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Whistleblower program to undergo changes

October 1, 2011

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By Ashley Johnson, associate editor

OSHA’s Whistleblower Protection Program will report directly to agency administrator David Michaels instead of the Directorate of Enforcement as part of several changes the agency announced Aug. 1.

The reforms, which also include a national training conference for federal and state investigators, are aimed at improving the program in light of deficiencies identified by the Government Accountability Office and an internal audit released by the agency in August.

“The ability of workers to speak out and exercise their legal rights without fear of retaliation is crucial to many of the legal protections and safeguards that all Americans value,” Michaels said in an agency press release. “The new measures will significantly strengthen OSHA’s enforcement of the 21 whistleblower laws that Congress charged OSHA with administering.”

As part of the restructuring, OSHA is pilot-testing changes in field structure and, beginning in fiscal year 2012, the agency budget will have a separate line item for the whistleblower program to better track activities. OSHA also added 25 new investigators.

Other changes include a new Whistleblower Investigations Manual with updated information on procedures, enforcement guidance and laws passed since 2003, as well as a modified data collection system and audit program to ensure complaints are handled in a timely manner.

Many of the measures reflect critiques that have been leveled at the program. A GAO report issued in September 2010 said OSHA lacked effective ways to ensure regional compliance, failed to track whistleblower resources separately from other programs and had not made assessing the program’s performance a priority. A review from the Department of Labor, also issued last year, found that 80 percent of investigations under three whistleblower laws did not meet all of the elements of the investigative process.

OSHA’s own top-to-bottom review included several recommendations, including training for whistleblower staff, giving the program its own office or having it report directly to the administrator’s office, and limiting the number of officials reviewing an appeal.

Richard Renner, legal director of the National Whistleblowers Center in Washington, called the reforms long overdue. “I am appreciative that the Department of Labor is focusing on the whistleblower program, increasing the number of investigators, and increasing support and training for those investigators,” he said.

Although he supports having the program report directly to Michaels, Renner said he would like to see the agency adopt a centralized process for making case decisions rather than leaving it to regional administrators. Only time will tell if the present system will make a difference in the number of cases being dismissed, he added.

In a press release issued Aug. 9, Public Employees for Environmental Responsibility, a nonprofit alliance of government employees also based in Washington, criticized OSHA for not going far enough. “OSHA is doing too little too late to salvage a sinking whistleblower program,” Jeff Ruch, PEER’s executive director, said in the release.

PEER is in litigation with the agency to obtain documents purported to prove managers have known about problems in the program for years, but done little to address them.

The group renewed its call for the whistleblower program to be taken out of OSHA, arguing that the restructuring would create a new level of assistant regional managers rather than a new directorate or coordinated national program.

According to PEER, the new managers will still report to the same regional administrators “who have mismanaged the program” and the program will not have the weight to push for resources and regulatory attention from OSHA.

“The limited vision shown by these changes only reinforces the argument that the whistleblower program needs to be removed from OSHA if it is to ever function effectively,” Ruch said in the release. “The world’s largest whistleblower protection program should not be run as an afterthought.”  

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