Whistleblower Protection Program
Better Data and Improved Oversight Would Help Ensure Program Quality and Consistency
GAO-09-106, Feb 26, 2009
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Workers who "blow the whistle" on prohibited practices play a role in enforcing federal laws, but these workers risk reprisals from their employers. The Whistleblower Protection Program at the Department of Labor's (Labor) Occupational Safety and Health Administration (OSHA) is responsible for investigating whistleblowers' complaints. OSHA's decisions generally may be appealed to the Office of Administrative Law Judges (OALJ) and, ultimately, the Administrative Review Board (ARB). GAO examined (1) what is known about processing times for complaints and what affects these times, (2) what outcomes resulted, and (3) what challenges OSHA faces in administering the program. To answer these questions, GAO analyzed electronic data files from OSHA, OALJ, and ARB; visited five OSHA regional offices; reviewed case files; conducted a Web-based survey of investigators; and interviewed key officials.
Labor 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. 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. Whistleblowers received a favorable outcome in a minority of cases that were closed in fiscal year 2007, both at initial decision and on appeal, but the actual proportion may be somewhat lower than Labor's data show. OSHA's data show that whistleblowers received a favorable outcome in 21 percent of complaints--nearly all settled through a separate agreement involving the whistleblower and the employer, rather than through a decision rendered by OSHA. However, GAO 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. OSHA's new field audit program has begun to address this need but is lacking in several key areas. For example, the current audit processes do not adequately provide for independence, an important aspect of an effective audit program. Moreover, OSHA is challenged to ensure that investigators in all regions have the resources they need to address their large and complex caseloads. OSHA has not established minimum equipment standards for its investigators, and nearly half of the whistleblower investigators reported that the equipment they have does not meet the needs of their jobs. Furthermore, investigators often cite the need for more training and legal assistance on the complex federal statutes that OSHA administers.
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Recommendations for Executive Action
Recommendation: In order to ensure that all investigators have the necessary equipment and computer software resources, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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 .
Agency Affected: Department of Labor
Status: Open
Comments: OSHA noted that this recommendation may have significant resource implications that must be balanced against other critical program priorities. The agency will weigh the options and do what it can to meet the equipment and software needs of investigators. As of June 2010, officials reported that new laptops will be distributed to staff and expects to have that completed during the first quarter of fiscal year 2011. However, OSHA has not developed minimum equipment standards and has no plans to do so. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: In order to ensure the quality and consistency of the whistleblower program and to ensure that OSHA has reliable information to use to monitor the program, the Secretary of Labor should direct the Assistant Secretary of OSHA to develop interim audit milestones that regions must meet in order to ensure that audits are completed within specified time frames.
Agency Affected: Department of Labor
Status: Open
Comments: OSHA intends to integrate information from the field audit program into the OSHA Information System (OIS), which is currently under development, and which will provide a platform for inputting and reporting key data on the completion of field audits. In the interim, the OSHA National Office will continue to monitor the initiation and timely completion of audits through the Directorate of Evaluation and Analysis, Office of Evaluation and Audit Analysis (OEAA) manual tracking system. OSHA reports that it will also enhance the current tracking system by adding additional elements. OEAA will require regional audit coordinators to provide notice to OEAA stating they have opened the audit after the opening conference. DEA will also initiate contact with the regional audit coordinator at the halfway mark requesting an update, in addition to the current requirement to document completion. As of June 2010, DEA had begun to track audit milestones, but did not hold regional audit teams accountable for meeting them. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: In order to ensure the quality and consistency of the whistleblower program and to ensure that OSHA has reliable information to use to monitor the program, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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.
Agency Affected: Department of Labor
Status: Open
Comments: OSHA will implement specific revisions regarding the submission of audit reports. The current field audit directive requires that a summary report be submitted for each completed audit, identifying significant findings and recommendations. When the field audit directive is revised, OSHA will require that the complete audit report be submitted to the Directorate of Evaluation and Analysis (DEA) and that workpapers and documents be maintained in accordance with an approved records retention schedule and available to DEA upon request. DEA will continue to advise the Assistant Secretary of significant audit findings and recommendations and will include a requirement in the field audit directive to share information, including whistleblower audit information, with each OSHA National Office directorate having an organizational or programmatic interest in the topic that is the subject of an audit report. As of June 2010, OSHA has not yet made this change to the field audit nor does the Directorate of Evaluation and Analysis require that regions submit complete audit reports. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: In order to ensure the quality and consistency of the whistleblower program and to ensure that OSHA has reliable information to use to monitor the program, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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.
