Celeste Monforton, an assistant research professor in the Department of Environmental and Occupational Health at the George Washington University School of Public Health & Health Services, and chair of the Occupational Health & Safety Section of the American Public Health Association, offered a number of thoughts and ideas, shared by many OSHA activists, for introducing new incentives for safe workplaces, the title of a Senate hearing held April 28.
Monforton’s ideas could be a harbinger of OSHA reform legislative proposals we’ll see in the next one or two years. And with Democrats controlling the White House and Congress, the odds of these kinds of proposals being enacted into law are greater than they have been for decades.
Monforton stated in her testimony: “Davitt McAteer, former Assistant Secretary of Labor for Mine Safety and Health, notes that employers (and individuals) generally fall into three categories. One group is the top performers: companies that strive for operational excellence. They don’t worry about OSHA inspections; they already have worker injury and illness prevention programs that are grounded in employee involvement and continuous improvement and, frankly, put OSHA’s bare-minimum regulations to shame.
“At the other end of the spectrum are the bad actors. These individuals intentionally disregard the law or are indifferent to it – they act as though the rule of law doesn’t apply to them. Unfortunately, there are employers who fall into this category. These are employers who violate the law, without care or concern for the individuals or communities potentially affected by their decisions. They flout rules designed to protect our air, water and other natural resources, defy minimum wage and overtime rules and collective bargaining rights, and ignore workplace health and safety standards. Employers in this category deserve to get the book thrown at them – not just the book, the whole book shelf.
“Our occupational health and safety (OHS) regulatory system must provide harsh penalties for employers who fall into this category. The system should require the equivalent of ‘points on their permanent record.’ Employers who flagrantly, willfully or repeatedly violate laws designed to protect workers from injuries and illnesses should see their finances and reputations suffer.
“Our system should take advantage of the times when such employers are caught, and capitalize on these grievous situations for their value as a deterrent for companies nationwide. It may not deter other bad actors, but it will catch the attention of those who might be tempted to cut a few corners when under pressure.
“The majority of employers and the majority of people in general are neither stellar performers nor bad actors. We respect laws’ aims and purposes, and we comply with them – most of the time. At times, however, competing forces color our judgment, and we break a rule because we think the likelihood of causing harm is low, as is the risk of getting caught.
“Many employers and their managers know that workplace OHS standards are based on lessons learned and have a public health and safety purpose. But, from time to time, when certain competing forces weigh on them, they make a calculation. They weigh the risk of suffering harm or causing harm to another and the likelihood of getting caught breaking the law. The deterrent effect of OSHA’s penalty system could be amplified to outweigh the influence of competing forces.
“An employer has the right to contest four aspects of the citation: (1) the classification of the violation (e.g., serious, willful); (2) the OSHA rule, standard or statutory clause affixed to the violation; (3) the abatement date; and/or (4) the proposed penalty. Instead of formally contesting one of these aspects, an employer may request to meet with the director of the local OSHA office for an informal conference before the 15-day period to file a notice of contest expires.
“The majority of employers who receive OSHA citations participate in informal conferences, and the majority of OSHA inspection cases are resolved this way. OSHA’s area directors have the authority to reclassify violations (e.g., downgrade from willful to serious, serious to other-than serious); withdraw or modify a citation, an item on a citation, or a penalty; and negotiate the proposed penalty. If both parties agree to the negotiated terms, the employer must then abate the hazard in the agreed upon time period; if no agreement is reached, the employer will likely choose to formally contest it through the OSHRC system and can refrain from correcting the safety problem in the meantime.
“OSHA’s area directors offer penalty reductions and reclassifications of citations (e.g., from serious to other-than-serious) in order to compel prompt correction of the hazard. From a local OSHA manager’s perspective, s/he would rather get the dangerous situation rectified so that workers at the site are protected from potential harm, rather than risk a chance that the employer will contest the citation and penalty.
“OSHA’s inspectors and local managers are truly in a difficult position because the citations and penalties are linked to hazard abatement. Compare the situation of OSHA inspectors and supervisors to that of their colleagues at the Mine Safety and Health Administration (MSHA).
“Under the Mine Act, when a federal mine inspector identifies a violation of an MSHA standard or regulation, mining companies are required to begin fixing the problem immediately.
“Employers in the mining industry have the right to challenge citations and penalties before the Mine Safety and Health Review Commission (MSHRC), but an employer’s decision to litigate an inspector’s finding and/or the proposed penalty does not give him permission to let workplace hazards persist. OSHA needs comparable authority.
“The principle of prevention must be enshrined in our workplace OHS regulatory system. This means providing OSHA the authority to compel immediate abatement of hazards that are known to contribute to serious injury, illness or death. We can’t make advances in preventing harm to workers when our system forces local OSHA staff to bargain with employers for worker protections that they are already required to implement. The informal settlement process should not only expedite abatement of the hazard, but also give OSHA leverage to require employers to implement measures that go above and beyond what is required by OSHA.
“I envision a transformed OSHA penalty system that would offer a more significant deterrent effect and would provide incentives for employers to enhance their OHS systems beyond the bare-minimum OSHA requirements.
“For example, modest reductions in the penalty amount could be reserved exclusively as a negotiation tool to compel abatement of other-than-serious violations. (As noted above, immediate abatement should be required for a class of hazards known to contribute to serious injury, illness or death.) In order for an employer to secure a reclassification of a violation (e.g., from serious to other-than-serious), the firm would be required to implement a meaningful worker injury and illness prevention measure at their worksite (e.g., a worker-involved hazard identification and correction program). Likewise, if an employer sought a reclassification of a willful violation to a serious violation, the firm would be required to implement a comprehensive health and safety management system, or would be required to implement a meaningful and verifiable intervention at all of the firm’s locations.
“The pragmatist in me recognizes that making such changes to the current penalty system is likely to increase the number of citations and penalties that are contested. That’s true. In fact, MSHA staff tell me that since the agency’s penalties were increased substantially in April 2007, the contest rate has quadrupled.
“In order to temper employers’ race to the courtroom (which would be a windfall for attorneys who specialize in employer OHS defense), OSHA could capitalize on the reputation costs to firms of OHS violations, by making accessible to the public in a searchable format data on employers’ specific violations, informal settlement demands, contest history, etc. Potential employees, communities, competitors and the press should have access to employer-specific data, to make an assessment for themselves about a firm.
