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Congress Focuses Attention on OSHA Penalties and Enforcement Processes

Beveridge & Diamond, P.C. - Client Alert, June 9, 2009

Introduction

In recent years House and Senate committees regularly criticized the Occupational Safety and Health Administration (“OSHA”) under the Bush Administration.  This year, however, with the Democrats in charge both in Congress and at OSHA, Congress appears to be focusing on how it can help a revitalized OSHA.  Two recent Congressional hearings illustrate this change.  Rather than complain that OSHA was not promulgating standards or properly enforcing its requirements, the hearings largely left those matters to the agency itself to manage.  Instead, they concentrated on limitations in the statute OSHA administers, the Occupational Safety and Health Act of 1970 (“OSH Act”) that may be preventing OSHA from doing a better job protecting workers.  A third hearing, on the Bush Administration’s Enhanced Enforcement Program, encouraged OSHA to improve its enforcement targeting.

On April 28, 2009, the 20th anniversary of Workers Memorial Day honoring those who have lost their lives in the workplace, the House and Senate held concurrent hearings on how to help OSHA improve worker safety protection.  The House Education and Labor Committee hearing focused on the Protecting America’s Workers Act (“PAWA”), H.R. 2067, introduced April 23 by Rep. Lynn Woolsey (D-Cal.) with 29 co-sponsors.  The full Committee hearing was followed by a Workforce Protections Subcommittee hearing two days later which revisited many of the same themes.  The April 28 hearing of the Senate Committee on Health, Education, Labor and Pensions (“HELP”) Subcommittee on Employment and Workplace Safety emphasized the need to incorporate the views of victims and their families in addressing specific workplace incidents in the OSHA enforcement process, an aspect of PAWA. 

These hearings took place in a context of increasing attention from lawmakers to workplace safety and health.  As a Senator, Barack Obama advocated for more labor protections and a “reinvigorated” OSHA.  Notably, Obama was a co-sponsor of the Senate counterpart to the PAWA bill in the last Congress, and then-Representative Hilda Solis, now Secretary of Labor, co-sponsored prior House versions.  As a Representative, Hilda Solis was a vocal champion of workers and workplace safety.  Accordingly, many are anticipating increased pressure on OSHA from both the White House and Congress.

House Committee Hearing, April 28: “Are OSHA Penalties Adequate to Deter Health and Safety Violations?”

    Background: Overview of the “Protecting America’s Workers Act”

PAWA has been introduced with minor revisions several times since 2005.  In the current version, H.R. 2067, the bill would amend the OSH Act to, among other things:

  • Apply federal safety standards to federal, state, and local public employees;
  • Increase anti-discrimination and procedural protections for whistleblowers by
    • Expanding protections for refusal to perform work due to a “reasonable apprehension” of serious injury or impairment,
    • Expanding the employee complaint period from 30 to 180 days after an alleged violation,
    • Mandating OSHA investigations of complaints within 60 days, and
    • Offering employees greater opportunities to request a hearing, have other procedural rights, and obtain temporary reinstatement after a preliminary finding by OSHA;
  • Require inspections of incidents involving two or more hospitalizations;
  • Add “victims’ rights” provisions, allowing workers or their families to, inter alia,
    • Contest violation classifications or proposed penalty amounts,
    • Receive reports and other information, and be informed of any notice of contest,
    • Obtain a hearing, prior to OSHA’s decision to issue a citation or take no action, regarding OSHA’s investigations, and
    • Object to proposed settlements on the grounds that they “fail[] to effectuate the purposes of this Act,” allegations to which OSHA must respond with particularity;
  • Increase, and index for inflation, maximum civil penalties
    • For willful or repeat violations, from $70,000 to $120,000, and up to $250,000 for fatalities, and
    • For serious violations or violations resulting in fatalities, from $7,000 to $12,000, and up to $50,000 for fatalities, and
  • Impose new felony penalties for willful violations causing death, with a maximum of 10 years in prison. 

These provisions are similar to those that appeared in previous versions of the bill.  New to the 2009 version are provisions to: 

  • Require OSHA’s recordkeeping rules to prohibit employer practices that “discourage” employee reporting of injuries and illnesses,
  • Require the abatement of alleged serious hazards while an employer contest to a citation is pending, and
  • Expressly permit criminal sanctions against “any responsible corporate officer.”

