GAO report: OSHA failing to protect whistleblowers
By Lisa Rein, Washington Post Staff Writer, Tuesday, September 21, 2010; 10:47 PM
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The federal agency responsible for worker safety and other protections for tens of millions of Americans has failed for decades to establish a system to shield whistleblowers from retaliation from their employers, according to government auditors.

The Government Accountability Office's report criticizes the Labor Department's Occupational Safety and Health Administration for "ineffective" whistleblower protections that have persisted 20 years after auditors first reported weaknesses.

The stakes have only grown for workers and the public over the last decade, as OSHA - created to ensure safe and healthy working conditions for employees - has expanded its mission. The agency is now charged with enforcing 18 whistleblower laws, covering private employers in the areas of nuclear power, transportation, securities, consumer product safety and the environment.

"For over 20 years, we have repeatedly found that [the agency] lacks sufficient internal controls to ensure that standards for investigating whistleblower complaints are consistently followed," the 46-page GAO report, released last week, concludes.

Auditors described "significant internal control problems" in the whistleblower protection program, adding, "The problems appear systemic, and sustained management attention is needed to address them."

Workers who report on waste, fraud or other prohibited or unlawful practices in the workplace can play a crucial role in making sure federal laws are enforced. But whistleblowers risk reprisals from their employers, including demotion, reassignment and firing, auditors said. Federal laws establish a process for workers who believe they have faced retaliation to report their concerns to investigators.

As President Obama took office in January 2009, auditors conducting one in a long line of reviews of the whistleblower program reported that OSHA investigative teams were short-staffed and lacked adequate training and resources to do their jobs. The investigators also had insufficient oversight by superiors to ensure that complaints were properly investigated. The GAO recommended changes to address the problems.

When auditors returned a year later, most of the problems remained. While some regional offices took whistleblower complaints more seriously than others, many investigators still lacked formal training. The agency's national headquarters lacked accurate files and data to ensure that a case brought to regional office was investigated.

The program is also not routinely audited, and audits that were performed "lacked independence," auditors found.

OSHA has hired 25 new investigators this year, but the process of assigning them to regional offices was "not transparent" - some areas of the country are underrepresented, with a high number of complaints awaiting investigation. Money for the whistleblower program is often not tracked separately from OSHA's general budget, auditors found.

Asked Tuesday why the problems have lingered for two decades, OSHA spokesman Jason Surbey cited a "lack of resources" and said the agency is conducting a "top to bottom" review of the whistleblower program - even though numerous reviews have been done over the years.

"The agency is working hard to ensure that whistleblowers are protected from retaliation," Surbey said in a statement. "The objective is to identify any weaknesses and inefficiencies in the program and improve the ways it conducts this very important activity."

OSHA's director, David Michaels, has been on the job just nine months.

The GAO report comes as efforts heat up in Congress to strengthen whistleblower protections across government. The House has twice passed legislation that would give federal employees the right to sue agencies that retaliate against them for exposing improper actions or policies. Opposition in the Senate to applying such a provision to national security workers is under negotiation.

The new financial regulatory law contains a provision offering cash rewards to individuals who report violations of securities law, while the new health-care law offers protections to caregivers or medical staff who challenge breakdowns in patient safety or denials of coverage by insurance companies.

The Center for Public Integrity reported in July that since 2002, when Congress passed the Sarbanes-Oxley corporate reform law, the Labor Department tossed out 1,066 whistleblower claims of corporate fraud and upheld 25 claims. Michaels said then that he had ordered a review of the agency's handling of those cases and other whistleblower statutes.

"OSHA failed to deliver on nearly all the commitments made by the Obama administration for so many corporate whistleblowers," said Tom Devine, a whistleblower advocate and legal director of the Government Accountability Project. "We hope the (report) will be a healthy wind at the back of those toiling inside the agency."

Whistleblower Retaliation and Wrongful Termination 05/25/2009
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3 Comment(s)

Few issues are more upsetting to an employer - especially to the manager who feels very powerful and who has been engaging in unlawful or unethical practices for a while, than an employee who is trying to change his ways, especially if that employee threatens to or actually reports the conduct to the outside public agency. Whistleblower retaliation is a claim that arises when the employer takes adverse action against an employee (including termination, transfer to a less desirable position, suspension, and demotion) because that employee complained to the outside entity about what he reasonable believed to be an unlawful practice by his employer.

