On April 30, 2009, the Workforce Protections Subcommittee of the House Education and Labor Committee held a hearing on “Improving OSHA’s Enhanced Enforcement Program.” OSHA implemented its enhanced enforcement program (EEP) in 2003 to identify employers with poor compliance records and target them for heightened scrutiny, including follow-up inspections, inspections of other work sites, and more stringent settlement agreements.

The hearing focused on a recent report by the DOL’s Office of Inspector General (OIG), which concluded that OSHA has failed to properly implement and enforce the EEP. Subcommittee chair Lynn Woolsey (D-CA), stated that since EEP’s implementation, “it’s clear that the EEP’s original design is flawed, and that OSHA under the Bush Administration did not even implement the program as intended.”

Elliott P. Lewis, Assistant Inspector General for Audit at the OIG discussed the EEP audit, testifying that the “overall conclusion was that OSHA did not always properly identify and conduct EEP inspections.” The audit found that in 97 percent of the EEP qualifying cases sampled, OSHA did not comply with the requirements of the program. Lewis identified a 2008 revised EEP directive as having reduced the number of qualifying cases by incorporating a qualifying history component in identifying which employers to target. 

Jordan Barab, Acting Assistant Secretary for OSHA, testified that OSHA has established an EEP Revision Task Force to design a new program, preliminary titled the Severe Violators Inspection Program (SVIP). Barab explained that “SVIP will be a comprehensive revision of the existing EEP, focusing more on large companies and less on small businesses.” Barab also announced that OSHA is suspending the previous administration’s practice of establishing goals for new Voluntary Protection Program sites and alliances.

Jason C. Schwartz, an attorney with Gibson, Dunn & Crutcher, LLP and member of the U.S. Chamber of Commerce’s Labor Relations Committee, testified on behalf of the U.S. Chamber of Commerce. While the Chamber disagreed with certain aspects of the OIG report, Schwartz argued that more resources should be directed to EEP and less towards OSHA’s Site-Specific Targeting inspection program, which targets workplaces that have reported the highest injury and illness rates, because “it often targets conscientious employers who report even minor workplace related injuries.”

Eric Frumin, Health and Safety Coordinator at Change to Win, testified that “there appears to be a growing pattern of large corporations ignoring or avoiding their obligations to assure a safe workplace,” and argued for expanded investigatory capacity, company reporting requirements, and stronger criminal sanctions, such as those included in the recently introduced Protecting America’s Workers Act (H.R. 2067).

Core Provisions: The ALERT Act would amend the Worker Adjustment and Retraining Notification (WARN) Act to require notifications under the Act for mass layoffs that occur at more than one worksite for an employer. Under the WARN Act, “mass layoff’ is currently defined as a reduction in force that results in an employment loss at a single worksite during any 30-day period for (1) at least 500 full-time employees or (2) at least 50 full-time employees if those employees make up at least 33 percent of the full-time employees. The ALERT Act would amend the definition of “mass layoff” to cover an employment loss of this size not just at a single site, but for a single employer at more than one worksite. The bill also increases penalties for employers that order a plant closing or mass layoff in violation of the WARN Act by providing for double back pay for each day of violation.

Status: H.R. 2077 was introduced by Rep. Luis Gutierrez (D-IL) on April 23, 2009 and referred to the Committee on Education and Labor. 

On April 28, 2009, the Senate Committee on Health, Education, Labor & Pensions and the House Committee on Education and Labor each held hearings on workplace safety. Held on Workers’ Memorial Day, which honors workers who fall sick or are killed on the job, the hearings focused on enhancing enforcement under the Occupational Safety and Health Act. The House recently introduced legislation that would significantly enhance OSHA enforcement and penalties, and similar legislation is expected to be introduced in the Senate.

The House Education and Labor Committee’s hearing was entitled “Are OSHA’s Penalties Adequate to Deter Health and Safety Violations?” During the hearing, witnesses voiced their opinions regarding the Protecting America’s Workers Act (PAWA) (H.R. 2067), introduced last week by Rep. Lynn Woolsey (D-CA), chair of the House Subcommittee on Workforce Protections.  The Act is intended to increase penalties and enforcement and would expand criminal penalties to cover willful violations that result in serious injury, not only those that result in death. In addition, the Act would increase civil penalties and make certain willful violation felonies subject to up to 10 years of jail time.

