Spurred by a Government Accountability Office (GAO) assessment of the Occupational Safety and Health Administration’s Whistleblower Protection Program, the agency has announced that it plans to strengthen its efforts to investigate and enforce whistleblower complaints. OSHA is charged with enforcing the whistleblower provisions contained in 21 separate statutes, including Section 11(c) of the Occupational Safety and Health Act (OSH Act). According to OSHA, the GAO found “significant problems with OSHA's transparency and accountability, training for investigators and managers, and the internal communication and audit program.” To that end, OSHA commissioned an internal investigation of its Whistleblower Protection Program to examine the “national and regional program structure, operational procedures, investigative processes, budget, equipment, and personnel issues.”

As a result of this investigation, which, according to OSHA, confirmed the GAO’s assessment of the Program, OSHA plans to implement the following changes:

• Restructuring. Moving forward, OSHA's Whistleblower Protection Program will report directly to the Assistant Secretary instead of being housed in the Directorate of Enforcement. According to the agency, doing so will “increase consistency, timely investigations, and better customer service.” In addition, OSHA notes that since FY 2011, the agency has hired more than 25 new investigators and appointed a new Acting Director. For its FY 2012 budget, OSHA established a separate line item for the whistleblower program “to better track and hold accountable its activities and accomplishments,” and requested a $6.1 million increase to fund an additional 45 investigators.
• Training. OSHA has and will continue to host training sessions for its whistleblower investigators. Next month, OSHA will hold a national whistleblower training conference that will be attended by all whistleblower investigators from both federal and state plans, as well as by DOL solicitors who work on whistleblower cases.
• Program Policy. OSHA has revised and plans to issue a new edition of the Whistleblower Investigations Manual that updates current procedures and includes information on the new laws enacted since the manual was last updated in 2003. According to OSHA, the new manual “will provide further guidance on the enforcement program to help ensure consistency and quality of investigations.” Significant changes include:
  • Requiring investigators to make every attempt to interview the complainant in all cases, and mandating that as part of the intake process supervisors verify that applicable coverage requirements have been met and that the prima facie elements of the allegation have been properly identified.
  • Clarifying that whistleblower complaints under any statute may be filed orally or in writing, and in any language.
  • Including new chapters for processing complaints filed under Federal Railroad Safety Act (FRSA), National Transit Systems Security Act (NTSSA), and Consumer Product Safety Improvement Act (CPSIA), as well as significant updates to the Surface Transportation Assistance Act (STAA) and SOX chapters, which incorporate statutory amendments and developments in the law.
  • Expanding guidance on dealing with uncooperative respondents and issuing administrative subpoenas during whistleblower investigations.
• Internal Systems. OSHA has revised its information database (IMIS) to include additional information about screened-out whistleblower complaint cases, and their reasons. The agency also has amended its Management Accountability Program (MAP) to include a more expanded section on its whistleblower complainant activities to better track the progress of investigations.

In a news release, OSHA Assistant Secretary Dr. David Michaels said of these efforts: “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,” adding “The new measures will significantly strengthen OSHA's enforcement of the 21 whistleblower laws that Congress charged OSHA with administering.”

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