oversight and accountability, including:
* How to investigate and process cases, such as:
- Screening complaints;
- Docketing cases in the program's tracking system;
- Deciding case outcomes.
* How to allocate resources.
* How investigators are supervised.
We previously found that regional variation in the standards used to
screen out complaints, for example, may have led to differing outcomes
for whistleblowers.
Figure: Supervisors Approving Investigation Decisions in At Least Two
Regions Lack Formal Whistleblower Training:
[Refer to PDF for image: illustration]
Region A:
Deputy Regional Administrator:
* Assistant Regional Administrator;
- Area Director (Approves decisions recommended by investigator);
- Investigator (Formally trained in Whistleblower Program).
Region B:
Deputy Regional Administrator:
* Assistant Regional Administrator;
* Program Manager (Formally trained in Whistleblower Program);
- Area Director (Approves decisions recommended by investigator);
- Investigator (Formally trained in Whistleblower Program).
Region C:
Deputy Regional Administrator:
* Assistant Regional Administrator;
* Regional Supervisory Investigator (Approves decisions recommended by
investigator); (Formally trained in Whistleblower Program);
- Investigator (Formally trained in Whistleblower Program).
Source: GAO analysis of OSHA documents.
[End of figure]
OSHA Lacks a Consistent Appeals Process for OSH Act Complaints:
No statutory process exists for appeals under the OSH Act, but the
whistleblower manual provides for the national office to decide such
appeals.
To improve the timeliness of appeal decisions, three regions are
piloting a process in which OSH Act appeals are decided within the
region, each using different methods.
* Region 4: The Area Director who approved the original decision
drafts a response to the appeal for the regional administrator's
consideration;
* Region 5: A committee of regional and area office management reviews
the case and decides the appeal;
* Region 6: The region's solicitor reviews the appeal and recommends a
decision to the regional administrator.
Some OSHA officials questioned whether appeals receive an independent
review when decided within the region that conducted the investigation.
The Program's National Office Has Little Ability to Ensure Regional
Compliance with Policies:
The whistleblower program's national office lacks the mechanisms, such
as access to accurate data and actual case files, to ensure compliance
with program policies and procedures.
* Electronic data on cases exist, but we reported in 2009 that the
data on outcomes and processing times are often inaccurate.
* We recommended that OSHA develop a mechanism to ensure that the data
on cases are accurate and that regions are held accountable for data
accuracy.
OSHA has proposed triennial reviews of each region's cases to improve
data accuracy and regional compliance with program policies, but has
not established plans for implementing such reviews.
We Previously Found that OSHA's Audit Program Does Not Hold Regions
Accountable for the Quality and Consistency of Investigations:
More than one year ago, we found:
* The whistleblower program was not routinely or consistently audited;
* Audits, when performed, lacked independence;
* Audit guidance lacked clear criteria;
* Complete audit findings were not routinely communicated to OSHA
headquarters;
* No mechanism existed for ensuring audit findings were addressed.
OSHA's Audit Program Remains Ineffective:
We made several recommendations to OSHA to bring the audit system in
line with government standards.
Audits are central in any effort to ensure that criteria and standards
for investigating complaints are consistently followed.
While OSHA has made minor changes to the audit program, the steps
taken have not fully addressed our prior recommendations.
Objective 2: Tracking Resources:
Few Safeguards Exist to Ensure that Resources are Used as Intended:
Neither OSHA's regions nor its central budget office track
whistleblower expenses separately from other programs.
* Although each region operates within a budget allocation for
personnel slots (FTE) and other expenses, they have wide latitude in
how they deploy resources across programs.
* OSHA received funding that supported 25 additional FTEs for
whistleblower investigators in fiscal year 2010, but some program
officials have expressed concern that the new allocation may be used
for non-whistleblower activities.
* OSHA's budget office does not monitor whether new FTEs intended for
the whistleblower program are being used for other programs.
The Process Used to Allocate the 25 New FTEs was Not Transparent:
OSHA's Directorate of Enforcement developed a proposal for allocating
the new FTEs that was based on average caseloads and case complexity.
This allocation was endorsed by the Assistant Secretary.
The final FTE allocation was markedly different from the one endorsed
by the Assistant Secretary.[Footnote 7]
- Some regions received as many as 3 fewer investigators than
proposed, and another as many as 3 more.
- Some regional officials have expressed confusion about how the final
decision was made.