“Isn’t it time that we, as a nation, proclaim that certain hazardous conditions in workplaces are not tolerated? Just as drunk drivers now receive hefty legal penalties and scorn from their peers, employers should pay dearly for allowing workers inside an unshored trench, permitting unguarded floor openings, tolerating inoperable safety devices and sending workers into confined spaces without proper training and equipment.
”Congress should direct OSHA to publish a list of specific hazardous conditions or work practices that will be deemed automatic willful violations. Citations issued under this provision would not be eligible for reclassification and would remain on the company’s enforcement history record for a minimum of ten years. This congressional mandate would include a requirement for OSHA to update the “automatic willful” list biennially.
“It’s time to capitalize on the prevention potential of OSHA citations. For example, if a serious hazard or violation of a workplace standard is identified in an employer’s workplace, that company should be expected to look for this same hazard in all of its other operations, once it has been put on notice that the hazard exists. With 21st-century communication tools at their fingertips, businesses are well equipped to correct hazards and strengthen prevention programs across all of their sites.
“Congress should mandate when a serious hazard has been identified by OSHA
at one facility, the firm should be required to conduct an audit to determine whether the same hazard exists at other facilities. If comparable hazards or violations are found at another site, citations for those violations should be classified using the new category of “reckless disregard.”
“Congress should give OSHA the authority to compel abatement of hazards regardless of an employer’s decision to contest a citation and/or penalty. Moreover, reclassification of citations (e.g., from serious to other-than-serious) should be reserved for circumstances in which the employer agrees to implement an intervention that goes above and beyond mere compliance with an OSHA standard.
“OSHA should capitalize on the reputation costs to employers who violate OHS standards by making workers, competitor businesses and the public much more aware of companies’ OSHA enforcement history. This would entail offering a web-based system with data on employers’ specific violations, informal settlement demands, contest history, etc.
“Congress should direct OSHA to publish a list of specific hazardous conditions or work practices that will be deemed automatic willful violations and that will not be eligible for “Section 17” designations or other reclassification by OSHA.
“Congress should reset the current statutory minimums and maximums for OSHA civil
penalties and mandate that OSHA index them regularly to account for inflation.
“OSHA’s penalty calculation should include a specific factor that assesses the economic
benefits reaped by an employer for violating health and safety regulations, which will level the economic playing field for firms that invest in progressive, effective OHS labor-management systems.
“Congress should impose an obligation on large firms to address hazards on a company-wide basis, once they have been identified by OSHA at one of the firm’s facilities.
“A new category of violation, “reckless disregard,” should be created for employers who fail to use an OSHA citation as notice of a hazardous condition to be corrected elsewhere.
pending cases. This could be a simple electronic spreadsheet with data fields such as case
number, employer, worksite location, date of OSHA citation, status of litigation, date of final decision and the URL for the final decision text. Making this information available increases the likelihood that frequent and severe offenders will suffer deserved reputational damage.
Friday, May 1, 2009
AFL-CIO details 12-point plan to beef up OSHA enforcement
At a House hearing on April 28, AFL-CIO Director of Safety and Health Peg Seminario outlined a 12-plan to put real “teeth” into OSHA enforcement, as she described. With an administration and Labor Secretary sympathetic to union concerns and grievances, you can be sure Seminario’s views are echoing in the Department of Labor. Acting OSHA chief Jordan Barab’s former boss on Capitol Hill, Rep.George Miller (D-CA), sponsored the April 28 hearing and introduced legislation the previous week to beef up OSHA enforcement. Barab has been quoted in internal OSHA emails as vowing to recharge OSHA enforcement and reinvigorate the agency.
Here are Seminario’s 12 recommendations, taken word for word from her prepared testimony:
1) OSHA can and should take action under the existing law to make enforcement more effective and to enhance penalties for violations that put workers in serious danger and cause death and injury.
2) The entire OSHA penalty policy and formulas should be reviewed and revamped. The agency should use its the full statutory authority to impose meaningful penalties for serious, willful and repeat violations of the law, particularly in cases involving worker deaths.
3) OSHA should cease the practice of issuing “unclassified” violations in all enforcement cases. The Enhanced Enforcement Program (EEP) should be overhauled to actually provide for enhanced enforcement, stiffer penalties and follow-up for employers who persistently violate the law.
4) Federal OSHA should conduct an in-depth review of the enforcement and penalty policies and practices in the state plan states to determine whether they are “as effective as” the federal OSHA enforcement program, as required by law, and take action where plans are found to be deficient.
5) OSHA should greatly expand the access to and disclosure of information on employer’s enforcement records. The list of employers on OSHA’s EEP list should be posted on the web, along with reports about the employers’ violations and progress towards addressing hazards. The OSHA inspection database should be not only searchable by establishment, but also by industry, geographic area, standards violated and types of violations and linked to the data bases on exposure measurements and injury rates reported under the OSHA data initiative.
6) The Congress must also act to address the serious deficiencies in the OSH Act itself. The OSHA civil penalties should be increased – significantly. The enhanced penalties for mine safety adopted by Congress in the MINER Act in 2006 - $60,000 for serious violations and $220,000 for flagrant violations - provide a good guide.
7) There should also be a floor for penalties in fatality cases, to take into account the harm that has been done.
8) These increased penalties should be automatically adjusted for inflation, as is the case with other federal laws, so their impact is not diluted with the passage of time.
9) OSHA’s authority to issue violations and assess penalties for each instance of a violation should be made clear and unambiguous. The greater the number of workers put at risk or in danger or who have been injured or killed due to workplace violations, the greater the penalty should be.
10) Consideration should be given to adopting special provisions to address safety and health practices at the corporate level. Presently, the enforcement structure of the OSH Act is focused primarily at the establishment level, which is inadequate to change the practice and culture at the corporate level. Requirements for corporate officials to address identified violations and hazards on a corporate-wide basis would greatly enhance the Act’s effectiveness, and result in improved workplace conditions and greater protection for workers.
11) The criminal enforcement provisions of the Act must also be strengthened and expanded. At a minimum, criminal violations should be made a felony carrying a significant prison term and monetary fines, and expanded to cover cases where violations cause serious injury to workers. The law should make clear that responsible corporate officials are subject to prosecution in appropriate cases. As a matter of fundamental fairness and sound public policy, the criminal provisions of the Occupational Safety and Health Act should be strengthened so that violations of workplace safety laws carry at least the same potential consequences under our criminal justice system as violations of federal environmental statutes.
