Utah State OSHA Plan: Good for the boss, bad for me?

The Salt Lake City Tribune (partnering with The Utah Investigative Journalism Project) published an article last week entitled “Death on the Job: Utah’s worker safety agency rejects ‘heavy-handed’ enforcement,” which, as you can probably tell, addressed a number of serious problem with Utah’s Occupational Safety and Health program (UOSH): no penalties for public employee OSHA citations (even fatalities), inappropriate classification of violations, low fines for private sector violations and other issues.

Among the problems cited were a city employee asphyxiated in a confined sace resulting in no penalty, average fines of $3000 for fatalities (including one fine of only $750 after a fatality caused by failure of the employer to ever inspect a machine), and violations that were downgraded in severity or otherwise improperly classified

The authors blame low fines and lax enforcement on “Utah’s larger pro-business regulatory culture. That’s why it was not uncommon for companies to face minor penalties even for fatalities.”   The pro-business culture of the the regulators is not good for workers, especially when combined with the practice of the construction industry where “value has been redefined as the lowest cost,” according to Brandt Goble, head of the Painters Local 77 union.  “Value is how cheap can you get it.”

A little background on OSHA state plans:

  • Federal OSHA only handles enforcement in about half the states. Twenty-one states (and Puerto Rico) run their own OSHA-approved state plans. Federal OSHA funds up to 50% of these programs and is responsible for ensuring that the state plans are “at least as effective” as federal OSHA.
  • Federal OSHA does not cover public employees. That means that workers employed by cities, counties and states have no legal right to a safe workplace even if they work on roads, wastewater treatment plants, hospitals or prisons. The good news is that states, like Utah, that run their own OSHA programs are required to cover public employees. OSHA also has a provision where a federal state can choose to cover its public employees while the Feds cover the private sector. Only six states (and the Virgin Islands) have taken advantage of this option — Connecticut, New York, New Jersey, Illinois and Maine. The bad news is that it’s left to the states whether or not to fine public employers who violate the law. Some do and some don’t. New Jersey, for example, recently cited the City of Ridgewood over $101,000.
  • Funding for OSHA state plans has suffered. Funding for state programs in FY 2008 was $89.5 million. That figure rose to over $104 million from FY 2010 to FY 2012, but then fell to $98.7 million during the sequestration year of FY 2013. Despite request for significant increases from the White House, the state plan line item only partially recovered from sequestration, rising to $100.9 million in FY 2016. Although the federal government is only required to provide up to 50% of the state plan budget, many states “overmatch,” using their own funds to provide more than the 50% match. With increasing fiscal problems, however, the number of states overmatching, and the amount of the overmatch have gone down over recent years.  All of these budget issues have taken their toll:  Ten years ago, state plan states could inspect each workplace once every 62 years. Today that figure is once every 97 years.

State plans have always been a challenge for OSHA. On one hand, some state plans, such as California and and Washington, have standards that are better than federal OSHA’s standard, and some have issued standards that Federal OSHA doesn’t have. CalOSHA, for example, last year issued a standard covering workplace violence in health care institutions. Federal OSHA has just begun rulemaking on workplace violence.

On the other hand, it is administratively and politically difficult for OSHA to oversee 28 state plans with limited tools to influence their behavior.  The average penalty for most states is much lower than federal OSHA’s, although they have started to rise. Some states are resisting raising their penalties in accordance with last year’s Congressional mandate to raise OSHA penalties for the first time since 1990.  While some states argue that more frequent inspections make up for lower penalties, it’s sometimes hard to understand how a minuscule penalty has any deterrent value no matter how many visits are made to the workplace. (If I was only issued a $5 fine every time I was caught for speeding or illegal parking, it probably wouldn’t deter me much.)

Chris Hill, UOSH’s current acting director, argues that

“Our mission is to make sure every worker goes home safe….We’re not issuing punitive damages on these citations.” UOSH isn’t out to make money off businesses. That’s why the agency keeps fines low, he said.

Hill’s statement ignores the fact that the goal of fines is to deter illegal behavior and hopefully send a message to other employers, not to make money off of businesses.

Federal OSHA during the Obama administration adopted a special focus on ensuring that state plans were “at least as effected as” federal OSHA after a high number of workers were killed on the Las Vegas strip. A special 2009 study of Nevada’s OSHA program found serious problems. Under pressure from federal OSHA, Nevada corrected most of its problems and is in good standing today. But it’s not easy. Every year federal OSHA issues a report on each state OSHA program which can be found here. Serious problems are often identified in these reports.  The main tool that OSHA has if a state is not running a program that is “at least as effective as” federal OSHA’ is to take away its state plan, a difficult and lengthy process. Over the last several years federal OSHA adopted a more flexible set of tools, including using the threat to take over some or all of a state’s program if the state refused run an effective program. When OSHA resurrected its 1992 residential fall protection requirements, for example, some states refused to go along. Arizona passed a law enforcing the old, weaker requirements, but pulled back at the last minute after federal OSHA went through the process of taking over its construction sector.