Objective 2: Assessing Performance:
OSHA Has Not Made Assessing Whistleblower Program Performance a High
Priority:
Key performance documents do not contain specific goals or measures
for the whistleblower program. These include:
* OSHA's portion of Department of Labor's strategic plan.
* Budget justifications.
Timeliness is the only performance measure OSHA tracks for the
program, yet such measurement has significant limitations.
* We previously found that OSHA's data on investigation timeliness are
unreliable.
* Measuring timeliness alone may provide incentive to close cases
prematurely.
OSHA Is Planning a Review of Whistleblower Program Operations:
OSHA officials recently stated that they would conduct a "top-to-
bottom" review of the program before addressing any of the
longstanding issues in the whistleblower program, despite the several
reviews already completed.
Three OSHA mid-level employees with program familiarity are conducting
the review in addition to their regular work.
Senior officials expect the review to cover operations in the
program's national office and in the regions.
A final report, which may contain recommendations for improvement, may
be ready by this fall, according to officials.
[End of Objective 2]
[End of section]
Conclusions:
For over 20 years, we have repeatedly found that OSHA lacks sufficient
internal controls to ensure that standards for investigating
whistleblower complaints are consistently followed.
* Little progress has been made in implementing our recommendations
[Footnote 8] and significant internal control problems remain.
In general, "top-to-bottom" reviews can be helpful in understanding
what needs improvement. But, OSHA management already has much of the
information it needs to move forward.
The problems we have identified appear systemic and sustained
management attention is needed to address them.
Without further action, whistleblowers will continue to have little
assurance that a complaint filed in one region would have the same
outcome if it were filed in another.
Serious questions remain about whether the whistleblower program is
appropriately structured or that the national office has sufficient
control mechanisms to ensure the quality and consistency of
investigations.
In addition, without improved accountability for program resources, it
may be difficult for OSHA to demonstrate that it is using the
resources as Congress intended.
Further, absent goals specifically related to the whistleblower
program, OSHA will continue to lack the ability to gauge program
performance.
[End of section]
Recommendations:
To improve performance and oversight of the whistleblower program,
the Secretary of the Department of Labor should require OSHA to:
* Ensure that all investigators complete mandatory training;
* Require area directors who supervise investigators to complete the
mandatory investigator training;
* Track whistleblower program expenses, including FTEs, separately
from other OSHA programs, and annually report these expenses to
Congress;
* Develop an action plan, with specific milestones, for addressing
internal control weaknesses that have been identified. This should
include developing mechanisms to strengthen the national office's
control over the program; and;
* Incorporate strategic goals specifically for the whistleblower
program into Labor's strategic plan and develop performance measures
to track progress in achieving them.
[End of section]
Attachment I: Status of Implementing GAO Recommendations[A]:
GAO Recommendation (January 2009): OSHA should 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;
Department of Labor's Response (April 2009): OSHA is launching a new
information system by the end of 2010 that will enable staff to enter
screen outs and their accompanying reasons;
Status: In progress.
GAO Recommendation (January 2009): OSHA should 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;
Department of Labor's Response (April 2009): OSHA plans to retrain
users on the correct entry of data with the deployment of its new
information system and is developing a quality control program;
Status: No action yet.
GAO Recommendation (January 2009): OSHA should revise its field audit
directive to clarify the criteria that regions must use in conducting
focused and comprehensive audits;
Department of Labor's Response (April 2009): OSHA will revise the
field audit directive to clarify the criteria that regions must use in
conducting focused and comprehensive field audits;
Status: Action taken does not satisfy recommendation.
GAO Recommendation (January 2009): OSHA should revise its field audit
directive to require that the audit be conducted by an entity outside
the control of the regional administrator whose programs are being
audited to ensure independence;
Department of Labor's Response (April 2009): This recommendation has
significant resource implications. OSHA will examine alternatives to
ensure independence of audits;
Status: No action.
GAO Recommendation (January 2009): OSHA should revise its field audit
directive to require that regions submit complete reports of the audit
findings and recommendations to OSHA's national office upon completion
of an audit, along with periodic updates on corrective actions taken;
Department of Labor's Response (April 2009): OSHA will revise the
field audit directive to require that complete audit reports are
submitted to the national office. OSHA will reexamine its approach to
tracking corrective actions including having regions submit periodic
status reports;
Status: No action.
GAO Recommendation (January 2009): OSHA should develop interim audit
milestones that regions must meet in order to ensure that audits are
completed within specified time frames;
Department of Labor's Response (April 2009): Until an automatic
tracking system is developed, OSHA will enhance its monitoring of the
timely completion of audits by, for example, contacting regions at the
halfway mark to request an update;
Status: No action.