12) For these legislative improvements to be effectively implemented, OSHA and the Department of Labor must be given additional resources to enforce the law. The Protecting America’s Workers Act (H.R. 2067), introduced last week by Rep. Miller and Rep.Woolsey with the support of others incorporates many of these needed measures.
Here are Seminario’s 12 recommendations, taken word for word from her prepared testimony:
1) OSHA can and should take action under the existing law to make enforcement more effective and to enhance penalties for violations that put workers in serious danger and cause death and injury.
2) The entire OSHA penalty policy and formulas should be reviewed and revamped. The agency should use its the full statutory authority to impose meaningful penalties for serious, willful and repeat violations of the law, particularly in cases involving worker deaths.
3) OSHA should cease the practice of issuing “unclassified” violations in all enforcement cases. The Enhanced Enforcement Program (EEP) should be overhauled to actually provide for enhanced enforcement, stiffer penalties and follow-up for employers who persistently violate the law.
4) Federal OSHA should conduct an in-depth review of the enforcement and penalty policies and practices in the state plan states to determine whether they are “as effective as” the federal OSHA enforcement program, as required by law, and take action where plans are found to be deficient.
5) OSHA should greatly expand the access to and disclosure of information on employer’s enforcement records. The list of employers on OSHA’s EEP list should be posted on the web, along with reports about the employers’ violations and progress towards addressing hazards. The OSHA inspection database should be not only searchable by establishment, but also by industry, geographic area, standards violated and types of violations and linked to the data bases on exposure measurements and injury rates reported under the OSHA data initiative.
6) The Congress must also act to address the serious deficiencies in the OSH Act itself. The OSHA civil penalties should be increased – significantly. The enhanced penalties for mine safety adopted by Congress in the MINER Act in 2006 - $60,000 for serious violations and $220,000 for flagrant violations - provide a good guide.
7) There should also be a floor for penalties in fatality cases, to take into account the harm that has been done.
8) These increased penalties should be automatically adjusted for inflation, as is the case with other federal laws, so their impact is not diluted with the passage of time.
9) OSHA’s authority to issue violations and assess penalties for each instance of a violation should be made clear and unambiguous. The greater the number of workers put at risk or in danger or who have been injured or killed due to workplace violations, the greater the penalty should be.
10) Consideration should be given to adopting special provisions to address safety and health practices at the corporate level. Presently, the enforcement structure of the OSH Act is focused primarily at the establishment level, which is inadequate to change the practice and culture at the corporate level. Requirements for corporate officials to address identified violations and hazards on a corporate-wide basis would greatly enhance the Act’s effectiveness, and result in improved workplace conditions and greater protection for workers.
11) The criminal enforcement provisions of the Act must also be strengthened and expanded. At a minimum, criminal violations should be made a felony carrying a significant prison term and monetary fines, and expanded to cover cases where violations cause serious injury to workers. The law should make clear that responsible corporate officials are subject to prosecution in appropriate cases. As a matter of fundamental fairness and sound public policy, the criminal provisions of the Occupational Safety and Health Act should be strengthened so that violations of workplace safety laws carry at least the same potential consequences under our criminal justice system as violations of federal environmental statutes.
12) For these legislative improvements to be effectively implemented, OSHA and the Department of Labor must be given additional resources to enforce the law. The Protecting America’s Workers Act (H.R. 2067), introduced last week by Rep. Miller and Rep.Woolsey with the support of others incorporates many of these needed measures.
Heads up: Under-reporting of job injuries to grab the spotlight in 2009
With a friendly administration in the White House and Democrats in control of Congress, unions are pushing hard for changes in how the federal government researches and reports annual injury and illnesses.
States the AFL-CIO in its recently published annual state of job safety and health report: “While government statistics show that occupational injury and illness are declining, numerous studies have shown that government counts of occupational injury and illness are underestimated by as much as 69 percent. A study published in the April 2006 Journal of Occupational and Environmental Medicine that examined injury and illness reporting in Michigan has made similar findings. The study compared injuries and illnesses reported in five different data bases – the BLS Annual Survey, the OSHA Annual Survey, the Michigan Bureau of Workers’ Compensation, the Michigan Occupational Disease reports and the OSHA Integrated Management Information System.
“It found that during the years 1999, 2000 and 2001, the BLS Annual Survey, which is based upon employers’ OSHA logs, captured approximately 33 percent of injuries and 31 percent of illnesses, reported in the various data bases in the state of Michigan. A similar study published in 2008 comparing the injuries reported to state workers’ compensation systems with those reported to the Bureau of Labor Statistics Annual Survey in six states for the years 1998-2001 found similar results.
“The study, which examined reporting in Minnesota, New Mexico, Oregon, Washington, West Virginia and Wisconsin found that the BLS survey captured 50 to 75 percent of the injuries and illnesses that occurred, missing half to a quarter of the injuries and illnesses that occurred in these states. As with the Michigan study, more injuries and illnesses were reported to the state workers’ compensation systems than to the BLS survey.
“The BLS data underestimates the extent of workplace injuries and illnesses in the United States for a variety of reasons. First, the data exclude many categories of workers (self-employed individuals; farms with fewer than 11 employees; employers regulated by other federal safety and health laws; federal, state and local government agencies; and private household workers). This results in the exclusion of more than one in five workers from the BLS Annual Survey. In addition to the built-in exclusions, which BLS is candid about, there also is underreporting for other reasons. There are a number of factors —mostly economic—that help explain underreporting:
“1) Workers’ compensation systems create incentives for employers to underreport by increasing costs for companies that show an increase in injuries.
”2) Firms seeking government contracts may fear being denied a contract if their injury rate is too high.
“3) OSHA’s reliance on injury rates in targeting inspections and measuring performance creates a clear incentive for employers not to record injuries.
“There also are many reasons why workers may not report an injury or illness to their employer:
"1) Economic incentives can influence workers. Employer-implemented programs that offer financial rewards for individuals or departments for going a certain number of days without an injury may discourage workers from reporting. A recent report by the California State Auditor documented one such case where the use of economic incentives on the San Francisco-Oakland Bay Bridge project was identified as a likely cause of significant underreporting of injuries.