    Opening Statements

House Education and Labor Committee Chairman George Miller (D-Cal.) lamented what he perceived to be an erosion of workplace protections and a failure to issue needed standards, particularly during the later years of the Bush Administration.  Noting that his committee had held fifteen hearings regarding OSHA since the Democrats took the majority in 2006, Rep. Miller expressed confidence that Secretary of Labor Hilda Solis would bring about substantial improvements, but also urged reforms to the OSH Act, particularly regarding penalties.  Rep. Lynn Woolsey (D-Cal.), Chairwoman of the Subcommittee on Workforce Protections, agreed, outlining PAWA (which she sponsored) and characterizing OSHA penalties as “shockingly low” and ineffective as deterrents. 

Ranking Member Rep. Buck McKeon (R-Cal.), on the other hand, focused his remarks and comments throughout the hearing on his strong preference for a preventative and cooperative, rather than punitive, approach to minimizing risks to workers.  He pointed to statistics showing significantly declining rates of workplace deaths and injuries during the Bush Administration to illustrate that a more cooperative approach could be more effective while reducing complexity and litigation. 

    Witness Statements

Three proponents of OSHA penalty reform testified at the hearing.  The stepmother of a worker killed on the job set the tone with her tearful testimony about how her stepson had died of strangulation at his workplace when a machine that had been modified in violation of OSHA requirements had caught his shirt; the company was ultimately fined $2,250.  Other people apparently affiliated with the group United Support Memorial for Workplace Fatalities lined the front rows behind her, holding posters showing others who had died in workplace incidents. 

Peg Seminario, Director of Safety and Health for the AFL-CIO, testified next, telling the Committee that in 2007, an average of 15 people died every day from workplace injuries and millions of workplace injuries occurred.  She also stated that the average penalty for a serious violation of the OSH Act is less than $1,000 and the average penalty involving worker deaths is $11,300, with extreme variability and few criminal prosecutions—71 since the enaction of the OSH Act in 1970 (resulting in a total of 42 months of prison time). 

Finally, David Uhlmann, an environmental law professor and a former Chief of the Environmental Crimes Section of the Justice Department, argued that OSHA’s standards themselves are fairly strong and manageable and that the main flaw in worker safety protection is the lack of consequences for violations.  He told a story of one case that he prosecuted against a notorious violator of worker protections:  the defendant received 17 years in prison under environmental laws, but did not commit a criminal violation of the OSH Act. 

Lawrence Halprin, an environmental health and safety attorney, offered the opposing view that the current penalty scheme is generally effective and well balanced, as evidenced, in part, by the declining level of workplace casualties and the low level of workplace risk compared to risks in the home or in vehicles.  Mr. Halprin emphasized that perfection will never be achieved since management and workers are human and make mistakes, and blamed any continuing problems on low levels of OSHA funding leading to over-worked inspectors.  He argued that penalties should not be enhanced because the OSHA requirements can be so complex and difficult for employers, especially smaller ones, to understand.

    Questions and Observations

Ranking Member McKeon and Rep. Bill Cassidy (R-La.) reiterated Rep. McKeon’s earlier theme that a return to an adversarial rather than cooperative model would erase the gains in worker safety that have been made since 2001.  Ms. Seminario, however, disputed the accuracy of the injury reporting showing those gains and argued that most of the decreases in worker deaths were in the area of transportation.  Rep. McKeon also expressed concern about the feasibility of distinguishing between employer problems and genuine accidents.  Rep. Tom Price (R-Ga.) focused much of his questioning on whether the definition of “willful” for imposing penalties was overbroad; Mr. Halprin agreed with this concern, but Mr. Uhlmann argued that in the OSH Act it is actually a much higher standard than in other environmental laws. 

Both sides appealed to economic arguments.  Rep. Carolyn McCarthy (D-N.Y.) stated that the country spends $200 billion per year treating injured workers annually, making a taxpayer-oriented argument for some measure of OSH Act reform.  However, Ranking Member McKeon and Rep. Tom Price (R-GA) cautioned against unintended economic consequences from emotionally-driven but under-analyzed Congressional revisions to the law.  Mr. Halprin made the point that while environmental penalties are indeed higher than workplace safety and health penalties, that may indicate that the former are too high, rather than that the latter are too low. 

