OSHA fires its own whistleblower

Posted on July 24, 2009 by Richard Renner

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Next week is the last week on the job for OSHA whistleblower Bob Whitmore.  After working for 37 years without any discipline, rising to senior management, Bob Whitmore will lose his job with the Occupational Safety and Health Administration (OSHA) for "intimidating and disruptive behavior."  Whitmore had blown the whistle on OSHA's refusal to penalize companies that underreport their workplace injuries. Now Joe Davidson of the Washington Post and Ames Alexander of the Charlotte Observer report that OSHA has decided to discharge Whitmore.

The incident is all the more troubling in light of OSHA's role as an investigator of whistleblower complaints under 17 federal environmental, safety and integrity laws.  If OSHA would stoop to firing one of its own whistleblowers, how can it fairly assess the whistleblower claims of other employers? Indeed, the General Accounting Office report in February found that OSHA fails in that mission, too.

 

 

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Miner whistleblower gets nod for reinstatement

Posted on April 30, 2009 by Richard Renner

The Federal Mine Safety and Health Administration (MSHA, pronounced "EM-sha") has asked a federal administrative judge to order the preliminary reinstatement of coal miner Billy Brannon. Thanks to a tip from Paul Taylor of the Truckers Justice Center, I am glad to read Bill Estep's article in yesterday's Lexington Herald-Leader.

Estep's article reports that Billy Brannon worked at Panther Mining's No. 1 mine in Cloverlick Hollow, Harlan County, Kentucky -- a non-union mine.  On March 26, he reported exposed electrical wires to state and federal regulators.  On March 27, the company fired him.  The company claims it did nothing wrong in firing Brannon.  MSHA investigator Stanley Sturgill has concluded that Panther fired Brannon for making the safety complaint.  MSHA has now asked the Federal Mine Safety and Health Review Commission to order that Panther reinstate Brannon.

Under the MSHA Act, the Department of Labor must issue a preliminary order of reinstatement when it determines that the complaint is not frivolous.  Section 105(c) of the Mine Safety and Health Act.

Brannon's attorney, Tony Oppegard, is quoted as saying that MSHA is the only federal law that provides for preliminary orders of reinstatement.  That is not quite right.  There are other federal laws that also provide for preliminary orders of reinstatement for whistleblowers.  They include: 

1. The Energy Reorganization Act, which has provided for preliminary reinstatement orders since the 1992 amendments.
2. The Surface Transportation Assistance Act (STAA), which protects truck drivers and other employees of motor carriers.
3. The Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (called "AIR 21"), which protects airline employees.
4. The Pipeline Safety Improvement Act of 2002 (PSIA)
5. The Sarbanes-Oxley Act of 2002, which protects those who report fraud and other violations of securities laws
6. The Federal Rail Safety Act (FRSA)
7. The National Transit Systems Security Act of 2007
8. The Consumer Product Safety Improvement Act of 2008
9. The American Recovery and Reinvestment Act of 2009

The first eight of these laws are enforced through a complaint to the Occupational Health and Safety Administration (OSHA). (The ARRA is enforced through complaints to agency inspectors general.) Unfortunately, OSHA has rarely enforced these laws on behalf of whistleblowers. Many whistleblowers lose out because they are not aware that they have to file written complaints with OSHA within surprisingly short time limits, ranging from 30 to 180 days. That might explain why attorney Oppegard has never heard of these provisions. Unlike the MSHA Act, the other laws require that the whistleblower prove that the protected activity was a contributing factor in the adverse decision. A recent report of the General Accounting Office (GAO) found widespread failures of training, resources, and standards in OSHA's whistleblower protection program. I hope the new administration will address these concerns promptly, and build a whistleblower protection program that has the effectiveness MSHA is showing in Kentucky.