“2) Employees do not want to be labeled as accident-prone.
”3) Employers implement programs that discipline or even terminate workers when they report an injury, discouraging workers from reporting.
“4) Workers may be reluctant to apply for workers’ compensation; many others do not knowhow to use the workers’ compensation system.
“5) Foreign-born workers, whether in the country legally or not, face additional barriers to reporting. They may not know how or to whom to report the injury. They may fear being fired or harassed or being reported to the Bureau of Citizenship and Immigration
Services.
The union report continues: “Under the Bush administration, officials at OSHA largely ignored the issue of underreporting, continuing to rely on employer reports of workplace injuries as evidence that policies were working, despite overwhelming evidence that this information is unreliable. Moreover, there were no efforts or initiatives to enhance enforcement on OSHA injury and illness recordkeeping requirements.
“In 2008 and 2009, the problems of underreporting of workplace injuries and illnesses were the subject of Congressional attention and action. In June 2008, the House Education and Labor Committee held an oversight hearing to explore the extent, causes and impact of injury underreporting. The Senate Labor Appropriations Subcommittee reviewed the issue during the hearing on the FY 2009 Department of Labor appropriations bill. The committee then acted to provide funding for a number of initiatives on underreporting. The final FY 2009 omnibus funding bill provided $1 million for an enhanced OSHA recordkeeping enforcement program;$1 million for the Bureau of Labor Statistics to further study problems of injury underreporting; and $250,000 for NIOSH research on underreporting.
“At the request of Senators Edward Kennedy and Patty Murray of the Senate Health, Education, Labor and Pensions Committee and Representatives George Miller and Lynn Woolsey of the House Education and Labor Committee, the Government Accountability Office (GAO) is conducting an in-depth study on underreporting and employer injury recordkeeping practices. The GAO report on the results of the study is expected to be published in the fall 2009. Hopefully these initiatives will provide additional information on the extent and sources of injury and illness underreporting and lead to changes in policies and practices to address problems of injury underreporting,” concludes the report.
States the AFL-CIO in its recently published annual state of job safety and health report: “While government statistics show that occupational injury and illness are declining, numerous studies have shown that government counts of occupational injury and illness are underestimated by as much as 69 percent. A study published in the April 2006 Journal of Occupational and Environmental Medicine that examined injury and illness reporting in Michigan has made similar findings. The study compared injuries and illnesses reported in five different data bases – the BLS Annual Survey, the OSHA Annual Survey, the Michigan Bureau of Workers’ Compensation, the Michigan Occupational Disease reports and the OSHA Integrated Management Information System.
“It found that during the years 1999, 2000 and 2001, the BLS Annual Survey, which is based upon employers’ OSHA logs, captured approximately 33 percent of injuries and 31 percent of illnesses, reported in the various data bases in the state of Michigan. A similar study published in 2008 comparing the injuries reported to state workers’ compensation systems with those reported to the Bureau of Labor Statistics Annual Survey in six states for the years 1998-2001 found similar results.
“The study, which examined reporting in Minnesota, New Mexico, Oregon, Washington, West Virginia and Wisconsin found that the BLS survey captured 50 to 75 percent of the injuries and illnesses that occurred, missing half to a quarter of the injuries and illnesses that occurred in these states. As with the Michigan study, more injuries and illnesses were reported to the state workers’ compensation systems than to the BLS survey.
“The BLS data underestimates the extent of workplace injuries and illnesses in the United States for a variety of reasons. First, the data exclude many categories of workers (self-employed individuals; farms with fewer than 11 employees; employers regulated by other federal safety and health laws; federal, state and local government agencies; and private household workers). This results in the exclusion of more than one in five workers from the BLS Annual Survey. In addition to the built-in exclusions, which BLS is candid about, there also is underreporting for other reasons. There are a number of factors —mostly economic—that help explain underreporting:
“1) Workers’ compensation systems create incentives for employers to underreport by increasing costs for companies that show an increase in injuries.
”2) Firms seeking government contracts may fear being denied a contract if their injury rate is too high.
“3) OSHA’s reliance on injury rates in targeting inspections and measuring performance creates a clear incentive for employers not to record injuries.
“There also are many reasons why workers may not report an injury or illness to their employer:
"1) Economic incentives can influence workers. Employer-implemented programs that offer financial rewards for individuals or departments for going a certain number of days without an injury may discourage workers from reporting. A recent report by the California State Auditor documented one such case where the use of economic incentives on the San Francisco-Oakland Bay Bridge project was identified as a likely cause of significant underreporting of injuries.
“2) Employees do not want to be labeled as accident-prone.
”3) Employers implement programs that discipline or even terminate workers when they report an injury, discouraging workers from reporting.
“4) Workers may be reluctant to apply for workers’ compensation; many others do not knowhow to use the workers’ compensation system.
“5) Foreign-born workers, whether in the country legally or not, face additional barriers to reporting. They may not know how or to whom to report the injury. They may fear being fired or harassed or being reported to the Bureau of Citizenship and Immigration
Services.
The union report continues: “Under the Bush administration, officials at OSHA largely ignored the issue of underreporting, continuing to rely on employer reports of workplace injuries as evidence that policies were working, despite overwhelming evidence that this information is unreliable. Moreover, there were no efforts or initiatives to enhance enforcement on OSHA injury and illness recordkeeping requirements.
“In 2008 and 2009, the problems of underreporting of workplace injuries and illnesses were the subject of Congressional attention and action. In June 2008, the House Education and Labor Committee held an oversight hearing to explore the extent, causes and impact of injury underreporting. The Senate Labor Appropriations Subcommittee reviewed the issue during the hearing on the FY 2009 Department of Labor appropriations bill. The committee then acted to provide funding for a number of initiatives on underreporting. The final FY 2009 omnibus funding bill provided $1 million for an enhanced OSHA recordkeeping enforcement program;$1 million for the Bureau of Labor Statistics to further study problems of injury underreporting; and $250,000 for NIOSH research on underreporting.