Other Democrats, who greatly outnumbered their Republican counterparts in attendance at the hearing, made a range of other arguments and appeals for greater worker protections and employer penalties.  A number of workplace incident anecdotes were raised to illustrate the need for greater penalties as credible threats.  Many Representatives focused on the rarity of criminal prosecutions under the OSH Act; Mr. Uhlmann explained that this was because the law lacks felony provisions and also because the criminal misdemeanors only apply to willful actions resulting in deaths, not serious injuries. 

The hearing touched on other issues besides penalty levels, as most Representatives asked about ways to improve PAWA.  Rep. Holt, for example, argued for a resurgence in standard-setting and in inspection funding under the Obama Administration.  Rep. Dina Titus (D-Nev.) inquired into state-run OSHA programs, noting that a series of investigative articles on construction worker deaths at Nevada worksites recently won a Pulitzer Prize.  Ms. Seminario replied that OSHA had not kept up with monitoring state plans after implementation, and welcomed that PAWA would increase federal authority over states.  Mr. Uhlmann also suggested possibly adding citizen suit provisions in PAWA.  Relatively few questions to the panel focused on the treatment and involvement of victims and their families under the OSH Act after workplace incidents.  Chairman Miller closed by noting his intention to report PAWA from the Committee.

The opening statements by Rep. Miller and Rep. Woolsey and the witness statements are available at the Committee’s website at http://edlabor.house.gov/hearings/2009/04/are-oshas-penalties-adequate-t.shtml.

House Subcommittee Hearing, April 30: Improving OSHA’s Enhanced Enforcement Program

A subsequent hearing of the House Education and Labor Committee’s Workforce Protections Subcommittee echoed many of the themes of the earlier full Committee hearing, urging the Obama Administration to improve on the prior Administration’s practices.  The Subcommittee hearing was spurred by an OSHA Office of Inspector General (“OIG”) audit of the agency’s Enhanced Enforcement Program (“EEP”), a Bush Administration program which began in 2003.  The EEP was designed to identify recalcitrant employers and target them for heightened enforcement actions.  The OIG audit report, available at http://www.oig.dol.gov/public/reports/oa/2009/02-09-203-10-105.pdf, found that OSHA did not fully comply with the program’s requirements (designation of EEP cases, inspecting related worksites, follow-up, or enhanced settlement) in 97% of studied cases, possibly leading to dozens of subsequent fatalities.  Elliot Lewis, the U.S. Department of Labor Assistant Inspector General for Audits, testified about the audit. 

The opening statements were again illustrative.  While Chairwoman Woolsey focused her statement on the EEP, its origins, and its flaws in design and implementation as shown by the OIG report, Ranking Member Tom Price very closely hewed to the Republicans’ main theme in the earlier hearing: the benefits of a cooperative approach as evidenced by the declines in recent years in workplace deaths, injuries, and illnesses. 

One prominent difference between the hearings was that a representative from OSHA, Jordan Barab, the Acting Assistant Secretary of Labor for Occupational Safety and Health (and a former senior staffer for the Education and Labor Committee), was invited to speak.  Mr. Barab’s testimony, the last of the day, generally stated agreement with the OIG report, and his responses to questions talked largely about the task forces that had been set up at OSHA to look into increasing penalties and improving statistics.  Rep. Woolsey and Rep. Bishop (D-N.Y.) asked about increasing the severity of OSHA penalties.  Ranking Member Price reiterated his optimism that the cooperative approach of the past Administration had worked well, but Mr. Barab, like Ms. Seminario in the earlier hearing, said that the injury and illness statistics were too low by as much as 200%.

The other panel of witnesses consisted of Mr. Lewis; a relative of  a mechanic who was killed in a workplace accident; Eric Frumin, Health and Safety Coordinator for a partnership of seven unions called Change to Win and former chair of the labor advisory committee in the Bureau of Labor Statistics; and Jason Schwartz, an employment and labor attorney speaking on behalf of the U.S. Chamber of Commerce.  Mr. Frumin characterized EEP’s enforcement as inadequate, asking for expanded investigatory capacity, more national alerts, more corporate-wide reporting, greater requirements for employer follow-up investigations following incidents, and higher penalties, especially criminal sanctions.  Mr. Schwartz highlighted the potential of the EEP to properly focus resources and attention on the highest-risk employers if criteria were clarified and improved, resources for the program were increased (at the expense of less effective enforcement programs such as the main Site-Specific Targeting system), and “creative” enforcement and settlement tools continued to be used.

