Katz, Marshall & Banks partner Matthew S. Stiff published an article in Law360 on October 9, 2015, entitled “The State Of DOL's Whistleblower Protection Program.” The article discusses the report issued on September 30, 2015, by the Department of Labor’s Office of the Inspector General regarding the audit it performed of the Occupational Safety and Health Administration’s whistleblower protection program. Although the audit was clear that OSHA had made significant strides in the administration of its whistleblower protection program, there remained many issues yet to be resolved.
Law360, New York (October 9, 2015, 8:43 AM ET) --
Having been charged by Congress with protecting whistleblowers from unlawful retaliation, there can be no doubt that the U.S. Department of Labor shoulders a heavy burden. A recent report by the DOL Office of Inspector General indicates that the DOL has still not shown itself equal to this task. But it is also undeniable that the DOL’s protection of whistleblowers has improved dramatically in recent years. And while substantial room for progress remains, the DOL’s shortcomings are largely due to insufficient resources, not to a lack of commitment to whistleblowers.
The DOL holds responsibility for enforcing federal whistleblower protections in a wide array of industries, including the financial, nuclear, airline, environmental, food safety, consumer products, trucking and railroad industries. The DOL’s portfolio of whistleblower protection provisions began to expand beginning in 1983, with the DOL now responsible for 22 different federal whistleblower protection provisions. The DOL delegated responsibility for investigating these complaints to the Occupational Safety and Health Administration, which conducts whistleblower investigations through its Whistleblower Protection Programs Directorate. With more than 7,400 whistleblower complaints filed with OSHA in fiscal year 2014, the responsibility is a significant one.
Historically, OSHA’s superficial investigations of whistleblower complaints left a great deal to be desired and resulted in precious few findings for whistleblowers. It was for this reason that the DOL OIG conducted an audit of OSHA’s whistleblower investigation program in 2010. The DOL OIG’s report from that inquiry — titled “Complainants Did Not Always Receive Appropriate Investigations under the Whistleblower Protection Program” — took strong exception with OSHA’s lackluster record of protecting whistleblowers. The DOL OIG made numerous recommendations to OSHA that sought to overhaul the agency’s enforcement of federal whistleblower protection statutes.
Nearly half a decade later, the DOL OIG revisited OSHA’s handling of whistleblower complaints and issued a new investigatory report, titled “OSHA Needs to Continue to Strengthen Its Whistleblower Protection Programs.” Released to the public on Sept. 30, 2015, the DOL OIG report concluded that OSHA had made significant strides in improving its administration of whistleblower protection programs. At the same time, the DOL OIG identified numerous areas in which OSHA could improve its performance and underscored four categories of concern.
First, the DOL OIG took issue with the sufficiency of OSHA’s investigation of whistleblower complaints. These criticisms focused primarily on the agency’s compliance with the OSHA Whistleblower Investigations Manual, which OSHA investigators are required to follow when conducting investigations. The Whistleblower Investigations Manual in turn sets forth seven essential investigatory elements to satisfy before OSHA can complete its investigation of a whistleblower’s complaint. The DOL OIG previously examined OSHA’s compliance with these seven elements in 2010, finding that a shocking 80 percent of OSHA reviews did not meet all seven essential elements. According to the DOL OIG’s 2015 report, OSHA has demonstrated significant improvement on this front, with only 18 percent of sampled reviews now failing to satisfy the seven essential elements. Notwithstanding this substantial improvement, the DOL OIG emphasized the need for OSHA to correct the remaining 18 percent of incomplete reviews. The DOL OIG also admonished OSHA’s regional offices for their failure to conduct comprehensive, onsite self-reviews required every four years.
Second, the DOL OIG faulted OSHA for not updating the Whistleblower Investigations Manual to reflect the agency’s evolving priorities and most recent program updates. While noting that OSHA had recently added a chapter to the manual on remedies and settlement, the DOL OIG disapproved of OSHA’s failure to update the document in more than four years. According to the DOL OIG, OSHA’s out-of-date manual had injected inconsistencies into the regional handling of whistleblower investigations. The DOL OIG also questioned OSHA’s failure to ensure that the manual outlined specific investigatory requirements for the five most recently enacted federal whistleblower protection provisions, which had come under OSHA’s jurisdiction in the years since the last manual update in 2011. The DOL OIG further determined that, while OSHA had recently promulgated policies to simplify investigatory approaches, the agency had not educated investigators on when and how to use those simplified procedures. Relatedly, the DOL OIG questioned OSHA’s failure to create adequate training programs for investigators, as OSHA investigators reported to the DOL OIG that the current training modules were inadequate.