Agency Affected: Department of Labor
Status: Open
Comments: OSHA noted that this recommendation may have significant resource implications that must be balanced against other critical program priorities. The agency will examine alternatives to ensure independence of the audit function and implement enhancements to the program to ensure quality and consistency of not only the whistleblower program, but all OSHA programs conducted by its field offices. As of June 2010, OSHA had made minor modifications to its field audit directive, but none of the changes were responsive to our recommendations. OSHA reports no changes in the way it conducts audits of the whistleblower program. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: In order to ensure the quality and consistency of the whistleblower program and to ensure that OSHA has reliable information to use to monitor the program, the Secretary of Labor should direct the Assistant Secretary of OSHA to revise its field audit directive to clarify the criteria that regions must use in conducting focused and comprehensive audits.
Agency Affected: Department of Labor
Status: Open
Comments: OSHA's current field audit directive establishes performance requirements for the frequency and scope of audits. The Directorate of Evaluation and Analysis has also developed and made available as a resource for Regional Audit Coordinators a sample checklist containing questions that apply to the various programs carried out by OSHA field offices with references to OSHA directives specifying procedures to be followed in executing those programs. OSHA will revise the field audit directive to further clarify and establish specific criteria that regions must use in conducting focused and comprehensive field audits. As of June 2010, OSHA had made minor modifications to its field audit directive, but none of the changes were responsive to our recommendations. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: In order to ensure the quality and consistency of the whistleblower program and to ensure that OSHA has reliable information to use to monitor the program, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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.
Agency Affected: Department of Labor
Status: Open
Comments: The deployment of the redesign of OSHA's Integrated Management Information System (IMIS) system will require training for users. OSHA's Directorate of Enforcement Programs will use this opportunity to retrain users on the correct entry of dates into the system. The correct entry of data will also be emphasized in any new publications, such as manuals, in the Whistleblower Protection Program. In addition, the Directorate is developing a new quality control program that will require triennial review of a statistically significant sample of each region's case files by the Office of the Whistleblower Protection Program. As of June 2010, no additional action had been taken. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: In order to ensure the quality and consistency of the whistleblower program and to ensure that OSHA has reliable information to use to monitor the program, the Secretary of Labor should direct the Assistant Secretary of OSHA to 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.
Agency Affected: Department of Labor
Status: Open
Comments: OSHA's new information system, OSHA Information System (OIS), is scheduled to be operational by the end of 2010 and will house the data for most of the agency's programs, including the whistleblower program. The new system is designed to enable whistleblower program staff to enter screen outs and their accompanying reasons, and retrieval and report creation will be an easier task than it is today. In the interim, the Directorate of Enforcement Programs has been working with the Directorate of Information Technology to modify the existing Integrated Management Information System to allow the tracking of screened-out cases. The redesign is currently being tested, and OSHA expects it to be operational soon. As of June 2010, the system was not yet operational. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.
Recommendation: The Secretary of Labor should direct the ARB to 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.
Agency Affected: Department of Labor
Status: Open
Comments: The Department of Labor's Administrative Review Board (ARB) acknowledged that there is room for improvement in the accuracy of its case tracking system (CTS). It noted that data omissions in the system resulted from staffing changes and restructuring of the ARB docketing process. ARB reports it addressed this deficiency through additional training and took additional steps to improve the accuracy and completeness of data recorded in CTS. ARB reported that this recommendation may have significant resource implications that must be balanced against other critical program priorities. Given its small caseload over the past 5 years, ranging from 124-183 new appeals each year and 133-168 closed appeals each year, the cost effectiveness of an independent review of CTS is questionable. ARB believes that improved data reliability can be, and has been obtained through continuing in-house efforts to improve the accuracy and utility of the CTS and case records. The Department of Labor did not provide GAO an update on this recommendation in fiscal year 2011.