Labor Lacks Reliable Data on Processing Times for the Whistleblower Program

Labor lacks reliable information on processing times and, as a result,  cannot accurately report how long it takes to investigate and close a case  or decide on certain appeals. At all three agencies, certain factors,  such as heavy caseloads, case complexity, and accommodating requests  from the parties’ legal counsel, negatively affect case processing times. Specifically,  the dates used to measure processing times are often inaccurately  recorded in OSHA’s database or cannot be verified due to a lack of  supporting documentation in the case files. OSHA does not have an effective  mechanism to ensure that the data are accurately recorded in the system. Data on the timeliness of OALJ decisions, which  were reliable, showed that OALJ completed 207 cases in fiscal year 2007  with an average of about 9 months per case. Whistleblowers Received a Favorable Outcome in a Minority of Cases, but OSHA’s Data Somewhat Overstate the Outcomes

Whistleblowers received a favorable outcome in a small proportion of the  complaints that were closed in fiscal year 2007, both in terms of initial  decisions and on appeal, but the actual proportion may be slightly lower  than Labor’s data show. At the appeals level, whistleblowers similarly won  a minority of the cases closed in fiscal year 2007—not more than one-third  of outcomes favored the whistleblower. OSHA’s data show that about 21 percent of the  complaints resulted in dispositions favorable to the whistleblower—OSHA  refers to the case as “having merit”— and nearly all of them were settled  through a separate agreement involving the whistleblower and the  employer. We found  several problems in the way complaints were being recorded in OSHA’s  database. For all other statutes, cases may generally be appealed to OALJ and,  ultimately, to ARB. OSHA Faces Challenges in Ensuring the Quality and Consistency of the Program

OSHA faces two key challenges in administering the whistleblower  program—it lacks a mechanism to adequately ensure the quality and  consistency of investigations, and many investigators report they lack  certain resources they need to do their jobs—including equipment,  training, and legal assistance. OSHA does not routinely conduct  independent audits of the whistleblower program to ensure consistent  application of policies and procedures. OSHA’s new field audit program  has begun to address this need but is lacking in several key areas; in  particular, it does not adequately provide for audit independence or for  accountability in resolving audit findings. With respect to resources, nearly  half of the investigators overall reported that the equipment they have  does not meet the needs of the job, but these equipment needs vary from  region to region. OSHA has not established minimum standards for  investigator equipment, and we found that the equipment investigators  lack varies from region to region. OSHA’s audit processes do not adequately  provide for independence, an important aspect of an effective audit  program and a key aspect of generally accepted government auditing  standards. Whistleblower  investigators reported that they need more training to address their  complex cases. OSHA, OALJ, and ARB commented separately. Appendix I: Objectives, Scope, and Methodology

The objectives for this engagement were to determine (1) what is known  about the processing times for claims under the whistleblower statutes  that the Department of Labor (Labor) administers and the factors that  affect processing times, (2) what the outcomes were of those complaints,  and (3) what key challenges Labor’s Occupational Safety and Health  Administration (OSHA) faces in administering the program. Objective 1: Processing Times

To determine what is known about processing times, we obtained and  tested the reliability of databases on key information about  whistleblowers’ cases from OSHA, the Office of Administrative Law  Judges (OALJ) and the Administrative Review Board (ARB).
Why GAO Did This Study

Workers who "blow the whistle" on prohibited practices play a role in enforcing federal laws, but these workers risk reprisals from their employers. The Whistleblower Protection Program at the Department of Labor's (Labor) Occupational Safety and Health Administration (OSHA) is responsible for investigating whistleblowers' complaints. OSHA's decisions generally may be appealed to the Office of Administrative Law Judges (OALJ) and, ultimately, the Administrative Review Board (ARB). GAO examined (1) what is known about processing times for complaints and what affects these times, (2) what outcomes resulted, and (3) what challenges OSHA faces in administering the program. To answer these questions, GAO analyzed electronic data files from OSHA, OALJ, and ARB; visited five OSHA regional offices; reviewed case files; conducted a Web-based survey of investigators; and interviewed key officials.

What GAO Found

Labor lacks reliable information on processing times and, as a result, cannot accurately report how long it takes to investigate and close a case or decide on certain appeals. OSHA does not have an effective mechanism to ensure that the data are accurately recorded in its database, and GAO's file reviews revealed that the key dates are often inaccurately recorded in the database or cannot be verified due to a lack of supporting documentation. For example, in one region visited, none of the case closed dates matched the documentation in case files. At the appeals level, the reliability of information on the processing times is mixed. Timeliness data at the OALJ level are reliable, and the OALJ completed appealed cases in an average of about 9 months in fiscal year 2007. In contrast, ARB data are unreliable, and the agency lacks sufficient oversight of data quality. GAO's file review found that ARB processing times ranged from 30 days to over 5 years. At all levels of the whistleblower program, GAO found that increasing caseloads, case complexity, and accommodating requests from the parties' legal counsel affect case processing times. Whistleblowers received a favorable outcome in a minority of cases that were closed in fiscal year 2007, both at initial decision and on appeal, but the actual proportion may be somewhat lower than Labor's data show. OSHA's data show that whistleblowers received a favorable outcome in 21 percent of complaints--nearly all settled through a separate agreement involving the whistleblower and the employer, rather than through a decision rendered by OSHA. However, GAO found several problems in the way settlements were being recorded in OSHA's database, and a review of settlement agreements suggests that the proportion of cases found to have merit may actually be about 19 percent. As with investigations, when whistleblower complaints were appealed, decisions favored the whistleblower in a minority of the cases--one-third or less of outcomes favored the whistleblower. With respect to administering the whistleblower program, OSHA faces two key challenges--it lacks a mechanism to adequately ensure the quality and consistency of investigations, and many investigators said they lack certain resources they need to do their jobs, including equipment, training, and legal assistance. OSHA does not routinely conduct independent audits of the program to ensure consistent application of its policies and procedures. OSHA's new field audit program has begun to address this need but is lacking in several key areas. For example, the current audit processes do not adequately provide for independence, an important aspect of an effective audit program. Moreover, OSHA is challenged to ensure that investigators in all regions have the resources they need to address their large and complex caseloads. OSHA has not established minimum equipment standards for its investigators, and nearly half of the whistleblower investigators reported that the equipment they have does not meet the needs of their jobs. Furthermore, investigators often cite the need for more training and legal assistance on the complex federal statutes that OSHA administers.