“At the request of Senators Edward Kennedy and Patty Murray of the Senate Health, Education, Labor and Pensions Committee and Representatives George Miller and Lynn Woolsey of the House Education and Labor Committee, the Government Accountability Office (GAO) is conducting an in-depth study on underreporting and employer injury recordkeeping practices. The GAO report on the results of the study is expected to be published in the fall 2009. Hopefully these initiatives will provide additional information on the extent and sources of injury and illness underreporting and lead to changes in policies and practices to address problems of injury underreporting,” concludes the report.
AFL-CIO report rips Bush administration’s OSHA management
In its annual report on the state of job safety and health protections and performance, timed to be released on Workers’ Memorial Day, April 28, the AFL-CIO this year savaged the Bush administration’s handling of OSHA affairs.
“For eight years, the Bush administration failed to take action to address major safety and health problems,” according to the report. “Many OSHA and MSHA rules were withdrawn or blocked. The rules that were issued were largely in response to court challenges, congressional mandates or tragedies. New and emerging hazards were not actively addressed. Voluntary efforts were favored over strong enforcement.
“OSHA’s enforcement has remained relatively weak. The dollar amounts of both federal and state OSHA penalties are woefully inadequate, even in cases of workplace fatalities. The OSHAct’s criminal penalty provisions are also very weak and rarely utilized. OSHA funding and staffing has not kept pace with the growth in the nation’s workforce. As a result, OSHA’s ability to provide oversight has diminished with the average frequency of federal OSHA inspections now more than once every 137 years for covered workplaces.
"Congressional oversight and legislative action on job safety and health have increased
significantly with the election of Democratic majorities in the House and the Senate, and are expected to remain strong with the prospects for enactment of legislative improvements now greatly enhanced.”
“When it comes to job safety enforcement and coverage, it is clear that OSHA lacks sufficient resources to protect workers adequately. A combination of too few OSHA inspectors and low penalties makes the threat of an OSHA inspection hollow for too many employers. More than8.8 million workers still are without OSHA coverage.
"OSHA’s resources remain inadequate to meet the challenge of ensuring safe working conditionsfor America’s workers. In FY 2008, there were at most 2,043 federal and state OSHA inspectors responsible for enforcing the law at approximately eight million workplaces. In FY 2008, the799 federal OSHA inspectors conducted 38,652 inspections (727 fewer than in FY 2007), and the 1,244 inspectors in state OSHA agencies combined conducted 57,720 inspections (245 more than in FY 2007).
“At the peak of federal OSHA staffing in 1980, there were 2,951 total staff and 1,469 federal OSHA inspectors (including supervisors). The ratio of OSHA inspectors per one million workers was 14.9. By 2007, there were only 948 inspectors officers, or 6.4 inspectors per million workers, the lowest level in the history of the agency.”
“For eight years, the Bush administration failed to take action to address major safety and health problems,” according to the report. “Many OSHA and MSHA rules were withdrawn or blocked. The rules that were issued were largely in response to court challenges, congressional mandates or tragedies. New and emerging hazards were not actively addressed. Voluntary efforts were favored over strong enforcement.
“OSHA’s enforcement has remained relatively weak. The dollar amounts of both federal and state OSHA penalties are woefully inadequate, even in cases of workplace fatalities. The OSHAct’s criminal penalty provisions are also very weak and rarely utilized. OSHA funding and staffing has not kept pace with the growth in the nation’s workforce. As a result, OSHA’s ability to provide oversight has diminished with the average frequency of federal OSHA inspections now more than once every 137 years for covered workplaces.
"Congressional oversight and legislative action on job safety and health have increased
significantly with the election of Democratic majorities in the House and the Senate, and are expected to remain strong with the prospects for enactment of legislative improvements now greatly enhanced.”
“When it comes to job safety enforcement and coverage, it is clear that OSHA lacks sufficient resources to protect workers adequately. A combination of too few OSHA inspectors and low penalties makes the threat of an OSHA inspection hollow for too many employers. More than8.8 million workers still are without OSHA coverage.
"OSHA’s resources remain inadequate to meet the challenge of ensuring safe working conditionsfor America’s workers. In FY 2008, there were at most 2,043 federal and state OSHA inspectors responsible for enforcing the law at approximately eight million workplaces. In FY 2008, the799 federal OSHA inspectors conducted 38,652 inspections (727 fewer than in FY 2007), and the 1,244 inspectors in state OSHA agencies combined conducted 57,720 inspections (245 more than in FY 2007).
“At the peak of federal OSHA staffing in 1980, there were 2,951 total staff and 1,469 federal OSHA inspectors (including supervisors). The ratio of OSHA inspectors per one million workers was 14.9. By 2007, there were only 948 inspectors officers, or 6.4 inspectors per million workers, the lowest level in the history of the agency.”
“Perfect Storm” for OSHA reform gathers force in Washington
Brace yourself. The Occupational Safety and Health Act stands a better chance now of being seriously amended than at any time since it was first written in 1970. How so? The move by Sen. Arlen Specter of Pennsylvania to the Democratic Party combined with what seems to be the probable court-confirmed victory of Al Franken to take his seat on the Democratic side of the Senate would give the Democrats a filibuster-proof majority in the Senate, plus a majority in the House and of course a Democrat in the White House.
Make no mistake, Congress has larger national priorities than raising OSHA civil penalties and indexing penalties to inflation; setting mandatory minimum penalties for violations involving job fatalities; allowing felony prosecutions against employers who commit willful violation resulting in death or serious injury, and extending those penalties to corporate officers; bringing public sector, railroad and airline employees, and Energy Department contractors under OSHA compliance; and giving accident victims and their families greater participation in enforcement proceedings and the right to contest enforcement decisions — all provisions of the Protecting America’s Workers Act (H.R. 2067) introduced last week in the House, and the soon-to-be reintroduced mirror image version of the bill in the Senate.
Reform bills such as these have been introduced repeatedly in the past decades to no avail, but now a “perfect storm” of forces pushing for expanded and increased OSHA powers is brewing in Washington. For the first time since the OSH Act was written, you have an activist Democratic president, a strongly pro-union Secretary of Labor, an acting OSHA chief who for years was a union safety and health official, and Democratic majorities in the House and Senate. Plus, there is the pent-up demand for fundamental changes to the OSH Act that has been building for decades across a broad spectrum of unions, public health groups, grassroots job safety and health coalitions, academics, researchers, some highly visible safety and health professionals from private industry, and some of the professional societies.