In her opening remarks to the hearing, Ms. Wooley spoke in favor of her proposed legislation.  She stated that current OSHA penalties are “shockingly low. It is rare that an employer gets more than a slap on the wrist, even when a worker dies or is seriously injured, even in the most egregious cases.”

Peg Seminario, Director of Safety and Health at the AFL-CIO, testified there have been 350,000 workplace deaths since the OSH Act was enacted in 1970. During the same time period, there have been 71 prosecutions with a total of 42 months of jail time.

David Uhlmann, a law professor at the University of Michigan Law School and former Chief of the Department of Justice’s Environmental Crimes Section, testified that few OSHA violations are prosecuted because federal prosecutors focus their limited resources on felonies, not misdemeanors. Encouraging the effort to classify certain violations as felonies, he explained, “If they are just misdemeanors, you’re not going to see the prosecutions, I can guarantee you that.”

Also testifying at the hearing was Rebecca Foster, the stepmother of Jeremy Foster, who died at 19 as a result of a workplace safety violation at a timber company in Arkansas. While OSHA informed Foster’s family that it would fine the company $4,500 for the violation, the family later learned from a news report that the fine had been reduced to $2,250. Ms. Foster’s testimony encouraged a greater role for workers’ families in decisions to modify citations. PAWA would provide for such a role by requiring OSHA to inform affected employees or their representatives of any proposed modification of a citation and allow affected employees or their representatives to appeal the modification.

Republican members of the committee argued the focus should be less on punishment and more on prevention and cooperation with employers. Ranking Republican McKeon argued that a “gotcha approach” would not be effective in reducing workplace fatalities. Lawrence Halprin, an attorney at Keller and Heckman, LLP testified that “the currently penalty scheme provided by the OSH Act is adequate to achieve the goals of the OSH Act” and argued that OSHA has enforcement mechanisms that have not used effectively to date.

Similar to the House hearing, the Senate hearing focused on methods of improving worker safety.  The Senate HELP Employment and Workplace Safety Subcommittee’s hearing was entitled “Introducing Meaningful Incentives for Safe Workplaces and Meaningful Roles for Victims and Families.” 

Dr. Celeste Monforton, Ph.d., chair of the Occupational Health & Safety Section of the American Public Health Association and assistant research professor in the Department of Environmental and Occupational Health at the George Washington University School of Public Health & Health Services, advocated for tougher and more diverse penalties against employers who are repeat violators of the law.  Dr. Monforton suggested that OSHA not only apply severe monetary penalties to employers who break the law, but also use its website to make the public, workers, and competitor businesses more aware of such employers.  Dr. Monforton proposed that OSHA make prominently available, and easily searchable: (1) details of fatalities, serious injuries, or illnesses among a company’s employees or contractors; (2) evidence that a company’s management allowed employees to be exposed to serious safety or health hazards in violation of OSH standards; and (3) data depicting the company’s nationwide inspection history, violations cited, performance in abating hazards promptly, and history of contesting citations and penalties.  She stated the risk of reputational damage would likely be a great deterrent to potential violators.

Similar to the House hearing, Senate witnesses testified that the OSHA investigation process and legal proceedings must be made accessible to family members of the victim. James Frederick, Assistant Director of the United Steelworkers’ Health, Safety, and Environment Department in Pittsburgh and a proponent of the Protecting America’s Workers Act, stated that, if passed, the bill would provide “an important link for injured workers and families of workers killed on the job” to the agency.  Tammy Miser, founder of the United Support and Memorial for workplace Fatalities, also stressed the importance of family members being involved in OSHA’s accident investigation process.  She suggested that family members receive a representative to act on their behalf.  The representative would act as a conduit between the family and OSHA, supplying family member information that may assist with the agency’s investigation and keeping family members informed about the progress of the investigation. Miser stated that family members should have access to all documents gathered and produced as part of the accident investigation. In addition, Miser advocated for steeper penalties for employers who violate the law, noting the average OSHA fine is $900.03 for a serious violation.

