On November 23, the U.S. Department of Labor (DOL) Office of Inspector General (OIG) released a report titled “Region IX Whistleblower Protection Program Complaints Were Not Complete or Timely.” The report compiles the findings of the DOL OIG’s audit of Region IX of the Occupational Safety and Health Administration (OSHA) Whistleblower Protection Program (WPP). The audit was conducted in response to a whistleblower disclosure about misconduct in the Region IX office.
While OIG determined that there was “no evidence of misconduct, nor evidence of any other issue that would rise to the level of ‘violations of law, rule, or regulation and gross mismanagement,” the report does enumerate a number of problems with Region IX’s handling of whistleblower complaints. OIG specifically found problems with the completeness and timeliness of the investigations: 96% of investigations did not meet all the essential elements mandated for investigations and 88% “exceeded statutory timeframes for investigations by an average of 634 days.”
OSHA’s Region IX includes California, Nevada, Arizona, Hawaii, and a number of U.S. Territories in the Pacific. The report notes that in FY 2018, the average caseload in Region IX was 57% higher than the national average; however, issues with OSHA’s WPP are prevalent all across the country. The report follows a number of other reports this year that document OSHA’s shortcomings in handling whistleblower complaints, particularly in light of the COVID-19 pandemic.
OSHA’s WPP was established in 1970 with the passage of the Occupational Health and Safety Act. WPP is meant to protect employees from retaliation for raising concerns about health and safety issues at their workplace. Over the years, WPP’s scope has expanded and is now in charge of enforcing 23 separate statutes which prohibit retaliation against employees who report violations of law by their employer. WPP investigates complaints of whistleblower retaliation and if the investigation finds merit to the complaint, the whistleblower may be entitled to remedies such as back-pay and reinstatement.
No Evidence of Misconduct
The report on Region IX was conducted after the Office of Special Counsel (OSC) contacted the DOL about a whistleblower disclosure alleging OSHA’s Region IX “had breakdowns processing the complaints it received, which in turn resulted in widespread failure to protect complainants.” This whistleblower was a former investigator for OSHA from 2010-2015.
To determine if there was misconduct, OIG tested a sample of whistleblower complaints, interviewed investigators at Region IX about the operational resources OSHA provides them. OIG also reviewed 15 WPP cases and 77 allegations provided by the whistleblower. Additionally, OIG followed up on recommendations made in prior audits to track if OSHA had implemented proper corrective measures.
Despite the presence of major issues, OIG determined that OSHA Region IX’s conduct did not rise to the level of “violations of law, rule, or regulation and gross mismanagement.” While 96% of Region IX’s investigations audited by OIG did not meet all the essential requirements, OIG claims that it “did not find any evidence of misconduct by OSHA staff or managers related to those investigations.” OIG also came to the determination that “with regard to gross mismanagement, there was insufficient information to determine if not meeting all essential elements would have had a significant adverse impact on OSHA mission.” The report does not explain why the problems outlined in the report would not have a significant adverse impact on OSHA’s mission to protect workers.
The whistleblower whose disclosure initiated the OIG audit provided OIG with 5 general allegations and 72 specific allegations for 15 cases. According to the report, “of the Whistleblower’s 5 general allegations, 3 were not substantiated and 2 could not be substantiated because the Whistleblower did not provide evidence to support the allegations and declined to be interviewed by OIG.” Additionally the report claims that “of the 72 allegations, 47 were not substantiated based on OSHA records and interviews, 24 could not be substantiated due to lack of information or records, and 1 had some merit.” OIG therefore concluded that their analysis of the allegations “did not reveal evidence of violations of law, rule, or regulation, and gross mismanagement.”
Problems with Region IX
Despite claiming there was no evidence of misconduct, the report does document major problems with Region IX’s handling of whistleblower complaints. The report claims “Region IX had problems with the completeness and timeliness of whistleblower complaint investigations – worse than the results reported by OIG in 2010 and 2015.”
OIG reviewed the Whistleblower Investigations Manual (WIM), which sets forth the policy and procedures for WPP investigations, and identified eight essential elements for investigating a whistleblower complaint. OIG then reviewed 75 investigations conducted by Region IX to determine if they met the essential elements. According to the report, 72 of 75 cases contained errors in 1 or more of the essential elements. The two essential elements which most cases had errors in were “conduct supervisory review” and “contact the complainant.”
OIG also found that out of the 75 reviewed cases, 66 exceeded the statutory timeframe to complete an investigation by a startling average of 634 days. The statutory timeframe varies among the 23 statutes under WPP’s purview but only range from 30 – 90 days. These massive delays in investigation mean that whistleblowers may go years without pay if they were fired for their disclosure.
Lastly, OIG determined that OSHA “has not successfully implemented effective corrective actions to ensure a reasonable balance between quality and timeliness.” Specifically, a recommendation made in a 2015 OIG report on WPP remains incomplete. This recommendation was that OSHA “develop and implement a process to ensure reasonable balance is applied between the quality and timeliness to complete investigations within statutory timeframes.” OIG claims that despite OSHA’s efforts, this balance remains unachieved.
The report concluded with the following four recommendations for the Principal Deputy Assistant Secretary for Occupational Safety and Health:
- “Explore solutions to improve case management, including tracking completion of the essential elements and alerting the investigator and supervisor when there are periods of inactivity on an investigation.
- Develop and implement a system to track and monitor the work performed by FTEs to better allocate personnel costs by program and ensure resources are used as intended.
- Continue efforts to find solutions to developing a reasonable balance between the quality and timeliness of investigations.
- Ensure OSHA issues an updated WIM by the end of FY 2021 and complete desk guides for all applicable statutes.”