Whistleblower Protection Program:

Opportunities Exist for OSHA and DOT to Strengthen Collaborative Mechanisms

GAO-14-286: Published: Mar 19, 2014. Publicly Released: Mar 19, 2014.

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What GAO Found

The Occupational Safety and Health Administration (OSHA) has taken steps to include auto industry employees in its Whistleblower Protection Program and has coordinated with the Department of Transportation (DOT) on whistleblower issues, but interagency collaborative mechanisms could be strengthened. Among other steps, OSHA is developing procedures for how it will investigate claims from auto employees and estimates most of its efforts will be completed in 2014. OSHA documents its collaboration with DOT's component agencies on whistleblower protections by developing memorandums of agreements (MOA), and currently MOAs cover aviation and rail employees; the agencies are considering developing MOAs to cover other transportation sectors such as commercial motor-carrier employees. Officials from both OSHA and DOT believe it is important to identify or refer potential claims of retaliation and safety violations to each other. In September 2012, GAO concluded that collaboration is critical when meaningful results that the federal government seeks to achieve require the coordinated efforts of more than one federal agency. Among others, key practices of effective collaboration include clearly delineating roles and responsibilities and monitoring progress. OSHA and DOT officials agree that following GAO's key practices would be beneficial. However, the agencies have an opportunity to strengthen current and future MOAs by clearly delineating roles and responsibilities, and determining how the agencies' efforts will be monitored and evaluated. For example, the current MOAs do not clearly define agency roles and responsibilities with respect to developing training on whistleblower issues and regional coordination. Defining such responsibilities could help ensure beneficial training occurs and the agencies avoid miscommunication and inconsistent whistleblower processes involving referrals between the agencies' regional offices. Additionally, since the agencies have not developed or documented how they would monitor referrals, neither OSHA nor DOT can assess whether the referral process is working as intended. By monitoring and evaluating the outcomes of referrals, the agencies would have more assurance that they are addressing the safety violations and claims of retaliation raised by transportation-related employees.

The number of transportation-related whistleblower claims filed with OSHA has increased in the last 6 years—from 508 in fiscal year 2008 to 821 in fiscal year 2013—and GAO's interviews with transportation industry stakeholders identified several factors that might affect those numbers and how they could be interpreted. These factors include multiple avenues to address safety issues, employee awareness of whistleblower protections, and statutory whistleblower provisions, among others. The identified factors are not mutually exclusive and could either increase or decrease the number of whistleblower claims. For example, officials representing three transportation modes noted that multiple safety-reporting mechanisms, such as anonymous hotlines, can indirectly affect whether employees file whistleblower claims since employees are less likely to face retaliation when reporting safety issues anonymously. Regarding statutory whistleblower provisions, the statute covering rail employees provides the largest number of protected activities, and this protection, according to rail industry officials, has enabled rail employees to file more whistleblower claims than other transportation employees.

Why GAO Did This Study

Transportation workers who “blow the whistle” on prohibited practices can help ensure that their employers comply with federal laws. Within the Department of Labor, OSHA investigates whistleblower claims, filed by transportation employees who believe their employers have retaliated against them for reporting unlawful practices. The Moving Ahead for Progress in the 21st Century Act (MAP-21), required OSHA to establish protections for auto industry employees and required GAO to review OSHA's efforts and transportation-related whistleblower claims. GAO examined (1) steps OSHA has taken to include auto industry employees in its whistleblower program and the extent to which OSHA collaborated with DOT components to address potential safety violations, and (2) the number of transportation-related whistleblower claims in the last 6 years and stakeholder-identified factors that may affect those numbers. GAO compared agency documents against key practices for collaboration, and interviewed federal agency officials and stakeholders representing transportation modes covered by these statutes to identify factors that may affect the number of whistleblower claims reported by OSHA.

What GAO Recommends

OSHA and DOT should evaluate their current and in-process MOAs and incorporate key practices for collaboration. Neither agency agreed or disagreed with the recommendation. OSHA stated that it believes its MOAs incorporate key practices, but GAO continues to believe the MOAs can be strengthened.

