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GAO: Whistleblower Program Still Needs More Work

Melissa Klein Aguilar | September 20, 2010

The agency tasked with ensuring whistleblowers who report workplace misconduct are protected from retaliation still has plenty of room for improvement in meeting that mission, according to a government watchdog.

The Occupational Safety and Health Administration needs to take several steps to shore up its Whistleblower Protection Program, including ensuring it investigators have the necessary training and equipment and establishing an audit program to provide accountability.

So says a critical Government Accountability Office report, which concludes that OSHA "has done little to ensure that investigators have the necessary training and equipment to do their jobs, and ... lacks sufficient internal controls to ensure that the whistleblower program operates as intended."

OSHA has responsibility for investigating whistleblower complaints under 19 different statutes, including Sarbanes-Oxley. About two-thirds of complaints arise under the Occupational Safety and Health Act.

According to the report, "Whistleblower Protection: Sustained Management Attention Needed to Address Long-standing Program Weaknesses," OSHA enhanced its whistleblower training, but hasn't ensured attendance or taken steps to ensure that investigators have necessary equipment to do their jobs. OSHA officials also haven't implemented a prior recommendation to establish minimum equipment and software standards, citing resource constraints. The GAO also said OSHA lacks sufficient internal controls to ensure the program operates as intended due to several factors, including inconsistent program operations, inadequate tracking of program expenses, and insufficient performance monitoring.

The criticism of the program comes just as Congress has moved to encourage more whistleblowing under the Dodd-Frank Act by creating a program to reward whistleblowers who report securities law violations to the Securities and Exchange Commission and shoring up existing whistleblower protections under SOX and other statutes.

OSHA lacks effective mechanisms to hold regions accountable for compliance with program policies; doesn't track whistleblower program resources; and hasn't made assessing program performance a priority, according to the report.

Among other things, the GAO noted that the whistleblower program's national office lacks the mechanisms, such as access to accurate data and actual case files, to ensure regional compliance with program policies and procedures.

Investigators also said OSHA's audit program remains ineffective. While OSHA has made minor changes to bring its audit program in line with government standards, the report said the steps taken haven't fully addressed prior GAO recommendations.

In the report, the GAO recommended several actions to improve program performance and oversight, including:

  • Ensuring that all investigators complete mandatory training;
  • Requiring staff who supervise investigators to complete the mandatory investigator training;
  • Tracking whistleblower program expenses separately from other OSHA programs and reporting them annually to Congress;
  • Developing an action plan, with specific milestones, for addressing identified internal control weaknesses, including mechanisms for strengthening the whistleblower national office's control over the program and
  • Incorporating strategic goals specifically for the whistleblower program into Labor's strategic plan, and developing performance measures to track progress in achieving those goals.

The latest report follows previous reports that have been critical of the agency's oversight of the program. In past reports, the GAO has said OSHA has focused too little attention on the program, struggled to provide investigators with the skills and resources needed to do their jobs effectively, and focused too little attention on developing internal controls to ensure that criteria and standards for investigating complaints are consistently followed.

In a statement in response the report, OSHA Assistant Secretary of Labor David Michaels said the agency is "in the process of a top-to-bottom review of OSHA's whistleblower protection program" to identify weaknesses and inefficiencies. The review will cover policy, resources, equipment, and work processes.

He said OSHA has already begun taking action on items recommended in the report, such as requiring all investigators and supervisors to complete mandatory training over the next 18 months, setting strategic goals and performance measures for the program, and providing new equipment to field staff. He also noted that the agency has hired additional personnel in the past year in an effort to more efficiently process cases. The agency is still studying the other GAO recommendations.