You very well might not see Congressional Democrats push an OSHA reform bill to the House and Senate floors for full votes in 2009, and signed into law by President Obama. Not with the economy in crisis; energy, healthcare, education and immigration legislation big-ticket items; and numerous foreign policy issues. But it could happen in 2010 or 2011, before the politics of the next presidential election rule out controversial actions in 2012 (and anything OSHA touches is controversial).
Here is how Sen. Ted Kennedy (D-MA) explained the forces coming together to suggest the real possibility of OSHA reform, in his opening remarks before a hearing held earlier this week by the Senate Health, Education, Labor and Pensions (HELP) Committee that Kennedy chairs:
“Twenty years ago, workplace safety advocates and families of employees killed on the
job launched Workers Memorial Day — a day of remembrance and advocacy. Since the first observance of Workers Memorial Day, however, almost 125,000 men and women have been killed on the job, an average of almost 6,000 a year. Clearly, we must do much more to protect hard-working Americans.
“In President Obama and Vice President Biden we have leaders who are committed to
worker safety. When he was on the HELP Committee, then-Senator Obama built a record of making workplace safety and health a priority. As President, he is continuing that commitment. He and Secretary Solis have stated they intend to make protecting workers on the job a top priority at the Department of Labor.
“As the Executive Branch does its part, so too must we do ours. Enacting of the
Occupational Safety and Health Act in 1970 was a major step in guaranteeing the basic right of workers to be safe on the job. Since the law was signed, however, we have not substantially amended it to improve worker protections.
“We have, however, learned much in the 40 years since OSHA was enacted and it is long
past time to use this knowledge to make significant reforms. We know that many workers are left out of the Act’s protections, and expanded coverage is essential. We know that whistleblowers are indispensable in bringing safety problems to light, but they won’t come forward unless they have strong protections. A HELP Committee report last year showed that even when employers’ violations of the Act result in workers killed on the job, the employers often walk away with just a slap on the wrist. Clearly, civil and criminal penalties should be increased.
“…the OSHA process fails victims and their families. (They) have an important contribution to make after a workplace accident, but the law gives them no right to participate in OSHA procedures. All too often, the first contact by families with OSHA comes after a case is closed. By then, the citations have been written and the penalties have been assessed, frequently, the family is not sure about what actually happened to their loved one or to the employer who was responsible.
“That’s not right. Victims and their families deserve better. No one cares more about a
workplace fatality than the family of the worker who died. Yet, of all the parties involved, they are the only ones who don’t have a seat at the table.
“It’s also not good policy. Victims and their families often have valuable information
about what happened and why. They may know that workers had complained about unsafe conditions, or that certain supervisors or managers were cutting corners. When victims, families, and their representatives are left out of the process, this critical information is lost. Including victims and their families and representatives is good for them, and it also may also save the lives of other workers.
“These inadequacies in the law need to be corrected, and only Congress can do it. That’s
why we’ve introduced the Protecting America’s Workers Act in the past, and I plan to introduce it again. The principal reform in the bill will give workers and their families and representatives a seat at the table. It also includes sensible reforms to ensure that victims and their families have a right to talk to OSHA before a citation issues, to obtain copies of important documents, to be informed about their rights, and to have an opportunity to have their voices heard before OSHA accepts a settlement that lets an employer off the hook for violations.”
Make no mistake, Congress has larger national priorities than raising OSHA civil penalties and indexing penalties to inflation; setting mandatory minimum penalties for violations involving job fatalities; allowing felony prosecutions against employers who commit willful violation resulting in death or serious injury, and extending those penalties to corporate officers; bringing public sector, railroad and airline employees, and Energy Department contractors under OSHA compliance; and giving accident victims and their families greater participation in enforcement proceedings and the right to contest enforcement decisions — all provisions of the Protecting America’s Workers Act (H.R. 2067) introduced last week in the House, and the soon-to-be reintroduced mirror image version of the bill in the Senate.
Reform bills such as these have been introduced repeatedly in the past decades to no avail, but now a “perfect storm” of forces pushing for expanded and increased OSHA powers is brewing in Washington. For the first time since the OSH Act was written, you have an activist Democratic president, a strongly pro-union Secretary of Labor, an acting OSHA chief who for years was a union safety and health official, and Democratic majorities in the House and Senate. Plus, there is the pent-up demand for fundamental changes to the OSH Act that has been building for decades across a broad spectrum of unions, public health groups, grassroots job safety and health coalitions, academics, researchers, some highly visible safety and health professionals from private industry, and some of the professional societies.
You very well might not see Congressional Democrats push an OSHA reform bill to the House and Senate floors for full votes in 2009, and signed into law by President Obama. Not with the economy in crisis; energy, healthcare, education and immigration legislation big-ticket items; and numerous foreign policy issues. But it could happen in 2010 or 2011, before the politics of the next presidential election rule out controversial actions in 2012 (and anything OSHA touches is controversial).
Here is how Sen. Ted Kennedy (D-MA) explained the forces coming together to suggest the real possibility of OSHA reform, in his opening remarks before a hearing held earlier this week by the Senate Health, Education, Labor and Pensions (HELP) Committee that Kennedy chairs:
“Twenty years ago, workplace safety advocates and families of employees killed on the
job launched Workers Memorial Day — a day of remembrance and advocacy. Since the first observance of Workers Memorial Day, however, almost 125,000 men and women have been killed on the job, an average of almost 6,000 a year. Clearly, we must do much more to protect hard-working Americans.
“In President Obama and Vice President Biden we have leaders who are committed to
worker safety. When he was on the HELP Committee, then-Senator Obama built a record of making workplace safety and health a priority. As President, he is continuing that commitment. He and Secretary Solis have stated they intend to make protecting workers on the job a top priority at the Department of Labor.
“As the Executive Branch does its part, so too must we do ours. Enacting of the
Occupational Safety and Health Act in 1970 was a major step in guaranteeing the basic right of workers to be safe on the job. Since the law was signed, however, we have not substantially amended it to improve worker protections.
“We have, however, learned much in the 40 years since OSHA was enacted and it is long
past time to use this knowledge to make significant reforms. We know that many workers are left out of the Act’s protections, and expanded coverage is essential. We know that whistleblowers are indispensable in bringing safety problems to light, but they won’t come forward unless they have strong protections. A HELP Committee report last year showed that even when employers’ violations of the Act result in workers killed on the job, the employers often walk away with just a slap on the wrist. Clearly, civil and criminal penalties should be increased.