Third, the DOL OIG knocked OSHA for failing to investigate whistleblower retaliation complaints in a timely manner. According to the DOL OIG report, OSHA did not complete 72 percent of its investigations within statutorily prescribed periods of time, with the agency having missed those deadlines by an average of 163 days. The DOL OIG also asserted that OSHA’s failure to satisfy those deadlines had become far more egregious since the DOL OIG’s initial review in 2010. The DOL OIG attributed these troubling delays to OSHA’s failure to timely assign cases to investigators and the agency’s reluctance to prioritize timeliness in its investigations.
Fourth, the DOL OIG found that OSHA had routinely failed to communicate a whistleblower’s allegations to external federal agencies, even though those external agencies share responsibility with the DOL for investigating the employer’s misconduct. The DOL OIG attributed those delays to the absence of a mandatory and formal OSHA process for communicating the substance of a whistleblower’s allegations to external agencies. By way of example, the DOL OIG claims that the U.S. Department of Transportation had not received 32 percent of transportation-related OSHA complaints in a timely manner. The DOL OIG opined that OSHA’s failure to communicate whistleblower allegations to external agencies frustrated Congress’ desire for agencies to coordinate efforts and address any potential misconduct.
Having reached these conclusions, the DOL OIG provided OSHA with seven recommendations for improving the agency’s administration of whistleblower investigations. These recommendations contemplate that OSHA will:
- Implement routine monitoring to assess the efficiency and effectiveness of whistleblower protection programs and oversee the extent to which investigators complete steps and collect documentation to support investigatory determinations;
- Develop and oversee performance metrics to ensure that whistleblower programs are functioning as Congress intended;
- Provide complete guidance to OSHA investigators and ensure that those investigators employ appropriate methods to close out whistleblower investigations;
- Update the agency’s Whistleblower Investigations Manual and implement proper controls to better guarantee that the manual reflects OSHA’s current policies, procedures and whistleblower statutes;
- Develop and provide comprehensive training that will allow OSHA investigators to cultivate skills, knowledge and understanding of program requirements and goals;
- Develop and initiate a process to ensure that OSHA strikes a reasonable balance between the quality and timeliness of completed investigations; and
- Develop and implement relationships with external agencies to ensure that a whistleblower’s allegations are shared among interested parties in a timely manner.
After reviewing a draft investigatory report, OSHA leadership agreed with the DOL OIG’s recommendations and acknowledged that the agency could and would do more to strengthen OSHA’s whistleblower protection program. OSHA nevertheless took issue with some of the data on which the DOL OIG relied to reach its conclusions, as well as the metrics the DOL OIG utilized to decide whether OSHA had timely shared information with external agencies.
Whistleblower advocates would readily agree that OSHA has in recent years made improvements to the agency’s enforcement of whistleblower protection provisions. Whereas most OSHA investigators once took a decidedly pro-management bent at each stage of an investigation, investigators are now far more willing to conduct robust and evenhanded investigations that give whistleblowers a better chance at prevailing. It is now OSHA policy that investigators are to share employer position statements with a whistleblower for his or her review and rebuttal, which can allow OSHA to better probe the pretextual nature of an employer’s stated termination reason. In addition, OSHA investigators in recent years have made more efforts to reach out to witnesses, request relevant documents from an employer, encourage dialogue between the parties designed to resolve matters at early stage of the dispute, and adhere to the pro-whistleblower jurisprudence of the DOL’s Administrative Review Board in examining the elements of a whistleblower claim.
OSHA’s protection of whistleblowers is not without its flaws, however. More troubling are the increasingly significant delays in OSHA’s execution of whistleblower investigations, which severely undermine the agency’s ability to timely gather relevant evidence. It is not uncommon for OSHA investigators to claim these days that they are nearly two years behind schedule as a consequence of their whistleblower case backlogs. This delay is exacerbated by the influx of retaliation complaints attributable to the recent passage of new whistleblower protection statutes, the enactment of pro-whistleblower amendments to existing statutes, and the steady flow of pro-whistleblower jurisprudence that expands workers’ rights to bring claims. At its core, many of the problems in OSHA’s administration of the whistleblower protection program would be remedied if the agency received additional funding to hire more investigators, attorneys and support staff. But with Congress extremely unlikely to provide that funding, OSHA will almost certainly struggle to implement the DOL OIG’s most recent set of recommendations and relieve the considerable backlog of whistleblower complaints.
—By Matthew S. Stiff, Katz Marshall & Banks LLP
Matthew Stiff is a partner in Katz Marshall & Banks' Washington, D.C., office.
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