Department of Energy:

Whistleblower Protections Need Strengthening

GAO-16-618: Published: Jul 11, 2016. Publicly Released: Jul 14, 2016.

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What GAO Found

The Department of Energy (DOE) has used a combination of independent reviews and contractor self-assessments to evaluate the openness of the environment for raising safety and other concerns. The independent reviews, which were methodologically sound and consistently applied, revealed problems with the environment for raising concerns. In contrast, many self-assessments used flawed and inconsistent methodologies and overstated the openness of the environment. For example, self-assessment survey response rates were as low as about 5 percent and were not sufficient for drawing conclusions. Contractor officials told GAO that the low response rates, in some cases, reflect a concern about anonymity. Nonetheless, additional independent assessments are not planned. Instead, DOE plans to provide voluntary guidance to contractors and rely on them to conduct evaluations and take appropriate action in response to results. Consequently, DOE cannot judge the openness of its environment or ensure that appropriate action is taken in response to evaluation results.

Several factors may limit the use and effectiveness of mechanisms for contractor employees to raise concerns and seek whistleblower protections. For example, contractor employees seeking a remedy for alleged retaliation may find DOE's whistleblower program difficult to navigate without legal assistance because it includes filing motions and appeals and arguing before an administrative judge. One case GAO examined was dismissed because the complaint was too vague. On appeal, more specific information was provided but was considered a recharacterization of events and the appeal was denied. A new statutory whistleblower pilot program available to DOE and other government contractors may mitigate some of these challenges. Under the pilot program, DOE's Office of Inspector General investigates alleged retaliation, and officials with this office told GAO that legal assistance would not be necessary. The pilot program expires in January 2017, however, and DOE has not evaluated the extent of its implementation or whether it might mitigate challenges of the existing program.

DOE has infrequently used its enforcement authority to hold contractors accountable for unlawful retaliation, issuing two violation notices in the past 20 years. Additionally, in 2013, in response to proposed revisions to its enforcement guidance, DOE determined that it does not have the authority to enforce a key aspect of policies that prohibit retaliation for nuclear safety-related issues—despite having taken such enforcement actions previously. In May 2016, DOE announced tentative plans to issue regulations to resolve this issue. Also, DOE has taken limited or no action to hold contactors accountable for creating a chilled work environment—in part because DOE has not clearly defined what constitutes evidence of a chilled work environment or the steps needed to hold contractors accountable. DOE officials provided GAO with examples where (1) little or nothing was done in response to intimidation of contractor employees who report safety and other concerns; (2) a subcontractor was terminated after reporting safety concerns; and (3) a contractor employee was terminated allegedly because she cooperated with GAO. DOE's reluctance to hold contractors accountable may diminish contractor employee confidence in mechanisms for raising concerns and seeking whistleblower protection.

Why GAO Did This Study

DOE relies on contractors to manage and operate its facilities and perform its missions. Under federal laws, regulations, and DOE policies, contractors generally must maintain an open environment for raising safety or other concerns without fear of reprisal.

GAO was asked to examine whether the culture at DOE allows contractor employees to raise concerns without fear of reprisal. This report examines (1) DOE's efforts to evaluate the environment for raising concerns and what these evaluations revealed, (2) factors that may limit the use and effectiveness of mechanisms for raising concerns or seeking whistleblower protections, and (3) the extent to which DOE holds contractors accountable for unlawful retaliation and creating a chilled work environment. GAO reviewed DOE's safety culture assessments, analyzed 87 DOE whistleblower case files, and interviewed DOE officials at 10 of its largest sites and headquarters.

What GAO Recommends

GAO is making six recommendations, including that DOE conduct independent assessments of the environment for raising concerns, evaluate whether the whistleblower pilot program will mitigate challenges with the existing program, expedite timeframes for clarifying regulations, and clarify policies to hold contractors accountable. DOE agreed with five recommendations. It did not concur with the sixth, but outlined steps it would take that are consistent with an aspect of the recommendation. GAO continues to believe the recommendation should be fully implemented.

For more information, contact David C. Trimble at (202) 512-3841 or trimbled@gao.gov.

Recommendations for Executive Action

  1. Status: Open

    Comments: DOE concurred with the recommendation. DOE has developed a plan to analyze tools utilized by site contractors to determine the viability of using the data to monitor the influence of work environment on employees' willingness to raise safety concerns. As of March 2019, DOE had completed assessments of safety culture sustainment tools at several sites and plans to complete its assessments and issue a report documenting overall results by the end of calendar year 2019.

    Recommendation: To improve DOE's ability to evaluate and monitor the effectiveness of policies that call for all organizations, including contractors, to embrace a strong safety culture and create a work environment that encourages a questioning attitude by all employees, the Secretary of Energy should develop and implement an independent evaluation process for routinely and accurately measuring contractor employees' willingness to raise safety and other concerns without fear of retaliation. This process should ensure that an independent third party develops, conducts, and consistently applies the evaluation methodology--which should include safeguards that protect anonymity. The process should also enable DOE to oversee and ensure that appropriate corrective actions are taken in response to evaluation results.

