A recent report from the Government Accountability Office (GAO) says what many whistleblower practitioners have long known: the Department of Labor’s whistleblower program needs more resources and better quality. Investigators do not have the equipment, training, legal counsel or oversight needed to assure quality investigations.
The GAO discovered that OSHA does not have the systems in place to assure the accuracy of case statistics, the agency’s processing time, reasons for screening out complaints, and the outcomes of settlements. GAO found that the Office of Administrative Law Judges (OALJ) did have reliable and verifiable case tracking data, and its average processing time for a whistleblower appeal was nine (9) months. The Administrative Review Board (ARB) considers appeals from ALJ decisions, and its processing time can range from thirty (30) days to five (5) years. GAO found that the ARB does not have reliable data of its docket flow and lacks oversight of its data quality.
Overall, the GAO found that whistleblower caseloads are increasing, and the cases themselves are becoming more complex. GAO recommended that each OSHA Regional Office conduct an independent audit of its whistleblower program to identify program deficiencies and the corrective actions needed.
For outcomes, GAO found that OSHA’s report of a 21 percent success rate for whistleblowers could be misleading. OSHA includes all settled cases in the "successful" category. As a result, "nearly all" of the successful cases were settlements, rather than OSHA decisions on the merits. GAO found that even some of the settled cases were not properly recorded, and the actual success rate is more likely 19 percent. These statistics suggest that OSHA investigators work with employer’s lawyers and encourage settlement in cases where OSHA would otherwise find merit. In cases were OSHA is accepting the employer’s word about its motives for an adverse action, most investigators simply issue a determination to dismiss the whistleblower’s complaint. In appeals to OALJ, whistleblowers win less than a third of the contested cases.
GAO found that OSHA has not even established a minimum equipment list saying what investigators should have. Some, but not all, have laptop computers and portable printers to take written statements in the field.
The GAO report arrives at an opportune moment. The new Secretary of Labor Hilda Solis has an opportunity to give the whistleblower program new leadership that reflects a commitment to protecting whistleblowers.