Warren Brown, President of the American Society of Safety Engineers, cautioned the subcommittee to be careful when making changes to OSHA’s enforcement mechanisms and processes.  Brown pointed out that the vast majority of employers willingly implement safety programs “because it is the right thing to do.”  Brown suggested that OSHA direct its limited enforcement resources “where the greatest gains in safety can be achieved” - towards repeat violators of safety standards.

Core Provisions: This legislation is intended to increase employers’ reporting requirements under the Occupational Safety and Health Act. Within 12 months of its enactment, this legislation would require the Secretary of Labor to prescribe regulations mandating that employers, who maintain more than one establishment and employ at least 500 employees, report work-related deaths, injuries, and illnesses. Employers would need to maintain accurate records and make periodic reports to the Secretary of Labor on (1) the number and rates of work-related deaths, injuries, and illnesses and (2) compliance data regarding inspections conducted by OSHA. The regulations would also require employers to identify each establishment and whether each establishment has been acquired, sold, or transferred since the last report.

Status: H.R. 2113 was introduced by Rep. Phil Hare (D-IL) on April 27, 2009 and referred to the House Committee on Education and Labor.

On April 27, 2009, President Barack Obama nominated Phyllis C. Borzi as Assistant Secretary of Labor for the Employee Benefits Security Administration. EBSA is responsible for developing policies and regulations regarding pension, health, and other employee benefit plans as well as providing compliance assistance for these policies and regulations.

Borzi currently serves as a research professor in the Department of Health Policy, School of Public Health and Health Services, The George Washington Medical Center where she focuses on employee benefit plans, the uninsured, managed care, and legal barriers to developing health information technology. She also serves as of counsel with O’Donoghue & O’Donoghue where she specializes in ERISA and discrimination matters.

Prior to this role, Borzi served as pension and benefit counsel for the U.S. House of Representatives, Subcommittee on Labor-Management Relations of the Committee on Education and Labor for 16 years. Borzi has also served in numerous positions dealing with employee benefit plans, workers’ compensation, and insurance reform, including as a member on the Presidential Task Force on Health Care Reform in 1993.

President Obama first announced Borzi’s intended nomination on March 25, 2009.

On April 24, 2009, President Obama announced he intends to nominate Craig Becker and Mark Pearce to the National Labor Relations Board (”NLRB”). The five member Board decides cases under the National Labor Relations Act (NLRA).

Upon confirmation by the Senate, Becker and Pearce, together with longtime Board-member and current Chairperson Wilma Liebman, will comprise a Democratic working majority. The NLRB has operated with only two members, Liebman and Republican Peter Schaumber, since January 2008 as a result of a deadlock between former-President Bush and Senate Democrats. President Obama has not yet announced who he intends to select for the fifth, and final position, on the Board.

Becker currently serves as the Associate General Counsel to the AFL-CIO and the SEIU. Becker has practiced labor law for the past 27 years and has taught at the UCLA, University of Chicago, and Georgetown Law Schools. Becker has argued labor and employment cases before the United States Supreme Court and multiple federal courts of appeal and previously clerked for the Honorable Donald P. Lay, Chief Judge of the United States Court of Appeals for the Eighth Circuit. A summa cum laude graduate of Yale College in 1978 and Yale Law School in 1981, Becker was an Editor of the Yale Law Journal.

Pearce is a union-side labor lawyer and founding partner of the law firm Creighton, Pearce, Johnsen & Giroux in Buffalo, New York and has practiced union-side labor and employment law before multiple state and federal agencies, including the NLRB, and the state and federal courts. Pearce is a Fellow in the College of Labor and Employment Lawyers and has taught at Cornell University. In 2008, Pearce was appointed to serve as a Board Member on the New York State Industrial Board of Appeals, a state labor board. Pearce has previously practiced labor and employment law at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP and worked as an attorney and District Trial Specialist for the NLRB in Buffalo, NY. Pearce received his J.D. from State University of New York, and his B.A. from Cornell University.

