oshaOn September 30, 2015, the U.S. Department of Labor’s Office of the Inspector General (OIG) published the findings of its audit of OSHA’s Whistleblower Protection Programs (Whistleblower Programs).  The audit focused on (1) determining what improvements have been made to the Whistleblower Programs, and (2) what improvements still need to be made.  Though the report identified opportunities for improvement, it shows—when compared against prior reports—that OSHA’s administration of the Whistleblower Programs has improved and is on a positive trajectory. 

OIG’s Findings

While the audit concluded that OSHA had improved the administration of its Whistleblower Programs—which spans 22 whistleblower statutes, the basic provisions of which are administered by 9 different federal agencies—it also found numerous areas where continued improvement is needed.  More specifically, the audit determined that:

  • Guidance provided by OSHA for investigating whistleblower claims was insufficient, in that OSHA did not ensure that the Whistleblower Manual reflected the most recent program updates and the agency’s changing priorities.  This created inconsistencies in how regions conducted investigations and may have impacted the quality of those investigations;
  • Standardized training provided to investigators did not sufficiently focus on investigator training needs and priorities.  The absence of an official training directive for Whistleblower Programs combined with the complex statutes, policies and procedures created an environment where training was lacking and often contradictory;
  • 72% percent of investigations were not timely performed, and the untimely investigations exceeded statutory timeframes by an average of 163 days;
  • OSHA did not adequately and timely communicate the violations alleged by whistleblowers internally to OSHA’s enforcement units or externally to other federal agencies with jurisdiction to investigate the allegation; and
  • OSHA did not implement performance measures for the Whistleblower Programs as it had to in response to recommendations from the prior OIG report.

OIG’s Recommendations

OIG provided a number of recommendations on how OSHA could improve its Whistleblower Programs, including:

  • monitoring of Whistleblower Programs to routinely assess their efficiency and effectiveness;
  • developing specific performance measures to ensure Whistleblower Programs are working as intended;
  • providing complete and unified guidance to ensure appropriate methods are used to close investigations;
  • issuing an updated investigations manual;
  • developing and providing comprehensive training to investigators;
  • developing and implementing a process to ensure reasonable balance is applied between the quality and timeliness to complete investigations within statutory timeframes; and
  • developing and implementing a formal process with other agencies to ensure information is shared in a timely manner to assist in the enforcement of various statues and correction of violations.

Implications

Although OIG noted a number of opportunities for improvement, it is important to recognize and appreciate the improvements that have been made over the last few years.  For example, in 2010 the OIG found that approximately 80% of whistleblower investigations did not meet one or more of the 8 elements identified in OSHA’s Whistleblower Manual as essential to the investigative process.  The 2015 report showed a substantial improvement:  the number of investigations not meeting all essential elements decreased to 18%.  Also, it is likely that  OSHA will conduct speedier investigations as a result of this audit report.

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Photo of Steven J. Pearlman Steven J. Pearlman

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular…

Steven J. Pearlman is a partner in the Labor & Employment Law Department and Co-Head of the Whistleblowing & Retaliation Group and the Restrictive Covenants, Trade Secrets & Unfair Competition Group.

Steven’s practice covers the full spectrum of employment law, with a particular focus on defending companies against claims of employment discrimination, retaliation and harassment; whistleblower retaliation; restrictive covenant violations; theft of trade secrets; and wage-and-hour violations. He has successfully tried cases in multiple jurisdictions, and defended one of the largest Illinois-only class actions in the history of the U.S. District Court for the Northern District of Illinois. He also secured one of only a few ex parte seizures orders that have been issued under the Defend Trade Secrets Act, and obtained a world-wide injunction in federal litigation against a high-level executive who jumped ship to a competitor.

Reporting to boards of directors, their audit committees, CEOs and in-house counsel, Steven conducts sensitive investigations and has testified in federal court. His investigations have involved complaints of sexual harassment involving C-suite officers; systemic violations of employment laws and company policies; and fraud, compliance failures and unethical conduct.