    Agency Affected: Department of Energy

  2. Status: Open

    Comments: DOE concurred with the recommendation. DOE issued its revised order on the employee concerns program (ECP) in January 2019. However, that order did not address all three issues raised in our recommendation. Specifically, the order states that it is a best practice for contractor ECP managers to report to a designated executive in the contractor management chain, but does not include information on concerns of independence. Additionally, there is instruction that ECP managers must assess programs and how often, but there is not specific criteria for overseeing and evaluating effectiveness or independence. We are continuing to discuss these issues with DOE officials.

    Recommendation: To help ensure that the organizational placement and practices of DOE- and contractor- provided Employee Concerns Programs (ECP) do not inhibit contractor employees from raising safety and other concerns, the Secretary of Energy should revise DOE's ECP order and guidance to (1) require that the organizational placement and practices of contractor ECP's do not compromise or impair their independence, (2) clarify the circumstances under which DOE's ECP is permitted to transfer and refer concerns to contractors, and notify or require approval of the contractor employee raising the concern, and (3) provide criteria for overseeing and evaluating the effectiveness and independence of contractor-provided ECPs.

    Agency Affected: Department of Energy

  3. Status: Open

    Comments: DOE concurred in principle with the recommendation. In response, the Office of Hearings and Appeals conducted a review of the Part 708 program that addressed three of the four items identified in the recommendation. We are continuing to work with DOE on whether or how it plans to assess the contractors that have adopted the pilot program and the date they did so.

    Recommendation: To help ensure that Congress has the information it needs as it considers whether or not to make permanent the enhanced whistleblower pilot program and that DOE has assurance that contractor employees have an effective mechanism to seek remedy for unlawful retaliation, the Secretary of Energy should fully evaluate the extent to which the pilot program has been implemented and whether its provisions will mitigate challenges associated with DOE's 708 program. This evaluation should include, at a minimum, an assessment of (1) contractors that have adopted the pilot program and the date they did so; (2) contractors that have not adopted the pilot program and an explanation of why not; (3) cases filed under the pilot program, if any; and (4) the pilot program's potential for mitigating challenges associated with the 708 program.

    Agency Affected: Department of Energy

  4. Status: Closed - Implemented

    Comments: DOE concurred with the recommendation. DOE amended 10 C.F.R. part 820 to clarify that DOE may impose civil penalties against a contractor or subcontractor for violating the prohibition against whistleblower retaliation found in part 708, to the extent the violation concerns nuclear safety. This change was effective in January 2017.

    Recommendation: To help improve DOE's ability to take enforcement action against unlawful retaliation when appropriate and take action against contractors that create a chilled work environment, the Secretary of Energy should expedite the department's time frames for codifying in regulatory language its policy that retaliation for nuclear safety-related disclosures is a nuclear safety violation and develop a specific schedule for issuing the proposed and final rules.

    Agency Affected: Department of Energy

  5. Status: Closed - Implemented

    Comments: DOE's Office of Enforcement has revised its internal implementing procedure--titled Safety and Security Enforcement Investigations--to require that the Director of Enforcement ensure that the department conducts a quarterly review of complaints submitted to the Department of Labor under the Energy Reorganization Act, and of court decisions through an online legal research service, in order to identify cases wherein a DOE contractor may have retaliated against an employee for reporting a safety concern. The guidance also requires that the Director of Enforcement ensure that enforcement staff evaluate these cases for possible enforcement action relating to the retaliation and underlying safety issues.

    Recommendation: To help improve DOE's ability to take enforcement action against unlawful retaliation when appropriate and take action against contractors that create a chilled work environment, the Secretary of Energy should direct DOE's Office of Enforcement to routinely collect information from the Department of Labor and other sources regarding substantiated cases of retaliation and take appropriate enforcement action.

    Agency Affected: Department of Energy

  6. Status: Open

    Priority recommendation

    Comments: DOE concurred with the recommendation. In January 2018, DOE issued a revision to DOE Policy 450.4A. The revised policy states that organizations should foster a culture that allows employees to "feel free to raise safety concerns without fear of retaliation...and supporting a questioning attitude concerning safety by all employees." However, the policy does not define the appropriate steps DOE should take to hold contractors accountable for creating a chilled work environment. We will continue to work with DOE to determine whether they plan to make additional changes to the policy to address our recommendation.

    Recommendation: To help improve DOE's ability to take enforcement action against unlawful retaliation when appropriate and take action against contractors that create a chilled work environment, the Secretary of Energy should revise DOE's Integrated Safety Management policy and guidance to clarify what constitutes evidence of a chilled work environment and define the appropriate steps DOE should take to hold contractors accountable for creating a chilled work environment.

    Agency Affected: Department of Energy

 

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