GAO Recommendation (January 2009): OSHA should 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;
Department of Labor's Response (April 2009): This recommendation has
significant resource implications and, in the coming months, OSHA will
weigh options to meet investigators' equipment and software needs;
Status: No action.
GAO Recommendation (January 2009): The Administrative Review Board
should 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;
Department of Labor's Response (April 2009): The cost effectiveness of
an independent review is questionable. Improved data validity has been
obtained through in-house efforts such as additional training;
Status: Action taken does not satisfy recommendation.
Source: GAO analysis.
[A] From GAO, Whistleblower Protection Program: Better Data and
Improved Oversight Would Help Ensure Program Quality and Consistency,
GAO-09-106, (Washington, D.C.: January 2009).
[End of table]
Attachment II: Data on FTE Allocation by Region:
Region: 1;
New complaints in FY09: 158;
Percent of complaints that are not OSH Act or STAA: 27%;
On board investigators (January: 2010): 7;
New complaints in FY09 per on board investigator (January: 2010): 23;
Proposed allocation of new FTE (January: 2010): 1;
Allocation of new FTE according to OSHA Administration (February
2010): 1;
Allocation of new FTE according to OSHA Regions (April 2010): 2.
Region: 2;
New complaints in FY09: 245;
Percent of complaints that are not OSH Act or STAA: 40%;
On board investigators (January: 2010): 11;
New complaints in FY09 per on board investigator (January: 2010): 22;
Proposed allocation of new FTE (January: 2010): 5;
Allocation of new FTE according to OSHA Administration (February
2010): 2;
Allocation of new FTE according to OSHA Regions (April 2010): 2.
Region: 3;
New complaints in FY09: 168;
Percent of complaints that are not OSH Act or STAA: 24%;
On board investigators (January: 2010): 5;
New complaints in FY09 per on board investigator (January: 2010): 34;
Proposed allocation of new FTE (January: 2010): 1;
Allocation of new FTE according to OSHA Administration (February
2010): 1;
Allocation of new FTE according to OSHA Regions (April 2010): 1.
Region: 4;
New complaints in FY09: 442;
Percent of complaints that are not OSH Act or STAA: 19%;
On board investigators (January: 2010): 12;
New complaints in FY09 per on board investigator (January: 2010): 37;
Proposed allocation of new FTE (January: 2010): 4;
Allocation of new FTE according to OSHA Administration (February
2010): 4;
Allocation of new FTE according to OSHA Regions (April 2010): 4.
Region: 5;
New complaints in FY09: 467;
Percent of complaints that are not OSH Act or STAA: 16%;
On board investigators (January: 2010): 14;
New complaints in FY09 per on board investigator (January: 2010): 33;
Proposed allocation of new FTE (January: 2010): 3;
Allocation of new FTE according to OSHA Administration (February
2010): 4;
Allocation of new FTE according to OSHA Regions (April 2010): 3.
Region: 6;
New complaints in FY09: 218;
Percent of complaints that are not OSH Act or STAA: 33%;
On board investigators (January: 2010): 7;
New complaints in FY09 per on board investigator (January: 2010): 31;
Proposed allocation of new FTE (January: 2010): 1;
Allocation of new FTE according to OSHA Administration (February
2010): 4;
Allocation of new FTE according to OSHA Regions (April 2010): 4.
Region: 7;
New complaints in FY09: 124;
Percent of complaints that are not OSH Act or STAA: 14%;
On board investigators (January: 2010): 3;
New complaints in FY09 per on board investigator (January: 2010): 41;
Proposed allocation of new FTE (January: 2010): 1;
Allocation of new FTE according to OSHA Administration (February
2010): 3;
Allocation of new FTE according to OSHA Regions (April 2010): 3.
Region: 8;
New complaints in FY09: 132;
Percent of complaints that are not OSH Act or STAA: 20%;
On board investigators (January: 2010): 3;
New complaints in FY09 per on board investigator (January: 2010): 44;
Proposed allocation of new FTE (January: 2010): 2;
Allocation of new FTE according to OSHA Administration (February
2010): 3;
Allocation of new FTE according to OSHA Regions (April 2010): 3.
Region: 9;
New complaints in FY09: 122;
Percent of complaints that are not OSH Act or STAA: 69%;
On board investigators (January: 2010): 4;
New complaints in FY09 per on board investigator (January: 2010): 31;
Proposed allocation of new FTE (January: 2010): 5;
Allocation of new FTE according to OSHA Administration (February
2010): 2;
Allocation of new FTE according to OSHA Regions (April 2010): 2.