Steven was recognized as Lawyer of the Year for Chicago Labor & Employment Litigation in the 2023 edition of The Best Lawyers in America. He is a Fellow of the College of Labor and Employment Lawyers.  Chambers describes Steven as an “outstanding lawyer” who is “very sharp and very responsive,” a “strong advocate,” and an “expert in his field.” Steven was 1 of 12 individuals selected by Compliance Week as a “Top Mind.” Earlier in his career, he was 1 of 5 U.S. lawyers selected by Law360 as a “Rising Star Under 40” in the area of employment law and 1 of “40 Illinois Attorneys Under Forty to Watch” selected by Law Bulletin Publishing Company. Steven is a Burton Award Winner (U.S. Library of Congress) for “Distinguished Legal Writing.”

Steven has served on Law360’s Employment Editorial Advisory Board and is a Contributor to Forbes.com. He has appeared on Bloomberg News (television and radio) and Yahoo! Finance, and is regularly quoted in leading publications such as The Wall Street Journal.

The U.S. Chamber of Commerce has engaged Steven to serve as lead counsel on amicus briefs to the U.S. Supreme Court and federal circuit courts of appeal. He was appointed to serve as a Special Assistant Attorney General for the State of Illinois in employment litigation matters. He has presented with the Solicitor of the DOL, the Acting Chair of the EEOC, an EEOC Commissioner, Legal Counsel to the EEOC and heads of the SEC, CFTC and OSHA whistleblower programs. He is also a member of the Sedona Conference, focusing on trade secret matters.

Photo of Edward Young Edward Young

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all…

Edward “Eddie” C. Young is a senior counsel in the Labor & Employment Law Department and a member of the following Firm practice groups: Restrictive Covenants & Trade Secrets; Discrimination, Harassment & Title VII; and Whistleblowing & Retaliation.

Eddie represents employers in all aspects of employment law, with a concentration on litigating complex employment disputes of all types before federal and state courts throughout the country, the U.S. Equal Employment Opportunity Commission, state and local human rights commissions and arbitral tribunals (e.g., FINRA and AAA).  In particular, Eddie has successfully litigated employment-related disputes alleging breach of non-compete agreements, theft of trade secrets, discrimination, sexual harassment, whistleblower retaliation, wage and hour violations, including employee misclassification claims, breach of contract, defamation, fraud and other business-related torts.  Eddie has obtained a world-wide injunction to enforce a client’s non-competition restriction on a former executive, successfully defended a client through summary judgment and appeal against retaliation claims brought by a former General Counsel, represented Fortune 500 companies in defense of high-profile harassment claims associated with the #metoo movement, and provided representation to several professional sports leagues.  He also has significant appellate experience, including successfully representing clients before the U.S. Circuit Court of Appeals for the First, Second and Seventh Circuits, as well as before the United States Supreme Court.  Eddie often draws on his litigation experience to help clients avoid the courtroom by effectuating positive change in the workplace through impactful training, counseling and developing robust employment policies.

Working in a wide range of industries, Eddie represented clients in food services, financial services, medical devices, telecommunications, higher education, sports, retail, real estate and others.

Eddie has been recognized as “One to Watch” by Best Lawyers in America since 2021 and as a “Rising Star” by Super Lawyers since 2017. He also regularly advises clients, writes and speaks on cutting-edge legal issues, including the use of Artificial Intelligence in the workplace, and legal issues arising from the collection and use of employee biometric information.

Eddie maintains an active pro bono practice, including on-going representation of a certified class of approximately 65,000 visually disabled Chicagoans in litigation challenging the City’s lack of accessible pedestrian crosswalks.  Eddie is also a member of the Firm’s Pro-Bono Committee and is a three-time recipient of the Firm’s “Golden Gavel” award for his significant pro bono contributions.

Prior to joining Proskauer, Eddie was a cum laude graduate from Loyola University Chicago School of Law. He also obtained a Master’s Degree in Human Resources and Industrial Relations from Loyola University Chicago Graduate School of Business. He began his practice at a national management-side employment law firm, and has also worked in the corporate human resources department of a national tax consulting firm and as a Fellow with the Illinois Human Rights Commission.