“…the OSHA process fails victims and their families. (They) have an important contribution to make after a workplace accident, but the law gives them no right to participate in OSHA procedures. All too often, the first contact by families with OSHA comes after a case is closed. By then, the citations have been written and the penalties have been assessed, frequently, the family is not sure about what actually happened to their loved one or to the employer who was responsible.
“That’s not right. Victims and their families deserve better. No one cares more about a
workplace fatality than the family of the worker who died. Yet, of all the parties involved, they are the only ones who don’t have a seat at the table.
“It’s also not good policy. Victims and their families often have valuable information
about what happened and why. They may know that workers had complained about unsafe conditions, or that certain supervisors or managers were cutting corners. When victims, families, and their representatives are left out of the process, this critical information is lost. Including victims and their families and representatives is good for them, and it also may also save the lives of other workers.
“These inadequacies in the law need to be corrected, and only Congress can do it. That’s
why we’ve introduced the Protecting America’s Workers Act in the past, and I plan to introduce it again. The principal reform in the bill will give workers and their families and representatives a seat at the table. It also includes sensible reforms to ensure that victims and their families have a right to talk to OSHA before a citation issues, to obtain copies of important documents, to be informed about their rights, and to have an opportunity to have their voices heard before OSHA accepts a settlement that lets an employer off the hook for violations.”
Could it be? OSHA senile at 38?
Regulatory bodies, like people, have distinct life cycles
…regulatory bodies, like the people who comprise them, have a marked life cycle. In youth, they are vigorous, aggressive, evangelistic, and even intolerant. Later they mellow, and in old age — after a matter of ten or fifteen years — they become, with some exceptions, either an arm of the industry they are regulating or senile.
John Kenneth Galbraith, Ph.D, “The Great Crash, 1929,” published originally in 1955
Could it be the venerable good doctor, a titan of economics, possessed the prescience to be describing the Occupational Safety and Health Administration 16 years before it began operation in 1971? And more importantly, could he have been explaining why so many occupational safety and health professionals today are disengaged from OSHA?
The profession’s disconnect from OSHA is palpable, almost raw with frustration. “Leave me the hell alone and let me do what I know how to do,” emailed a pro with almost four decades in the field. He laments the agency’s “misleading and often confusing direction” in recent years, and the lack of any significant regulatory agenda items “or public outcries to fix what may not be broken.”
“OSHA is almost 39 years old now” writes Tom Lawrence, whose safety and health career pre-dates the birth of the agency, in an email to us. “Politics in abundance and budgets in scarcity. Potential for significant change? Not likely.”
It’s time to cut the ties that have bound professionals to Washington for almost 40 years, argues Lawrence, and press ahead with innovation and resourceful not in abundance inside the beltway.
Who’s in charge here?
Or as American Industrial Hygiene Association Director of Government Affairs Aaron Trippler recently wrote in his newsletter: “Many of those who live and work here, including yours truly, also shake our head when we see Congress and the agencies attempt to do the work of governing.” Trippler went on to describe the consultant hired by OSHA who worked for 27 months, ending in mid-2008. His fee: $572,946 billed for labor and $108,434 in compensation for his commuting costs. “This was more pay than that of the assistant secretary of labor for OSHA, the Secretary of Labor, the Vice President of the U.S., or any member of Congress. Who in the heck is in charge?” asks Trippler.
That confusion, in terms of OSHA’s management, is the one issue regarding the agency labor and business camps both can agree on. But that’s as far as any consensus goes. Borrowing from Galbraith’s depiction of a federal regulator, labor will argue the agency has devolved into an arm of the industry it regulates. Numerous businesses look at OSHA’s actions or inaction and see bureaucratic senility.
An agency evolves
OSHA’s life cycle can be traced in a way that parallels Galbraith’s evolutionary stages. First, in its youthful heyday of the 1970s, the agency was vigorous and aggressive with inspections and standards-setting. After a bureaucratic start-up phase, committed health and safety experts led OSHA — Dr. Mort Corn (1975-1977) and Dr. Eula Bingham (1976 – 1980). Dr. Bingham, the most fervent regulator and activist agency head ever, was evangelical in her endeavors to protect workers. Meanwhile, a growing number of employers, employer associations, and Republican politicians found OSHA’s actions increasingly “intolerant.”
Surprisingly, the agency did not “mellow” during the 1980s Reagan years and the term of President George H.W. Bush (1988-1992). “I remember the ‘80s and early ‘90s when we saw a flurry of new standards — hazard communication, respiratory protection, lockout-tagout, process safety management — and thought that OSHA had a decent handle on driving safety improvements at the national level,” writes Jeff LaBelle, a safety and risk assessment manager, in an email to us. “Since then we’ve seen much too little and much too late.”
Ironically, the mellowing and winding-down occurred during a Democratic regime, the two terms of President Clinton (1992-2000). It was the vision of Clinton’s Vice President Al Gore that a more mature OSHA would reinvent itself as a customer-focused, problem-solving partner with industry. In this context, OSHA’s much ballyhooed ergonomics standard, rushed out the door mere days after Gore lost the 2000 election, could be considered a mid-life crisis binge.
The “much too little and much too late” phase of OSHA’s evolution, which critics peg from 1992 until the present, could be interpreted, using Galbraith’s life cycle of a regulator, as the disorientation and cognitive failures that accompany aging. But although OSHA chiefs Joe Dear, Charles Jeffress and John Henshaw during that time were attacked on many counts, senility never came up; all were in their prime when at the agency. Critics contend that as OSHA has aged, it has become more than ever an arm of the industry it regulates. Ergo, the never-ending announcements of industry alliances in recent years. And, to be sure, a fantastically rich web site with deep resources and “tools” to help businesses.
Life on the beach?
So what have we here in 2009?
Will OSHA continue to slumber in what Galbraith would ascribe as its sunset years? Overworked and under-staffed safety and health professionals in industry are not of a mind to wake the agency and confront possibly a slew of new standards. That’s not going to happen anyway, not with an army of attorneys at the disposal of the National Association of Manufacturers and the U.S. Chamber of Commerce.