Rep. Woolsey’s opening statement and the witness statements are available on the Subcommittee’s website at http://edlabor.house.gov/newsroom/2009/04/troubled-worker-safety-program.shtml.

Senate Subcommittee Hearing, April 28: “Introducing Meaningful Incentives for Safe Workplaces and Meaningful Roles for Victims and Their Families”

The Subcommittee on Employment and Workplace Safety of the Senate HELP Committee held a hearing to address increased OSHA penalties as an incentive to prevent workplace fatalities and injuries, and the need to better engage the families of injured or deceased workers in the OSHA process.  There is as yet no Senate counterpart to PAWA, but the hearing was clearly intended to set the stage for introduction of a Senate bill later this year.

Present at the hearing was the Subcommittee Chairwoman Sen. Patty Murray (D-Wash.), Ranking Member Sen. Johnny Isakson (R-Ga.), and Sen. Sherrod Brown (D-Ohio).  Sen. Murray stated in her opening statement that “OSHA has not lived up to its mission,” and that “[m]any of us have been truly concerned about an enforcement strategy that relied too heavily on voluntary employer compliance programs and watered down fines against bad actors.”  The tone of the Senators was critical towards OSHA under the Bush Administration throughout the remainder of the hearing, and sent a clear message to the agency to make changes.  No witness from OSHA itself appeared. 

The witnesses before the Subcommittee all testified that incentives for employers to maintain safe workplaces need to be more meaningful.  Echoing PAWA’s emphasis on willful and repeat violators, the testimony concentrated on the need for OSHA to focus enforcement penalties on employers who flagrantly violate safety standards, so as not to deter “good” employers from reporting or seeking the advice of OSHA.

Dr. Celeste Monforton, Professor in the Department of Environmental and Occupational Health at George Washington University’s School of Public Health and Health Services, emphasized that prevention should be a priority for OSHA’s regulatory program.  She stated that one aspect of prevention—penalties—are currently too weak to compel “bad actors” to comply with OSHA’s standards.  Dr. Monforton also advocated for penalties that result in reputational damage to violators, such as publication on the OSHA website of worker fatalities and nationwide inspection histories. 

James Fredrick, Assistant Director of Health, Safety and Environment at United Steelworkers Union, testified that many employer safety programs provide prizes and awards to workers based on the absence of injuries, which in effect creates disincentives to properly report workplace hazards and injuries.  

Warren Brown, President of the American Society of Safety Engineers, testified that many employers fail to implement appropriate safety programs out of fear of OSHA assessing penalties or criminal prosecution.  Mr. Brown said that OSHA should target its inspection and compliance program towards those employers known to maintain unsafe workplaces in order to help dispel this fear.  Upon questioning by Sen. Murray, Mr. Brown reiterated that higher penalties alone are insufficient, and that OSHA should aim penalties at the most serious offenders.

The other focus of the Subcommittee hearing was the idea of incorporating the families of injured workers in the OSHA enforcement process -- providing strong support for PAWA’s victims’ rights provisions.  Panelists testified that this is necessary because families often have no one from which to seek answers, and  because family members often prove to be very knowledgeable about the particular workplace and can be invaluable during an investigation.  Tammy Miser, founder of United Support Memorial for Workplace Fatalities, testified on behalf of the families of injured or deceased workers that OSHA’s current policies shut family members out of the process.  She also testified that the current average fine for a serious violation is $900, and families believe that a higher penalty should be instituted to be an effective deterrent.  Finally, Ms. Miser stated that OSHA currently collects only half of the fines it initially proposes, which, she asserted, further encourages employers to violate safety standards.

The witness statements are available on the subcommittee’s website at http://help.senate.gov/Hearings/2009_04_28/2009_04_28.html

For more infomation, please contact Mark Duvall ay mduvall@bdlaw.com. This alert was prepared with the assistance of Bina Reddy and Alexandra Wyatt.

For a printable PDF of this article, please click here.

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