Fired OSHA Whistleblower Claims Investigator Turns Whistleblower

A fired U.S. whistleblower investigator says his old employer didn’t take whistleblowers seriously enough. So he’s lodging a complaint — with the same ex-employer he claims doesn’t take whistleblower allegations seriously enough.

Darrell Whitman was an investigator for the Labor Department for only a few months when a complaint crossed his desk in 2010 from two former Wells Fargo & Co. tellers. They claimed they’d been fired after complaining that the only way to meet bank quotas was to open unauthorized accounts.

Before Whitman even made a call to the fired tellers, he says, a manager told him to drop the matter. Wells Fargo employees kept creating bogus accounts for clients until last year — a revelation that led to the departure of the bank’s CEO, hundreds of millions of dollars in penalties and settlements, and damage to its reputation.

The Wells Fargo episode prompted Senator Al Franken, Democrat of Minnesota, to ask in a letter: Why wasn’t the department’s Occupational Safety and Health Administration paying more attention? A Labor Department official wrote back that investigators in its Whistleblower Protection Program had too many cases to handle. The letters were obtained through an open-records request. “OSHA needs more investigators,” the official wrote in November on behalf of Tom Perez, the outgoing labor secretary.

Labor Department staffing is only part of the problem with the whistleblower unit, according to Whitman, whose complaint puts him in a unique position as a whistleblower-investigator-turned-whistleblower.

In his telling, his superiors told him to drop more than a dozen cases in which workers alleged they’d been fired after reporting matters as serious as shoddy aircraft maintenance and pot-smoking nuclear-plant workers. In an administrative complaint to the Labor Department, Whitman alleges that the department dismissed complaints in deference to influential companies, a practice he said flowed from the upper reaches of the Labor Department.

Investigator’s Firing

Whitman, 70, worked in OSHA’s San Francisco office and was fired in May 2015. The reasons cited included the unauthorized release of information, unauthorized use of a transit card and lack of candor during an investigative process. Whitman disputes those claims. He filed a whistleblower complaint later that month.

The Labor Department declined to comment on Whitman or his claims through spokesman Leo Kay.

“It is absolutely critical that workers who see wrongdoing or hazards within their organization feel safe to raise red flags without retaliation,” Perez, the former labor secretary who now chairs the Democratic National Committee, said in a written response to questions submitted to the DNC. “That’s why I took steps toward strengthening the program last fall by directing the Department of Labor to conduct a top-to-bottom review.”

Dismissal Cases

Whitman estimates that about one in three dismissal cases that workers raise to OSHA have merit, but he says that far fewer were validated by the agency during his time there. His old program found merit in 2 percent of cases from 2006 to 2016, OSHA statistics indicate. An additional 20 percent of cases were ultimately settled between company and worker, with the details often never reaching the public or industry regulators.

“I want to alert people to the role this obscure agency, in a corner of federal government, plays in sustaining corruption,” Whitman, a lawyer with a doctorate in politics and public policy, said in an interview from Chisinau, Moldova, where he has moved to work on a book about Eastern Europe.

The Whistleblower Protection Program may cut a low profile, but the safety net it’s meant to provide is vast. Congress has entrusted it with enforcing 22 statutes aimed at protecting tens of millions of private-sector U.S. workers. The program’s mandate is to review whether employees were wrongfully terminated after complaining, not to pass judgment on their underlying claims.

SEC Program

Among the more successful whistleblower programs belongs to the U.S. Securities and Exchange Commission, which last fiscal year awarded $57 million to people whose reports helped the agency root out financial wrongdoing. But even clients who attract top-shelf lawyers to take on big-ticket SEC cases may face unemployment and industry scorn for a slim chance of a payout years down the road. An SEC whistle-blower can collect as much as 30 percent of any settlement reached.

When private-sector workers bring retaliation claims to the Labor Department, they’re typically seeking lost wages and the return of their former jobs, and have to face off with the legal departments of their former employers. The Labor Department, in its response to Franken, said it was so over-burdened with cases that it was under constant pressure to dispatch them quickly. Investigators for its Whistleblower Protection Program handle more than 10 times as many cases as its inspector general recommends, or over 70 each on average, it wrote.

Whitman, the son of a San Francisco longshoreman and a schoolteacher, came to OSHA after a winding career path that has included radio journalism, Democratic Party organizing, post-graduate work in public policy and university teaching. He took the job as an OSHA investigator after the financial crisis of the late 2000s, figuring his populist leanings and his background in the law and public policy would make him a good fit.

Reviewing Claims

Soon he was poring over claims by workers who said they were punished for speaking up about neglected railways, sleep-deprived truckers or the unsafe transport of explosives on U.S. highways. Then, he says, his bosses weighed in.

“Darrell’s case is a microcosm for a multi-decade, bipartisan betrayal of whistle-blowers by OSHA,” says his lawyer, Tom Devine, of the Government Accountability Project. “We’ve been getting complaints since the 1990s that are mirror images of this one. The breakthrough is the quality of Darrell’s evidence.”

One case Whitman highlights involves Aaron Stookey, who had worked for Lockheed Martin Corp. in Prescott, Arizona, providing pilots with pre-flight briefings on airport closures because of adverse weather and other conditions. Lockheed slashed staff in regional offices, Stookey alleged in his complaint to OSHA, and then pressured the remaining flight-service specialists to field calls from pilots outside their regions without identifying their locations. The result, Stookey said, was that pilots were getting briefings that the specialists weren’t qualified or certified to give.

“Lives are at stake, both in the air and on the ground,” the licensed pilot wrote in a sworn affidavit he filed to support Whitman’s claim.

‘Reasonable Belief’

Stookey says that after he protested, Lockheed Martin managers harassed and eventually fired him. Whitman reviewed the case for several weeks and interviewed former colleagues of Stookey, and concluded in 2012 that Stookey had acted on a “reasonable belief” of wrongdoing and should be reinstated with back pay.

Whitman’s superiors then took control of the case, re-interviewing witnesses and meeting privately with company lawyers, according to Stookey’s affidavit. More than two years later, in late 2014, Stookey received a letter dismissing his case. Unable to get a job in aviation, Stookey says he was struggling financially and, rather than file an appeal, agreed to settle with Lockheed Martin for a half-year’s pay.

Lockheed Martin, through spokesman Mekell Mikell, said it doesn’t comment on personnel matters.

Whitman is now waiting for his case to wind through his old employer. If the Labor Department’s Office of Special Counsel determines there’s “substantial likelihood” that the case has merit, it would become the subject of a full-blown investigation, allowing Whitman to present evidence about what he calls his superiors’ reluctance to ruffle feathers of big business.

In what could be the new administration’s first test of support for the Whistleblower Protection Program, it would then be up to Labor Secretary Alexander Acosta, who took office in April, to review and sign off on the results.