The Occupational Safety and Health Administration’s (OSHA) fiscal year 2011 evaluations of the 27 states and territories that run their own occupational safety programs found many problems, including a failure to interview workers subject to alleged retaliation and their supervisors, the existence of state laws that could discourage complaints, shoddy recordkeeping and poor case file management.
The Federal Annual Monitoring Evaluation (FAME) reports for the 25 states and two territories with plans approved by federal OSHA were released in August 2012.
It wasn’t all bad news. Several states improved their enforcement of whistle-blower regulations after OSHA issued similar reports for fiscal 2009 and 2010, but many states were pinged on aspects of their whistle-blower retaliation programs. For example:
Arizona. According to the report, there was not a consistent policy or practice of informing complainants of their right to file with federal OSHA concurrently. There was no consistent policy or practice regarding contacting privately third-party nonmanagement witnesses for retaliation complaints. Some investigators who investigated retaliation complaints never received basic whistle-blower investigation training. Some cases were misclassified as to the way they were resolved in the content management system, according to the report.
Hawaii. Hawaii OSHA lacked a separate whistle-blower retaliation investigation department. The agency’s health branch manager supervised the whistle-blower program with three environmental health specialists assigned investigations as collateral duties. The manager and two of the specialists spent a significant amount of their time on non-whistle-blower enforcement activities, while the third specialist was assigned to spend the majority of his time handling whistle-blower complaints.
Necessary evidence was not investigated properly, resulting in Final Investigation Reports that were incomplete and without supporting facts. In one case, Hawaii OSHA “failed to address clear evidence of animus, strong temporal proximity, and respondent’s failure to properly provide a credible explanation as to why a long-term employee with a spotless record suddenly faced conduct-based discipline following a safety complaint.”
Nevada. Sometimes, interviews with retaliation complainants were missing and/or incomplete, the federal auditors found. In some cases, discrepancies were not resolved and complainants were not provided an opportunity to respond to respondent’s defenses. Whistle-blower case data entered into the content management system was found to be inaccurate and unreliable.
In addition to these issues, federal OSHA found that a state statute requiring that workers planning to file a whistle-blower complaint first must notify their employers of their intent had “a chilling effect” on workers. Under Nevada law, the employer is notified of the complaint even if Nevada OSHA administratively closed the case prior to commencing an investigation, which then made the worker vulnerable to retaliation for merely contacting Nevada OSHA, the report stated. Federal OSHA does not have an equivalent statute or policy requiring a complainant to notify the employer before filing a retaliation complaint. Federal OSHA provides the complaint to the employer after an investigation is opened.
Federal OSHA advised Nevada to drop the notification requirement.
Vermont. Vermont’s whistle-blower program was found to be not as effective as the federal program and not meeting federal standards. The review found that Vermont OSHA’s program failed to adopt most recommendations made after program audits in 2004 and 2009.
The audit team noted the following serious weaknesses in the state’s whistle-blower program:
- Never established an appeals process.
- Failed to notify complainants of their rights.
- In a few cases, federal OSHA would not have reached the same determination as Vermont OSHA. In other cases, the investigation and final report lacked the evidence and/or analysis necessary to determine whether federal OSHA would have reached the same conclusion.
- Investigators did not receive sufficient training and supervision.
- Supervisors of the whistle-blower program have no training or experience in retaliation investigations.
- Vermont OSHA’s website does not include sufficient information about its whistle-blower program and the available information is difficult to locate, according to the report.
Cal/OSHA Program Blasted
The OSHA FAME review recommended 23 changes to the California Division of Occupational Safety and Health (Cal/OSHA) whistle-blower program, the most by far of any state reviewed.
Cal/OSHA’s case file audit revealed a general lack of interviews with complainants, respondent witnesses, and third-party nonmanagement witnesses, including a lack of documentation for such interviews in the case files. The lack of adequate investigations had a significant impact on the quality of the investigators’ analysis, findings and determination, the review found. In several cases, the investigator failed to analyze the evidence and simply accepted the respondent’s contention that there was a “legitimate nonretaliatory reason” for the adverse employment action taken against the complainant without undertaking any analysis of whether evidence of “pretext” existed, according to the findings.
Of the 21 case files reviewed, the investigators failed to interview the complainant in 57 percent of the cases (12 of 21) and failed to interview the respondent witness or witnesses in 81 percent of the cases (17 of 21). Perhaps most worrisome, the review found that Cal/OSHA investigators failed to interview all appropriate witnesses in 90 percent of the cases (19 of 21).
“The investigators’ failure to conduct these interviews left many key questions unanswered and resulted in inadequate investigations and analysis,” the report stated.
Recordkeeping and case file management were other notable areas flagged for “in need of improvement.”
Of the 21 cases reviewed, no case file contained the equivalent of a Final Investigation Report, as required. Records reviewed were “sparse,” “lacked detail” and “generally lacked important information,” the report said. “Time spent carefully taking notes and writing memoranda to file is considered productive time and can save hours, days and dollars later when memories fade and issues become unclear,” chided federal OSHA. Only one of the three merit cases reviewed included an Investigative Work Plan, and two of the three cases had no final report of any kind.
Recordkeeping was so haphazard, the report said, that it was unclear to OSHA’s review team how many complaints Cal/OSHA closed out in fiscal 2011. Figures ranged from 68 closed cases to 238. The federal OSHA team settled on 202 closed cases. The percentage of California cases found to have merit was 5.88 percent, among the lowest for the 27 states reviewed.
Case file management was found to be in such disarray, that it “made it difficult for the auditors to adequately conduct its review,” the report said.
Also according to the review, Cal/OSHA was slow to complete investigations; investigators took an average of 333 days to close out cases. Out of 21 cases reviewed, only one was completed within the federal OSHA goal of completing a case within 90 days. Out of the total 128 whistle-blower investigations undertaken in fiscal 2011, only 4 percent were completed within the 90-day period as required by federal OSHA.
Other findings pointed to inadequate training for investigators, notification policies not followed and incomplete data entered into the online management system.
A spokesperson for Cal/OSHA told SHRM Online that the agency had no comment about the report, other than it is consulting with federal OSHA on the findings.
Roy Maurer is an online editor/manager for SHRM.
OSHA Administration of State OSH Plans Raises Concerns, SHRM Online Safety & Security Discipline, June 2011
Report: OSHA Should Determine Effectiveness of State OSH Programs, SHRM Online Legal Issues, April 2011
OSHA Calls for Corrective Action in State-Run Occupational Safety and Health Programs, SHRM Online Legal Issues, October 2010
Stronger Federal Oversight Over State Safety Plans Promised, SHRM Online Safety & Security Discipline, November 2009
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