OSHA Announces New Policy Manual, Restructuring for Whistleblower Program

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The Occupational Safety and Health Administration announced a series of changes Aug. 1 to improve its whistleblower protection program, responding to a sharply critical 2010 Government Accountability Office report and the findings of its own internal investigation.

The changes include a new Whistleblower Investigations Manual, to be issued soon, that will update procedures and offer more detailed guidance to ensure consistency and quality of investigations, David Michaels, assistant secretary of labor for occupational safety and health, said in an “internal review report” posted Aug. 1.

The new manual will include a requirement that investigators make “every attempt” to interview the complainant, Michaels said, and that, “as part of the intake process, the supervisor verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.”

The manual will also clarify parts of the investigative process, including the method and recording of interviews, and will offer new sections for processing complaints under the Federal Railroad Safety Act, the National Transit Systems Security Act, and the Consumer Product Safety Improvement Act. “Significant” updates will also be included on the Surface Transportation Assistance Act and the Sarbanes-Oxley Act, OSHA said.

OSHA enforces the whistleblower protection provisions of 21 statutes, covering not just workplace safety but also the environment, consumer products, the financial system, and other areas.

OSHA to Restructure Operations

Also as part of its overhaul, OSHA will restructure its operations so the whistleblower program will fall directly within the jurisdiction of the assistant secretary. Currently the program is housed in the Directorate of Enforcement. Michaels said the shift will “increase consistency, timely investigations, and better customer service.”

Further changes include a “more robust” outreach program to increase transparency and collaboration, Michaels said, and more intensive inspector training, beginning with a national conference in September that will be attended by all whistleblower investigators from both OSHA and state plan states, as well as by Labor Department solicitors who work on whistleblower cases.

GAO's Sept. 16, 2010, report alleged serious shortcomings in the way OSHA trained its inspectors, failed to audit the program, did not ensure consistent policies and procedures at the regional level, and kept inaccurate data on the outcomes of many whistleblower cases (40 OSHR 788, 9/23/10).

Many of the same shortcomings were cited in a report by the Labor Department's Office of Inspector General, issued Sept. 30, 2010 (40 OSHR 826, 10/7/10).

In his internal report, Michaels said OSHA already has made meaningful improvements to its program, including ongoing work to strengthen its auditing and eliminate its backlog of more than 150 complaints on appeal, some of which had been on appeal since 2008.

“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 Aug. 1 statement. “The new measures will significantly strengthen OSHA's enforcement of the 21 whistleblower laws that Congress charged OSHA with administering.”

Labor Advocates Call for Statutory Changes

Justin Feldman, worker health and safety advocate at Public Citizen, said Aug. 2 it was too early to tell whether the changes will directly address the problems raised in the GAO report, but that any attempts to improve the whistleblower program are welcome.

More broadly, however, Feldman said other problems with the program are not addressed in the GAO report, such as the Solicitor of Labor's historical unwillingness to take up whistleblower cases.

“I'm not sure of the degree to which OSHA can internally fix those things,” Feldman said.

Similarly, Joel Shufro, executive director of the New York Committee for Occupational Safety and Health, applauded the changes, but said more substantive protections can only be brought about by changes to the OSH Act.

“Within the context of the law, this is an important and good step forward,” Shufro said Aug. 1. “It provides additional resources and greater attention to an issue that is a fundamental problem for working people. Whether this will resolve the problem of employer intimidation of working people, particularly those who are not in unions and immigrant workers, is still an open question. The law itself needs to be changed to make protections real for unprotected workers.”

One key statutory change would be an extension or removal of a provision requiring whistleblower complaints to be filed within 30 days, according to Shufro.

“For most workers, intimidation comes in many forms,” he said. “It can be subtle or blatant, and employers always have many reasons that they can give for taking retribution against workers.”

Meanwhile, OSHA's fiscal 2012 budget request includes a $6.1 million increase for the whistleblower program to hire 45 new investigators (41 OSHR 135, 2/17/11).

By Stephen Lee

The Occupational Safety and Health Administration's internal review report of its whistleblower protection program is available at http://www.whistleblowers.gov/report_summary_page.html .