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State doesn't investigate whistleblower cases properly, review finds

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State labor officials routinely fail to properly investigate whistleblower complaints of retaliation in the workplace, according to a federal review.

A harsh evaluation by the U.S. Department of Labor found that state investigators lack basic training and often fail to perform standard required tasks such as interviewing witnesses. The review [PDF] examined the work of the state Division of Labor Standards Enforcement, which investigates complaints from workers who say they were punished for reporting labor or safety violations.

In more than half of the cases reviewed in the audit, investigators did not interview the person who submitted the whistleblower complaint. Investigators frequently didn't interview other witnesses either and sometimes simply accepted a company's defense. 

"The investigators' failure to conduct these interviews left many key questions unanswered and resulted in inadequate investigations and analysis," the report states.

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The California Department of Industrial Relations, which oversees the Division of Labor Standards Enforcement, has asked for additional time to respond to the federal evaluation, and until it does, “we’re not going to have any statement,” said spokeswoman Erika Monterroza. “Until that time, it’s under review.”

The federal monitoring report examined 10 percent of the 210 whistleblower retaliation cases closed in the 2010-11 fiscal year.

The review, released Aug. 24, faulted investigators for failing to record interviews, analyze evidence, organize case files and close cases in time. None of the state's five investigators had attended the federal government's Basic Whistleblower Investigations course, it said.

In several cases in which state officials dismissed a worker's complaint, "the determinations reached in these cases were not based on relevant evidence available and sound legal reasoning," according to the report. In other cases, "the investigator dismissed the case based on sparse or incomplete evidence."

Worker advocates said the report confirms that the system is broken.

"I was surprised at the multitude of ways in which the investigators are not doing their job," said Gail Bateson, executive director of Worksafe, an Oakland-based advocacy organization.

Bateson said problems with the state's investigations mean that workers aren't protected when they speak up about unsafe workplace conditions.

"Unless you feel protected from retaliation, you’re not going to exercise any of your other health and safety rights," she said. "You’re not going to complain about problems."

But Auburn attorney Stephen Holden, who defends employers in labor cases, said workers with legitimate complaints have plenty of help from lawyers looking to sue companies. The complaints that go to the state often don't hold up, he said.

"If there is even a window of merit to a case, attorneys get excited about those kinds of cases and would pursue them aggressively," he said. "There's plenty of incentive in the system, so if the government weren't investigating any of them, so what?"

Worker advocates were delighted last year when Gov. Jerry Brown appointed Julie Su, a workers' rights attorney, to be labor commissioner, overseeing the division that investigates whistleblower complaints. Su began her job midway through the period covered by the federal audit.

Su has made improvements but has a long way to go, said Lilia Garcia-Brower, executive director of the Maintenance Cooperation Trust Fund, which investigates labor violations in the janitorial industry.

"I like what I've seen in the changes that she’s taken, but I’m not saying that it’s perfect, and there’s definitely challenges," Garcia-Brower said.

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