Region: 10;
New complaints in FY09: 84;
Percent of complaints that are not OSH Act or STAA: 43%;
On board investigators (January: 2010): 3;
New complaints in FY09 per on board investigator (January: 2010): 28;
Proposed allocation of new FTE (January: 2010): 2;
Allocation of new FTE according to OSHA Administration (February
2010): 1;
Allocation of new FTE according to OSHA Regions (April 2010): 1.
Region: All Regions;
New complaints in FY09: 2160;
Percent of complaints that are not OSH Act or STAA: 27%;
On board investigators (January: 2010): 69;
New complaints in FY09 per on board investigator (January: 2010): 31;
Proposed allocation of new FTE (January: 2010): 25;
Allocation of new FTE according to OSHA Administration (February
2010): 25;
Allocation of new FTE according to OSHA Regions (April 2010): 25.
Sources: OSHA, except for "New Complaints in FY09 per on board
investigator" which is GAO analysis of OSHA data.
Note: STAA is the Surface Transportation Assistance Act of 1982.
[End of table]
[End of Briefing Slides]
Appendix II: Comments from the Department of Labor:
U.S. Department of Labor:
Assistant Secretary for Occupational Safety and Health:
Washington, D.C. 20210:
July 16, 2010:
Mr. George A. Scott, Director:
Education, Workforce, and Income Security Issues:
U.S. Government Accountability Office:
441 G Street, N.W.
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: Sustained Management Attention Needed to Address Long-
Standing Program Weaknesses. The following comments are submitted on
behalf of the Department of Labor's Occupational Safety and Health
Administration (OSHA).
OSHA appreciates the time and effort that GAO placed in its
evaluation. OSHA agrees with most of the recommendations and will
continue the progress made in the year between issuance of the January
2009 report and the initiation of this current report. The following
represents the Agency's initial response to the GAO recommendations as
well as a few concerns and disagreements raised with the GAO findings.
GAO Recommendations and OSHA Responses:
GAO Recommendation: Ensure that all investigators complete mandatory
training.
OSHA Response: OSHA agrees with this recommendation and will ensure
that all investigators complete the second-level training within the
next 18 months.
GAO Recommendation: Require staff who supervise investigators to
complete the mandatory investigator training.
OSHA Response: The Agency plans during the next 18 months that all
Area Directors who have not yet taken the mandatory training will
receive such training.
GAO Recommendation: Track Whistleblower Program expenses, including
FTEs, separately from other OSHA Programs, and annually report these
expenses to Congress.
OSHA Response: OSHA does currently track hiring and staffing in the
Whistleblower Program. The Department is currently analyzing the
impact of the landmark Patient Protection and Affordable Care Act on
the Whistleblower Program, and is exploring program improvements in
connection to the FY 2012 budget.
GAO Recommendation: Develop an Action Plan, with specific milestones,
for addressing identified internal control weaknesses. This plan
should include mechanisms for strengthening the whistleblower National
Office's control over the program.
OSHA Response: The Deputy Assistant Secretary for Enforcement and
Field Operations in OSHA is exploring a variety of issues, including
internal control weaknesses. For example, the Agency is looking at
restructuring the office to assure better training and regional
oversight. Currently, an evaluation team is conducting an in depth
program evaluation assessment of the Whistleblower Program in the
field and National Office. Their charge is to make recommendations to
the Assistant Secretary on programmatic changes to assure that there
is consistency and program delivery is greatly improved.
GAO Recommendation: Incorporate strategic goals specifically for the
Whistleblower Program into Labor's strategic plan and develop
performance measures to track progress in achieving them.
OSHA Response: The Department is currently in the process of
developing the FY 2011 ” 2016 Strategic Plan. One of the outcome goals
in the strategic plan is to "ensure worker voice in the workplace."
The Whistleblower Program currently plays an important part in the
Department's worker voice efforts. In an effort to more fully
implement the strategic plan when published, OSHA will develop and
incorporate related performance measures in its Fiscal Year 2011
Operating Plan.
Additional Issues Raised by the GAO Report:
Organizational Structure: The chart labeled "OSHA's Organizational
Structure Includes a National Office that sets Whistleblower
Policies," has the Whistleblower Program National Office Director
reporting to the Deputy Director of Enforcement Programs. This line of
reporting is not correct. All Office Directors in the Directorate of
Enforcement Programs report directly to the Director of Enforcement
Programs.