What cannot be allowed to happen is for OSHA to continue to drift listlessly in its old (by Galbraith’s definition) age. Big business is global, with its workers at risk around the world and up and down supply chains, but OSHA is not an energetic global regulatory thought-leader. It must be.
And small business, which still dominates the domestic workplace landscape, cannot continue to put workers at risk, increasingly non-English speaking employees, through ignorance, lack of resources, or knowing non-compliance.
In this economy, retirees return to work and workers put off retirement. Old age ain’t what it used to be. Yes, there’s much talk of the graying of OSHA, of the coming wave of retirements. Still, hundreds if not thousands of careerists at OSHA aren’t ready to cash it in. They need strong, vibrant leadership. And here in 2009, when OSHA needs direction and vision, the safety and health profession can’t be caught “decoupling” and leaving the agency to close its eyes and stretch out on a beach chair somewhere.
…regulatory bodies, like the people who comprise them, have a marked life cycle. In youth, they are vigorous, aggressive, evangelistic, and even intolerant. Later they mellow, and in old age — after a matter of ten or fifteen years — they become, with some exceptions, either an arm of the industry they are regulating or senile.
John Kenneth Galbraith, Ph.D, “The Great Crash, 1929,” published originally in 1955
Could it be the venerable good doctor, a titan of economics, possessed the prescience to be describing the Occupational Safety and Health Administration 16 years before it began operation in 1971? And more importantly, could he have been explaining why so many occupational safety and health professionals today are disengaged from OSHA?
The profession’s disconnect from OSHA is palpable, almost raw with frustration. “Leave me the hell alone and let me do what I know how to do,” emailed a pro with almost four decades in the field. He laments the agency’s “misleading and often confusing direction” in recent years, and the lack of any significant regulatory agenda items “or public outcries to fix what may not be broken.”
“OSHA is almost 39 years old now” writes Tom Lawrence, whose safety and health career pre-dates the birth of the agency, in an email to us. “Politics in abundance and budgets in scarcity. Potential for significant change? Not likely.”
It’s time to cut the ties that have bound professionals to Washington for almost 40 years, argues Lawrence, and press ahead with innovation and resourceful not in abundance inside the beltway.
Who’s in charge here?
Or as American Industrial Hygiene Association Director of Government Affairs Aaron Trippler recently wrote in his newsletter: “Many of those who live and work here, including yours truly, also shake our head when we see Congress and the agencies attempt to do the work of governing.” Trippler went on to describe the consultant hired by OSHA who worked for 27 months, ending in mid-2008. His fee: $572,946 billed for labor and $108,434 in compensation for his commuting costs. “This was more pay than that of the assistant secretary of labor for OSHA, the Secretary of Labor, the Vice President of the U.S., or any member of Congress. Who in the heck is in charge?” asks Trippler.
That confusion, in terms of OSHA’s management, is the one issue regarding the agency labor and business camps both can agree on. But that’s as far as any consensus goes. Borrowing from Galbraith’s depiction of a federal regulator, labor will argue the agency has devolved into an arm of the industry it regulates. Numerous businesses look at OSHA’s actions or inaction and see bureaucratic senility.
An agency evolves
OSHA’s life cycle can be traced in a way that parallels Galbraith’s evolutionary stages. First, in its youthful heyday of the 1970s, the agency was vigorous and aggressive with inspections and standards-setting. After a bureaucratic start-up phase, committed health and safety experts led OSHA — Dr. Mort Corn (1975-1977) and Dr. Eula Bingham (1976 – 1980). Dr. Bingham, the most fervent regulator and activist agency head ever, was evangelical in her endeavors to protect workers. Meanwhile, a growing number of employers, employer associations, and Republican politicians found OSHA’s actions increasingly “intolerant.”
Surprisingly, the agency did not “mellow” during the 1980s Reagan years and the term of President George H.W. Bush (1988-1992). “I remember the ‘80s and early ‘90s when we saw a flurry of new standards — hazard communication, respiratory protection, lockout-tagout, process safety management — and thought that OSHA had a decent handle on driving safety improvements at the national level,” writes Jeff LaBelle, a safety and risk assessment manager, in an email to us. “Since then we’ve seen much too little and much too late.”
Ironically, the mellowing and winding-down occurred during a Democratic regime, the two terms of President Clinton (1992-2000). It was the vision of Clinton’s Vice President Al Gore that a more mature OSHA would reinvent itself as a customer-focused, problem-solving partner with industry. In this context, OSHA’s much ballyhooed ergonomics standard, rushed out the door mere days after Gore lost the 2000 election, could be considered a mid-life crisis binge.
The “much too little and much too late” phase of OSHA’s evolution, which critics peg from 1992 until the present, could be interpreted, using Galbraith’s life cycle of a regulator, as the disorientation and cognitive failures that accompany aging. But although OSHA chiefs Joe Dear, Charles Jeffress and John Henshaw during that time were attacked on many counts, senility never came up; all were in their prime when at the agency. Critics contend that as OSHA has aged, it has become more than ever an arm of the industry it regulates. Ergo, the never-ending announcements of industry alliances in recent years. And, to be sure, a fantastically rich web site with deep resources and “tools” to help businesses.
Life on the beach?
So what have we here in 2009?
Will OSHA continue to slumber in what Galbraith would ascribe as its sunset years? Overworked and under-staffed safety and health professionals in industry are not of a mind to wake the agency and confront possibly a slew of new standards. That’s not going to happen anyway, not with an army of attorneys at the disposal of the National Association of Manufacturers and the U.S. Chamber of Commerce.
What cannot be allowed to happen is for OSHA to continue to drift listlessly in its old (by Galbraith’s definition) age. Big business is global, with its workers at risk around the world and up and down supply chains, but OSHA is not an energetic global regulatory thought-leader. It must be.
And small business, which still dominates the domestic workplace landscape, cannot continue to put workers at risk, increasingly non-English speaking employees, through ignorance, lack of resources, or knowing non-compliance.
In this economy, retirees return to work and workers put off retirement. Old age ain’t what it used to be. Yes, there’s much talk of the graying of OSHA, of the coming wave of retirements. Still, hundreds if not thousands of careerists at OSHA aren’t ready to cash it in. They need strong, vibrant leadership. And here in 2009, when OSHA needs direction and vision, the safety and health profession can’t be caught “decoupling” and leaving the agency to close its eyes and stretch out on a beach chair somewhere.
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