The White House has not yet indicated when President Obama’s final nominations will be announced.

Core Provisions: The Savings Recovery Act is intended as a measure to help rebuild retirement, college, and personal savings. The legislation would increase the monthly exempt amount under the Social Security earnings test for individuals who have not reached retirement age. The bill also includes provisions that would exclude certain dividends and long-term capital gains of noncorporate taxpayers and increase the limitation on capital losses of noncorporate taxpayers. To increase opportunities for retirement savings, the bill would eliminate marriage penalties in income limitations with respect to individual retirement plan contributions; increase the amount that can be contributed to retirement plans; and increase the amount of allowed catch-up contributions to retirement plans, among other things. The legislation also targets savings for higher education by providing a credit for contributions to 529 plans.

Status: H.R. 2021 was introduced by Rep. Boehner (R-OH) on April 22, 2009 and referred to the Committees on Ways and Means and Education and Labor.

Core Provisions: This legislation would amend the Occupational Safety and Health Act to expand coverage under the Act, increase protections for whistleblowers, and increase penalties for certain violators. The legislation would extend OSHA coverage to state, local, and federal employees and would enhance coverage for employees in certain industries, such as the airline and railroad industries. The bill would also increase penalties for repeated and willful violations, including the possibility of felony charges when an employer’s repeated and willful violations result in serious injury or death.  Under the proposed legislation, workers and their families would also have the right to challenge reductions in fines and other penalties.

Status: H.R. 2067 was introduced by Rep. Lynn Woolsey (D-CA) on April 23, 2009 and was referred to the Committee on Education and Labor.  The Committee will hold a hearing on April 28, 2009, which is Workers’ Memorial Day, on whether OSHA penalties are sufficient to deter health and safety violations.

Core Provisions: The Green Jobs Improvement Act (H.R.6220) would amend the Workforce Investment Act of 1998 to make non-union training programs eligible for federal funding under the “Green Jobs” program. 

The Green Jobs program provides funding for energy efficiency and renewable energy worker training programs. Participation in the Green Jobs program is currently restricted to entities that partner with labor organizations. The proposed legislation would remove this eligibility requirement, opening the energy-oriented training funding to a broader range of employers and training partners. Under the proposed language, the scope of participation would include “industry and may include workforce investment boards, community-based organizations, qualified service and conservation corps, educational institutions, small businesses, public employers, cooperatives, State and local veterans agencies, veterans service organizations, and labor organizations, including joint labor-management training programs.”

Status: H.R. 2026 was introduced by Rep. John Kline (R-MN) on April 22, 2009 and referred to the Committee on Education and Labor. The bill currently has 12 cosponsors. The full text of the bill has not yet been released.  Rep. Kline introduced a similar bill in the 110th Congress, but that bill failed to make it out of committee. 

Core Provisions: The New Employee Verification Act would replace the government’s current E-Verify program with the Electronic Employment Verification System (EEVS).  E-Verify is an internet-based system that allows employers to verify employees’ work eligibility, but the system has been criticized for providing erroneous eligibility results due to name changes, citizenship status changes, and other data-entry or data processing errors.  E-Verify relies on Social Security and Department of Homeland Security databases to verify employee eligibility.

The proposed system would verify employment eligibility by utilizing the National Directory of New Hires, a state new hire database originally developed to facilitate child support enforcement.  The system would still utilize the Social Security and Department of Homeland Security databases, but those databases would also receive funding to improve and update their databases and verification programs.  Employers seeking to verify their employees’ eligibility could access the EEVS system via the Internet or a toll-free telephone line. 

Status: H.R. 2028 was introduced by Rep. Sam Johnson (R-TX) on April 22, 2009, and referred to the Judiciary, Education and Labor, Rules, and Ways and Means Committees.  The full text of the bill has not yet been released. Rep. Johnson introduced similar legislation in the 110th Congress, but the bill failed to make it out of committee.