Equipment: In the previous GAO investigation of the Whistleblower
Program as well as this current report, GAO maintains that OSHA has
not ensured that investigators have the necessary tools to do their
jobs. The lack of laptop computers and docking stations is a general
and well-recognized problem for OSHA's compliance officers and
whistleblower investigators. Purchasing new computers for the entire
field staff has been a significant fiscal issue. The purchase of new
computers to provide to field staff is currently underway and will be
completed over the first quarter of FY 2011.
Consistency: The GAO has pointed out that the Whistleblower Program
operations vary by Region. To address this concern by the GAO, an
evaluation team is conducting an in-depth program evaluation
assessment of the Whistleblower Program in the field and National
Office. Their charge is to make recommendations to the Assistant
Secretary on programmatic changes to assure that there is consistency
and program delivery is greatly improved. The audit program and the
Whistleblower Program office case file review will then assure that
the OSHA Regions are consistent in their approach to program
management. Additionally, once the new Whistleblower Program manual is
completed and goes into effect, all investigators and supervisors will
be trained on the manual.
Transparency: The GAO maintains that the process used to allocate the
25 new FTEs was not transparent. OSHA disagrees with this assertion.
Various options were developed and shared with the Whistleblower
Program Office and the Regional Administrators before a final decision
was made by the Assistant Secretary. In order to fairly allocate the
new FTE's, the Agency utilized a computer program similar to that used
to assign new compliance officers. The program evaluated the number of
cases, the number of complaints, on-board investigators, percent of
complaints received that were not under Section 11(c) of the Act, and
other factors to assign the whistleblower FTEs to each of the Regions.
This model was shared with the Whistleblower Program Office which
provided input and the program was modified. The new allocation was
then shared with the Regional Administrators who provided additional
input. The different options were shared with the Assistant Secretary
who made a final decision on allocation of the whistleblower FTEs.
This decision was then explained to all of the Regional
Administrators. The document referenced in the report that was signed
by the Assistant Secretary was a general program overview, not the
official allocation that had been authorized previously.
OSHA appreciates the opportunity to review and respond to GAO's draft
report.
Sincerely,
Signed by:
David Michaels, PhD, MPH:
[End of section]
Appendix III: GAO Contact and Staff Acknowledgments:
GAO Contact:
George A. Scott, (202) 512-7215 or scottg@gao.gov:
Staff Acknowledgments:
In addition to the contact named above, Dianne Blank (Assistant
Director) and Joel Green (Analyst-in-Charge) supervised the
development of this product. Nancy Cosentino and Rachel Frisk helped
with data collection. In addition, Carol Henn and Melissa Wolf helped
with conceptual development of our study; Michele Fejfar helped assess
data reliability; James Bennett provided graphic assistance; Susannah
Compton provided writing assistance; Alex Galuten provided legal
support; and Amy Sweet and Kathy White verified our findings.
[End of section]
Related GAO Products:
Whistleblower Protection Program: Better Data and Improved Oversight
Would Help Ensure Program Quality and Consistency. [hyperlink,
http://www.gao.gov/products/GAO-09-106]. Washington, D.C.: January 27,
2009.
Internal Control Management and Evaluation Tool. [hyperlink,
http://www.gao.gov/products/GAO-01-1008G]. Washington, D.C.: August
2001.
Standards for Internal Control in the Federal Government. [hyperlink,
http://www.gao.gov/products/GAO/AIMD-00-21.3.1]. Washington, D.C.:
November 1999.
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] GAO, Whistleblower Protection Program: Better Data and Improved
Oversight Would Help Ensure Program Quality and Consistency,
[hyperlink, http://www.gao.gov/products/GAO-09-106] (Washington, D.C.:
Jan. 27, 2009); and 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).
[2] GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1],
(Washington, D.C.: November 1999).
[3] See GAO, Whistleblower Protection Program: Better Data and
Improved Oversight Would Help Ensure Program Quality and Consistency,
[hyperlink, http://www.gao.gov/products/GA0-09-106] (Washington, D.C.:
Jan. 27, 2009) and 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).
[4] See attachment I for recommendations made in January 2009.
[5] See GAO, Standards for Internal Control in the Federal Government,
[hyperlink, http://www.gao.gov/products/GAO/AIMD-00-21.3.1],
(Washington, D.C.: November 1999).
[6] As of June 10, 2010.
[7] See attachment II for detailed information on FTE allocations by
region.
[8] See attachment I for status of recommendations made in January
2009.
[End of section]
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