A federal agency responsible for investigating claims of whistleblower retaliation dismisses the vast majority of cases it examines and fails to meet completion deadlines, an NBC Bay Area analysis of government data revealed.
The Whistleblower Protection Program, administered by the Occupational Health and Safety Administration (OSHA), is supposed to protect American workers from retaliation when they raise red flags about public health and safety or report illegal activity. The program defends workers in 22 different sectors including the airline, pipeline and environmental industries. But critics say the system has failed to stand up for our nation’s workers.
“Whistleblowers don’t stand a fighting chance when they seek justice at this agency,” said Tom Devine, a whistleblower advocate.
As the legal director of the Government Accountability Project, a nonprofit advocacy organization based in Washington D.C., Devine has helped thousands of whistleblowers defend themselves against retaliation. He has testified before Congress and helped pass national whistleblower laws. As part of his work, Devine monitors whistleblower programs throughout the federal government.
“OSHA’s track record is unsurpassed as the lowest common denominator for whistleblower protection in the executive branch,” Devine said. “It’s an agency we warn whistleblowers about.”
Darrell Whitman, a whistleblower investigator in OSHA’s Region 9 office, spoke to the NBC Bay Area Investigative Unit earlier this year to expose what he calls systematic dysfunction within the agency. Whitman said his managers pressured investigators to close cases without proper review and dismissed complaints even when Whitman found they had merit.
Whitman pointed to the numbers in Region 9, which oversees California, Nevada, Arizona and Hawaii. The agency awarded merit to just 2.8 percent of all whistleblower complaints from 2009 to 2014. Whitman called that percentage unacceptable.
Now, national numbers reveal equally dismal results for OSHA’s entire whistleblower program.
An analysis of complaint outcomes in all ten OSHA regions from 2004 to 2014 found:
- OSHA awarded merit to 1.8 percent of cases.
- The agency did not issue a single finding of merit in seven of the 22 industries protected by whistleblower laws. They include laws related to health insurance, asbestos in schools, consumer products, food distribution, cargo containers, maritime safety and public transit.
- Nearly 22 percent of cases resulted in settlements. OSHA considers those outcomes favorable to complainants.
- OSHA dismissed 59 percent of whistleblower cases, which account for the majority of cases OSHA investigated.
Devine called the dismissal rate “obscene.”
“The national track record ranges from 1.5 to 3 percent merit findings,” Devine said. “These are people who charge that their rights have been violated and 97 to 99 percent of the time the government rules, officially rules, that they had it coming.”
The data also reveals that complainants have to wait a long time for answers about their whistleblower cases.
Regulations state that OSHA must complete whistleblower investigations in 90 days or less. The agency reports 71 percent of all cases failed to meet that deadline. The completion time has increased from 98 days in 2004 to 378 days in 2014.
“There is no excuse for how long these cases are taking,” Devine said.
But Devine says there are reasons for the delays. In many instances investigators lack the training necessary to investigate complex whistleblower laws. Devine says OSHA allows companies to bend rules by waiting up to a year to respond to an employee’s whistleblower complaint. He says managers also add time by reinvestigating certain cases.
The delays have real consequences for whistleblowers.
“They are going bankrupt, their families are disintegrating, they are being blacklisted, usually because they have had no vindication,” Devine said. “They may be going through horrible emotional personal crises, have nervous breakdowns, depression, they lose their homes, their lives are a living hell—while OSHA fiddles.”
The Investigative Unit spoke with more than a dozen whistleblowers across the nation who described the emotional toll the long wait times had taken on their lives. Aaron Stookey, a Region 9 complainant, says OSHA dragged out his case for more than four years.
“If I could really describe how I feel on the inside, take a ping pong ball, put it inside a blender and turn it on,” Stookey said. “I’m that ball. That’s how I feel on the inside.”
Stookey worked as a flight service specialist for a major aerospace company. He was fired after raising red flags about the aviation safety. OSHA ultimately dismissed Stookey’s complaint.
“I have had to eek my way through the past few years,” Stookey said. “It’s impacted my credit, finances, quality of life I’m accustomed to and have worked so hard to achieve.”
Criticism of the Whistleblower Protection Program should come as no surprise to OSHA. A series of government reports dating back 25 years reveals major problems with the program.
In 1988 the Government Accountability Office found “complaints were not investigated within statutory timeframes.” The Department of Labor’s Office of Inspector General made the same observation more than a decade later in 2001.
Then, in 2010 the Office of Inspector General criticized OSHA for “not always ensuring that complainants received appropriate investigations.”
In 2006, OSHA leaders tapped Nilgun Tolek to head the Whistleblower Protection Program. She said OSHA leaders asked her to reform the flailing agency but pushed back on her proposals.
“I think it was lip service and that no one really had any great intention to do anything differently that they already did it,” she said. “It was unbelievably frustrating. I mean it drove me out.”
Tolek left the agency in 2011 with the conclusion that Congress should move the Whistleblower Protection Program out of OSHA. Critics, including Devine, agree.
The agency declined interview requests but provided an April memo written by Dr. David Michaels, the head of OSHA.
“Our whistleblower program is clearly getting stronger,” Michaels wrote. “We are focused on improving both the efficiency and quality of our investigations.”
Michaels noted that the program reached a record number of merit findings in 2013—75 out of what numbers show to be 3,757 complaints completed that year. He wrote that monetary awards to whistleblowers more than doubled in a span of four years from $15.2 million in 2011 to $35.8 million 2014.
He also pointed out that OSHA added more staff to the Whistleblower Program, elevated the program from an office within the agency’s enforcement directorate to its own directorate, and created a national whistleblower advisory committee. Michaels also noted that OSHA has expanded basic training courses for investigators.
“Dr. David Michaels is giving some very inspiring speeches about his desire for this to become an effective workers rights organization. So far the rhetoric is not clothed in reality,” Devine said. “It’s important to maintain the appearance that we are all behind whistleblowers, even if we are stabbing them in the back from behind.”
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