One significant power of whistleblower retaliation claims in California is that the aggrieved employee does not how to prove that the conduct he or she reported was actually illegal. All the employee has to show is that he reasonably believed that the conduct was illegal. Thus, for instance, if you are an accounting manager, and after reviewing the statements of the company you believe that an comingling of funds or embezzlement is going on at your company, and you report that conduct to the entity overseeing the integrity of financials, you are protected from retaliation, as your position allows you to reasonable conclude within the scope of your skills, knowledge and job duties, that an unlawful practice is taking place. If your employer retaliates against you by terminating your after reporting that conduct and later proves that the conduct you were worried about is perfectly lawful, the employer will still be liable for unlawful retaliation and wrongful termination.

Comments

gabriel hardy

Tue, 08 Dec 2009 12:30:31

Was fired yesterday over the phone from d.a.v. I reported to the mngr about not getting breaks and the kitchen has cockroaches. I was fired for the said reason I talk on the phone excessively

Robert Stein

Wed, 26 May 2010 10:56:29

The Silencing of “Honesty and Transparency”
The endangered species (whistleblower) as discussed by Congress have the ability to do away with just about all the financial wrongdoing that is currently “allowed” by officials in the government and in non-profits. We all know who pays for this. Sunlight (media exposure) will lead the way, as to putting an end to the corruption. The current laws designed to protect those that do the right thing are just empty political words, and in need of proper investigation and enforcement when incidents are reported, and nothing is done—worth repeating…and nothing is done.
The problem occurs when those that are willing to bring the corruption and lies to light are threatened or met with planned retaliation and false reasons as to termination of employment, while nary a single word of the wrongdoing can be denied by officials. The fear of reprisal (job security) has replaced freedom of speech on the campus of C.S.I. The truth is long overdue. “False reporting numbers” to grab the brass ring we call the taxpayer dollars $$$ is the new game played…and allowed by the administration. And if there is truth to the “NO Hire” list as reported in parentadvocates.org—I think we should listen to both sides of the story when it comes to the (mis)use and lies... in regard our tax dollar expenditures.
My case may never get to court, and as to why…it will step on too many toes and force government and non profits to understand and adhere to those two feared words… honesty and transparency. It all start in Albany…definitely in Albany, and works its way onto every taxpayer-funded CUNY/SUNY campus in the State, not just C.S.I., and when made public, the taxpayer will no longer have to pay for no- shows, fudged numbers, fudged time sheets, and wasteful spending. Academia/ Government “partnerships” on campus will have to be held accountable for their actions, limited work ethics, “fudged” time sheets and false accomplishment “numbers,” just like the private sector. These “taxpayer funded” organizations MUST, as in MUST silence the truth, thus enabling them to continue to milk their taxpayer cash-cow funding. Freedom of speech, honesty, and accountability are desperately needed to replace the fear to speak, threats, ego, lies, personal greed and my favorite—condescending remarks. I am sure our Chancellor’s both past and present will agree as to what is “relative” to my case, and why it must be kept quiet.
Let’s see—within a short time, roughly 2 million spent on doubled-up false numbers, raises—(some higher than usual,) questionable business vouchers that lacked business, fudged time sheets, no-show allowed work ethics that are well documented in this one small-staffed campus office, (sure hope this is an isolated case,) and we then add threats along with condescending remarks with “college approval” that disregarded the fraud and fully approve the retaliation plan to hush it up, as the “new way” of doing business. I am not surprised that C.S.I. lost a recent freedom of speech case in court.
Many at the top from President, To The Head of Grants and Research, to The Provost, and the Head of Finance have already been asked to leave, “retired,” or have stepped down from their posts on this political campus. When it comes to the taxpayer’s money, we better understand the meaning of the two words “honesty and transparency.” And as to why a Director originally resigned……….or the musical chair rotating heads at The S.B.A. or E.D.C.—time for the reasons.
Parentadvocates.org is an eye opener with “Opening the Door to NYC Education Corruption Part1: Update on Retaliation of All Whistleblowers.” And their story review “Retaliation against All Whistleblowers is the Name of the Illegal Game in New York City,” is reality. Thank you Parent Advocates.org. , and as you discuss the media and the “educational advertising $$$$ and political favors they stand to lose if these incidents are reported…heck, I thought it was my Director’s relatives on the staff at the local paper and college associates that influenced his decision to unretire and why the paper won’t look into both sides of the story…silly me.
The difficulty in finding legal representation that will not be a conflict of their interests with their “college employers,” and the government investigators who are supposed to look into these case, truly never do; but I have file numbers from several of them in regards to my case, and still waiting. The “Guilty” should be personally responsible or having to pay their fair share of the financial expenses and judgment if reta


Pat

Tue, 17 Aug 2010 05:08:31

Wondering how effective whistle blower retaliation laws are, and whether or not they are commonly ignored.

If found to be effective, they should be extended to state and federal government and ethics complaints as well as to every professional code of ethics - as a rule of freedom of speech and to prevent endangerment for dissent.