I also notice that MSHA is looking to hire new mine inspectors in Kentucky.
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GAO report says whistleblowers and taxpayers deserve better

Posted on March 3, 2009 by Richard Renner

A recent report from the Government Accountability Office (GAO) says what many whistleblower practitioners have long known:  the Department of Labor's whistleblower program needs more resources and better quality.  Investigators do not have the equipment, training, legal counsel or oversight needed to assure quality investigations.

The GAO discovered that OSHA does not have the systems in place to assure the accuracy of case statistics, the agency's processing time, reasons for screening out complaints, and the outcomes of settlements.  GAO found that the Office of Administrative Law Judges (OALJ) did have reliable and verifiable case tracking data, and its average processing time for a whistleblower appeal was nine (9) months.  The Administrative Review Board (ARB) considers appeals from ALJ decisions, and its processing time can range from thirty (30) days to five (5) years.  GAO found that the ARB does not have reliable data of its docket flow and lacks oversight of its data quality.

Overall, the GAO found that whistleblower caseloads are increasing, and the cases themselves are becoming more complex.  GAO recommended that each OSHA Regional Office conduct an independent audit of its whistleblower program to identify program deficiencies and the corrective actions needed.

For outcomes, GAO found that OSHA's report of a 21 percent success rate for whistleblowers could be misleading.  OSHA includes all settled cases in the "successful" category.  As a result, "nearly all" of the successful cases were settlements, rather than OSHA decisions on the merits.  GAO found that even some of the settled cases were not properly recorded, and the actual success rate is more likely 19 percent.  These statistics suggest that OSHA investigators work with employer's lawyers and encourage settlement in cases where OSHA would otherwise find merit.  In cases were OSHA is accepting the employer's word about its motives for an adverse action, most investigators simply issue a determination to dismiss the whistleblower's complaint.  In appeals to OALJ, whistleblowers win less than a third of the contested cases.

GAO found that OSHA has not even established a minimum equipment list saying what investigators should have.  Some, but not all, have laptop computers and portable printers to take written statements in the field.

The GAO report arrives at an opportune moment.  The new Secretary of Labor Hilda Solis has an opportunity to give the whistleblower program new leadership that reflects a commitment to protecting whistleblowers.  
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GAO Report Highlights Lack of Accountability, Transparency in Big-Business Bailouts

Posted on December 3, 2008 by Marshall Chriswell

Yesterday the Government Accountability Office, which is responsible for overseeing wasteful spending in the federal government, issued a 66 page report (see the summary here, with link to the full report) concluding that the Treasury Department and Congress have not done enough to prevent waste, fraud and abuse in the $700 Billion bailout bill passed in October:
 

"Treasury has yet to address a number of critical issues, including determining how it will ensure that CPP is achieving its intended goals and monitoring compliance with limitations on executive compensation and dividend payments. Moreover, further actions are needed to formalize transition planning efforts and establish an effective management structure and an essential system of internal control. To help ensure the program's integrity, accountability, and transparency"
 

Although this report does not recommend specific legislative proposals, the best thing that Congress could do to stem financial misconduct and waste is simple...protect whistleblowers.


In September, the National Whistleblowers Center joined with over 200 other public interest organizations in calling for Congress to include whistleblower protections in the bailout legislation. Yet, Congress failed to act.
 

The GAO calls for several reforms in the administration of the Troubled Asset Relief Program (TARP) -- which is responsible for doling out the billions -- but whistleblower protection should be the centerpiece of any reform package, as it is a necessary prerequisite for these reforms to work. Without protecting the whistleblowers who report misconduct, other reforms are doomed to fail. Two recent studies, one by PriceWaterhouseCooper, the internationally respected auditing agency, and another by the University of Chicago, both found that whistleblowers are the #1 way to ferret out corporate fraud.
 

Also ABC News ran this story on the need for corporate whistleblower protection in the wake of the bailout.


Let's not forget that it was corporate greed and lack of oversight that got us into this financial mess, and that is precisely why Congress, the administration (and the next administration) should take decisive action, now.

 

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