DOL Inspector General finds flaws in most OSHA whistleblower investigations

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Last week the U.S. Department of Labor’s Inspector General’s office issued a report finding that most of the Department’s whistleblower investigations are flawed. The IG’s office reviewed investigative files of the Occupational Safety and Health Administration (OSHA) which has responsibility to enforce the employee protections of 17 federal statutes. It found that OSHA dismissed 77% of the whistleblower complaints. In 21% of cases, the complainant withdrew the complaint, either with or without a settlement. That left 2% of cases in which OSHA found the complaint had merit. This is not a rate that would encourage employees to come forward with concerns that might provoke retaliation.

The study examined a sample of the files for compliance with eight essential components of an investigation. These components are things like interviewing the complainant, documenting that interview, asking for witnesses, interviewing the witnesses, visiting the site, allowing the complainant to respond to the employer’s claims, and conducting a closing conference. “These elements are essential to the investigative process to ensure that complainants receive appropriate investigations,” the report states at page 3. Compliance with these standards ranges from 54% (conducting face-to-face visits, or a site visit) to 85% (holding a closing conference). The IG concluded that 80% of the investigations failed to meet one or more of the eight essential elements. 

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Unfortunately, the IG’s office did not record how many of the sampled investigations actually met all eight standards, but instead estimated the overall compliance from the measures for each of the eight components. To do this, the IG used an “unbiased point estimator.” This type of estimation assumes that compliance with any one of the eight components is not correlated with any of the others. In fact, I suspect that an investigator who cuts corners on one component is more likely to cut corners on the others as well. This effect would tend to concentrate the errors into a smaller number of overly-flawed investigations. Anyway, the IG concluded that the odds are 90% that OSHA’s overall error rate in whistleblower investigations is between 72 and 87 percent.

Also, readers should be aware that the IG studied only those OSHA investigations that were concluded between November 1, 2008, and October 31, 2009. These months include the last months of the Bush Administration and the first months of the Obama Administration. The Obama Administration’s appointment to head OSHA, Dr. David Michaels, was not confirmed by the Senate until December 3, 2009 – after the period covered by this study. So, this study really reflects the performance of the OSHA whistleblower program under the prior administration.

Dr. Michaels has responded to the IG report, and to the recent report of the General Accounting Office (GAO). My colleague, Lindsey Williams, posted that report here. Dr. Michaels’ response recognizes that OSHA’s Whistleblower Protection Program has been weak, and needs improvement. Indeed, Dr. Michaels made a speech last Spring on the importance of improving the Whistleblower Protection Program. He announced then that he was launching a “top-to-bottom” review of that program with an eye toward making its performance match the public purpose it serves.

In response to the GAO report, OSHA last month added a requirement in its Management Action Plan (MAP) to check on the Whistleblower Protection Program when conducting audits of field offices. OSHA is also revising its Whistleblower Investigations Manual to add requirements for supervisors to provide guidance and oversight in investigations and settlement discussions. OSHA is also developing a roster of whistleblower experts that investigators and their supervisors can call upon.

The IG’s report is the subject of a press release by Public Employees for Environmental Responsibility (PEER), and articles released by Government Executive, FairWarning and the Washington Times (which called the report “little-noticed”).