On 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.
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 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.
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.