For more information, contact Lori Rectanus at (202) 512-2834 or rectanusl@gao.gov.

Recommendations for Executive Action

  1. Status: Closed - Implemented

    Comments: Transportation workers who "blow the whistle" on prohibited practices can help ensure that their employers comply with federal laws. Within the Department of Labor, OSHA investigates whistleblower claims, filed by transportation employees who believe their employers have retaliated against them for reporting unlawful practices. The Moving Ahead for Progress in the 21st Century Act (MAP-21), required OSHA to establish protections for auto industry employees. In March 2014, GAO reported that OSHA's existing Memorandum of Agreements (MOAs) with some DOT components do not incorporate key practices for effective collaboration, including clearly defining roles and responsibilities and monitoring progress. For example, with respect to training and regional coordination between the agencies, it was unclear which agency, OSHA or DOT, would develop or provide training in recognizing alleged discrimination complaints that must be referred to OSHA and how referrals are coordinated between OSHA and DOT's regional offices. Therefore, GAO recommended that OSHA and DOT evaluate their current and in-process MOAs and incorporate key practices for collaboration. In 2015, GAO confirmed that OSHA worked with DOT to improve collaboration including evaluating and finalizing its MOA to cover the anti-retaliation provisions of the Surface Transportation Assistance Act. GAO reviewed the DOT MOA and determined that it incorporated collaboration key practices including clearly delineating roles and responsibilities and monitoring progress. The DOT MOA addressed which agency would provide training and how regional coordination between the agencies would occur to facilitate the exchange of discrimination complaints and referrals. OSHA and DOT determined that due to the low number of complaints that have been filed under MAP-21 to date, both agencies would forgo an MOA but continue to collaborate as questions under MAP-21 arise. As a result, OSHA and DOT have enhanced their collaboration through these efforts and have more assurance that they are addressing the safety violations and claims of retaliation raised by transportation related employees.

    Recommendation: The Secretaries of Labor and Transportation should evaluate their current and in-process MOAs to ensure that the MOAs incorporate key practices for collaboration, such as those practices highlighted in this report.

    Agency Affected: Department of Transportation

  2. Status: Closed - Implemented

    Comments: Transportation workers who "blow the whistle" on prohibited practices can help ensure that their employers comply with federal laws. Within the Department of Labor, OSHA investigates whistleblower claims, filed by transportation employees who believe their employers have retaliated against them for reporting unlawful practices. The Moving Ahead for Progress in the 21st Century Act (MAP-21), required OSHA to establish protections for auto industry employees. In March 2014, GAO reported that OSHA's existing Memorandum of Agreements (MOAs) with some DOT components do not incorporate key practices for effective collaboration, including clearly defining roles and responsibilities and monitoring progress. For example, with respect to training and regional coordination between the agencies, it was unclear which agency, OSHA or DOT, would develop or provide training in recognizing alleged discrimination complaints that must be referred to OSHA and how referrals are coordinated between OSHA and DOT's regional offices. Therefore, GAO recommended that OSHA and DOT evaluate their current and in-process MOAs and incorporate key practices for collaboration. In 2015, GAO confirmed that OSHA worked with DOT to improve collaboration including evaluating and finalizing its MOA to cover the anti-retaliation provisions of the Surface Transportation Assistance Act. GAO reviewed the DOT MOA and determined that it incorporated collaboration key practices including clearly delineating roles and responsibilities and monitoring progress. The DOT MOA addressed which agency would provide training and how regional coordination between the agencies would occur to facilitate the exchange of discrimination complaints and referrals. OSHA and DOT determined that due to the low number of complaints that have been filed under MAP-21 to date, both agencies would forgo an MOA but continue to collaborate as questions under MAP-21 arise. As a result, OSHA and DOT have enhanced their collaboration through these efforts and have more assurance that they are addressing the safety violations and claims of retaliation raised by transportation related employees.

    Recommendation: The Secretaries of Labor and Transportation should evaluate their current and in-process MOAs to ensure that the MOAs incorporate key practices for collaboration, such as those practices highlighted in this report.

    Agency Affected: Department of Labor

 

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