THE BLOG
06/19/2014 12:42 pm ET | Updated Aug 19, 2014

The Whistleblower Protection Program Is Broken Too

It has been heartbreaking to follow the news reports detailing how the Veterans Administration has been falsifying records about the medical treatment it is supposed to be providing to America's injured heroes. If that weren't bad enough, those same news reports have documented an all-too-common problem: the doctors and staff who rightly objected to the VA's illegal practices were retaliated against for doing so. As with the VA itself, the federal bureaucracy charged with protecting "whistleblowers" -- an unnecessarily disparaging appellation if there ever was one -- is itself broken. The consequences for American workers are catastrophic.

A "whistleblower" is an employee who exposes alleged misconduct or illegal activity occurring in an organization. The alleged misconduct can take many forms; for example, a violation of a law, rule, or regulation; and/or a direct threat to the public interest such as fraud, health and safety violations, and corruption. It's illegal for an employer to retaliate against an employee for blowing the whistle. Retaliation is defined by federal law as any "adverse action" taken by the employer against the whistleblower: firing the whistleblower, trying to intimidate the whistleblower, disciplining the whistleblower, reducing the whistleblower's pay, and the like.

Although most Americans probably don't realize it, the Occupational Safety and Health Administration -- OSHA, for short -- is the agency charged by federal law with enforcing the vast majority of the whistleblower protection statutes. Unfortunately, OSHA does a terrible job at it, as recent studies by the Government Accounting Office, the Office of Inspector General of the U.S. Department of Labor (OIG), and OSHA itself have documented. For example, in a comprehensive December 2010 top-to-bottom report OSHA concluded that there were "systemic" failures in the whistleblower protection program and recommended that the Whistleblower Investigations Manual be revised to remedy them. Succinctly put, OSHA's top-to-bottom report concluded that far too many of the investigators weren't investigating the whistleblower complaints and that OSHA's senior management didn't seem to care that they weren't.

The Whistleblower Investigations Manual was rewritten in September of 2011 and it is now first-rate. It instructs the investigators in painstaking detail about the procedures they must follow when investigating a whistleblower complaint, and it reminds the investigators that particular procedures exist so that the correct substantive decisions can be reached. Unfortunately, too many investigators still don't follow the Whistleblower Investigations Manual -- most probably never read it -- and OSHA senior management still doesn't seem to care that they don't. Instead, they are merely trying to close as many whistleblower cases as possible with as little effort as possible: the facts and the law be damned.

Unresolved systemic problems include, but are not limited to: overlooking retaliation complaints altogether; failing to send case opening letters to whistleblowers and employers when OSHA does manage to notice a retaliation complaint; relying almost exclusively on the dissemblings of the employer's lawyers rather than interviewing witnesses; investigators who don't know what the law is that they are charged with enforcing; investigators who don't bother to understand the facts of a particular case; investigators who fail to conduct mandatory closing conferences to make sure they haven't missed anything; and an appeals process that rubber-stamps flawed investigations via brief form letters.

To make matters worse, many investigators treat the whistleblower as the wrongdoer and insult, yell at, and even lie to the person they are charged by federal law with protecting. And when this behavior is reported to OSHA's senior management, they do nothing about it because it would take time and effort to do so and federal civil service laws make it extremely difficult to discipline, let alone terminate, the misbehaving investigators. Indeed, the federal whistleblower protection program is so dysfunctional that in one recent case with which I am familiar OSHA senior management assigned an investigator accused of wrongdoing the task of investigating her own misconduct, despite the fact that the OIG instructed OSHA senior management to address the alleged misconduct in an appropriate way.

Perhaps most shocking of all, OSHA's top-to-bottom report revealed that less than five percent of whistleblowers receive merits findings. Employees have better things to do with too much at stake than to file whistleblower complaints that lack merit. The consequence is that OSHA is emboldening rogue employers to continue retaliating, including against the whistleblower who alleged that he or she was retaliated against in the first place. The brave doctors and staff at the VA who refused to falsify the medical records of our nation's heroes should be commended for their integrity, not punished for it. The same holds true for all American workers.

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