U.S. Department of Labor
Office of Inspector General

Audit Report


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Report Title:  Whistleblower Protection Under Section 11(C) of the Occupational Safety and Health Act

Report Number:  05-97-107-10-105

Issue Date:  March 31,1997

Although the Occupational Safety and Health Administration (OSHA) is responsible for protecting workers' safety and health, OSHA cannot possibly inspect every work place in the country or identify every potential health and safety hazard that might exist. For these reasons, it is critical that workers feel free to raise health and safety concerns without fear of retaliation by their employers.

Section 11(c) of the Occupational Safety and Health Act (OSH Act) prohibits retaliation by employers against workers who "blow the whistle" by exposing health and safety hazards. Workers who believe they were unfairly treated because they complained about unsafe or unhealthy working conditions can file a complaint with OSHA. If, upon investigation, OSHA finds the allegation has merit, OSHA attempts to negotiate a settlement between the worker and employer. If a settlement cannot be reached, OSHA refers the case to the Office of the Solicitor (SOL) to consider filing a civil action in the U. S. District Court.

The OIG performed an audit of OSHA's 11(c) whistleblower protection program to examine the extent to which workers were protected by the program and to review the reasonableness and adequacy of OSHA's actions resulting in decisions to settle, dismiss and withdraw employee complaints for the period October 1, 1994 to September 30, 1995.

The OIG audit found that workers who complained directly to their employers about workplace safety or health hazards were more likely to be fired from their jobs than workers who directly complained to OSHA. Based on the random sample of 653 discrimination cases we reviewed, nearly 82 percent of the workers who had asked their employers to correct safety/health hazards stated that they were subsequently fired in retaliation for complaining. Approximately 51 percent of employees who complained directly to OSHA stated that they were improperly terminated from their jobs. Although the incidence of terminations is high in both cases, OSHA's involvement seems to have had a dampening effect on employers' willingness to fire employees who complain about unsafe or unhealthy work places.

Workers in small firms (those who employ 10 or fewer workers) are most vulnerable to being fired for complaining about workplace hazards. Small firms with better than average safety and health records are not subject to OSHA's regular cycle of safety inspections. Without OSHA's whistleblower protection, employees at small firms would have little choice but to work in hazardous environments, or risk termination for complaining.

Our audit also found that OSHA's current operating practices may prevent whistleblowers from obtaining "all appropriate relief," as provided by the OSH Act for complainants with merit cases. OSHA may settle cases too early because of legislated time constraints for conducting investigations. In addition, many case files contained incomplete documentation of workers' lost back wages, and cases referred for litigation were often rejected. We also found that 81 percent of the cases that OSHA referred to the Office of the Solicitor for possible legal action were not acted upon promptly. Moreover, our audit disclosed that OSHA has authority to seek punitive as well as compensatory damages. However, it rarely exercises the authority to seek damages.

Finally, our audit found that OSHA's automated case management system is ineffective for reporting and managing 11(c) cases. The system is not consistently relied on, does not help field offices manage their operations, and does not convey to interested parties information about how well OSHA enforces Section 11(c) program provisions.

To improve the protection provided to whistleblowers under Section 11(c) of the OSH Act, we recommended that the Assistant Secretary for OSHA:

OSHA agreed that some whistleblowers may be underserved as a result of OSHA's emphasis on early settlement of cases, as opposed to pursuing cases in court. However, OSHA indicated that the approach recommended by OIG would only serve to further delay a settlement for an employee who, in most cases, is out of a job and has no income. In addition, OSHA stated that no case is settled without the consent of the complainant. OSHA also pointed out that the Department has selected whistleblower complaints as disagreements which should be settled through Alternative Dispute Resolution procedures rather than litigation.

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