Workplace safety advocates will be watching carefully over the next several years to determine to what extent the new Labor Department and OSHA leadership will continue to insist that the state plans are “at least as effective” as federal OSHA.

Because, as one worker summed it up, according to Goble, the current situation in Utah is: “Good for the boss, bad for me.”

Fatalities OSHA State Plan States

3 Comments

  1. Wellllllll — I suppose I can’t just leave this one be, although I’m not going to weigh in about Utah one way or the other. But you did raise the question of penalties.

    You’re right about the $5 penalty, of course. But as one of those who has made the argument you’re challenging, I hope you’ll agree that’s a bit of a caricature. Penalties matter! Absolutely. But it’s hard to know what the “magic number” is. To use your analogy, if you get a $200 speeding ticket is that twice as much motivation as a $100 speeding ticket? Probably not, since we aren’t quite that rational in our calculations. And if you’re twice as likely to get caught speeding is the $100 ticket better motivation than a $200 ticket would be otherwise? Maybe, since (again) it isn’t a matter of simply doing the math.

    What I know is that employers complain about the penalties they get in Oregon, and they think they are bigger than they are (just as many employers believe that they’re more likely to be inspected than they are, even in states with a relatively low enforcement presence). And it’s those perceptions that matter. What I also know is that (although we’ve lost ground here as well — I’m hoping the legislature will see fit to address that this session) an employer is more than 3 times more likely to be inspected here than in the “average” state plan state and about 4 2/3 times more likely to be inspected than in the “average” federal state. Those differences, as you know, aren’t trivial. And while I think an average federal penalty for a first time serious violation of $2500 or so (FFY 2016 figures) has a bigger impact than our average of $700 for the same period (hard to say how much bigger, of course, since it’s not as simple as just doing the math), I don’t think I’d trade my enforcement presence for those higher penalties. In a way, I wish it was just math — because if we assume some sort of direct mathematic relationship between the two figures, then Oregon would win the “deterrence” contest with federal OSHA. After all, the federal penalties are 3 1/2 times ours — but our enforcement presence is 4 2/3 times the federal presence. But we both know that’s a bogus comparison. The truth is that calculating the true deterrent effect of different strategies is complex, and there is little comparative research on the subject. But I know we both agree that both a meaningful penalty and a meaningful risk that the penalty will be assessed matter. Beyond that, it’s a matter of details and, unfortunately (for the time being, at least) “gut feeling.” At this state in the nation’s affairs? Not sure it’s that useful for you and I to be arguing a whole lot about the best balance when there are people out there who are prepared to argue that enforcement itself is just wrong-headed. Know your enemy. But that also means you need to know your friends.

    Done rambling for the day.

  2. Thank you Michael. For those of you who don’t know, Michael Woods does a very able job of directing the very fine Oregon State OSHA program, and we’ve been having these debates about penalty levels for many years. Oregon, if you check out the current state plan penalty data (www.osha.gov/dcsp/osp/state_plan_penalty_data.html), has about the lowest penalties of any of the state OSHA programs. Several years ago, I wrote in the last version of Confined Space (spewingforth.blogspot.com/2005/03/of-fish-and-men-corporate-penalties.html), about a $240 traffic fine I received right down the road from Michael in Eugene, Oregon, which highly motivated me to pay more attention to yellow lights. I also compared my fine with an $11 million Department of Labor fine against WalMart for hiring undocumented immigrants and calculated that although $11 million sounded like a lot of money “If the Labor Department wanted to have the same impact on Wal-Mart that Eugene’s finest had on me, the fine would have been somewhere in the neighborhood of $650 million rather than $11 million.”

    The point here is that size does matter. A $5 fine for me would have had about the same effect as the $11 million fine for WalMart: None. And we’re not talking about an either/or proposition here. You don’t have to trade high inspection presence for low fines. A properly running (and adequately funded) OSHA would ideally be able to do both: have a regular presence in a significant number of workplaces, and have fines large enough to deter employers’ behavior, even large employers.

    1. Guess I should keep up a bit better. Until I saw your “about the lowest penalties” reference I hadn’t realized that we’d edged past Maryland (or they’d slipped past us).

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