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LABOR & EMPLOYMENT LAW — 03/11/09

Nation's whistleblower laws inadequately enforced, GAO finds

Whistleblowers who call out illegal activities are not adequately protected from retaliation from their employer, according to a recent report by the Government Accountability Office (GAO) released by Democratic lawmakers on February 26. GAO found these problems stem largely from a lack of resources and proper tracking of complaints, as well as a complicated patchwork of regulations that aim to protect whistleblowers.

The investigation was requested by U.S. Reps. George Miller (D-CA), Lynn Woolsey (D-CA) and U.S. Senator Patty Murray (D-WA).

As a result of the lack of resources and proper tracking of complaints, whistleblowers who call out illegal activities are not adequately protected from retaliation from their employer, the GAO concluded. In fact, only one in five complaints is successful.

Whistleblowers provide a valuable --and federally protected --service when they call attention to practices that violate federal law. At the same time, workers who blow the whistle often face retaliation from their employers for speaking out. The federal Occupational Safety and Health Administration is charged with receiving and investigating whistleblower claims covering 17 laws from workplace health and safety issues to Wall Street mismanagement.

"OSHA faces two key challenges --it lacks a mechanism to adequately ensure the quality and consistency of investigations, and many investigators have said they lack some of the resources they need to do their jobs, including equipment, training, and legal assistance," the GAO found. GAO last investigated OSHA's whistleblower protections program twenty years ago.

"It's deeply troubling that workers who risk everything to blow the whistle on fraud and other serious matters remain exposed to employer retaliation and other harms," said Rep. Miller, chairman of the House Education and Labor Committee. "With the enormous investments now being made to save or create jobs, and the reforms intended to shed Wall Street of its culture of reckless greed, waste and mismanagement, we must protect workers who come forward at great risk trying to save lives and stop corruption."

"Every day workers are fired and blacklisted for exposing practices in the private sector which violate federal law," said Rep. Woolsey, the chair of the House Subcommittee on Workforce Protections. "While a handful are lauded in the press for their actions, most whistleblowers face a lifetime of hardship for their willingness to speak up. This is unacceptable. I will continue to work with my colleagues on the committee, along with our partners in the Senate, to develop a streamlined and efficient review process that protects the rights and reputations of those brave enough to speak out."

"In the face of intimidation and retaliation, whistleblower protections are often the only thing that give workers the strength to stand up and speak out," said Senator Murray, Chairman of the Senate HELP Employment and Workplace Safety Subcommittee.

"While I'm troubled by the GAO's findings, I was glad to see that President Obama proposed increased funding for Occupational Safety and Health Administration (OSHA) in his budget, which will help strengthen its ability to enforce whistleblower protections. As this report makes clear, the new OSHA leadership will have some serious work to do to ensure it properly investigates and documents complaints of employer retribution. Turning the page on the Bush Administration's dismal record of protecting workers means giving workers back the confidence they need to help root out illegal activities."

According to OSHA's data, of the more than 1,800 cases the agency looked at in 2007, only 21 percent of all investigations resulted in a favorable outcome for whistleblowers. The GAO cautioned that as a result of inadequate tracking of all complaints, the actual proportion of favorable outcomes for whistleblowers may actually be lower.

Woolsey also announced she soon will reintroduce legislation to expand and simplify protections for workers in the private sector who expose illegal actions by their employers. The bill would extend already established whistleblower protections for employees who report violations of critical food safety, drug safety, consumer protection, environmental protection, health care, and homeland security laws.

For more information on this and other topics, consult CCH Employment Practices Guide or CCH Labor Relations.

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