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.