GAO: OSHA Whistleblower Process in Disarray

The various criticisms of OSHA in recent years from various parties inside and outside the safety and health profession haven't stopped the agency from receiving funding increases, and for the moat part critics haven't spurred reforms. OSHA has had its jurisdiction enlarged somewhat, both at U.S. Postal Service locations and in managing the Whistleblower Protection Program for the U.S. Department of Labor. The Government Accountability Office posted a new report Feb. 26 that says OSHA isn't managing that program well.

GAO, which performs audit in response to requests from members of Congress, said that its investigators visited five OSHA regional offices and examined electronic data files kept by OSHA and the two organizations to which decisions can be appealed: the Office of Administrative Law Judges (OALJ) and the Administrative Review Board (ARB). GAO also reviewed case files, gave investigators an online survey, and interviewed key officials.

The GAO summary of the findings says DOL "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." Also, "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."

GAO said the percentage of cases won by whistleblowers "may be somewhat lower than Labor's data show," which is that whistleblowers won 21 percent of complaints, but "nearly all settled through a separate agreement involving the whistleblower and the employer, rather than through a decision rendered by OSHA." GAO said it "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."

The auditors recommended that new Labor Secretary Hilda Solis direct the assistant secretary of OSHA to ensure OSHA's data are accurate and tighten up the other areas identified in the report. All eight recommendations are pending, according to GAO.

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