Acosta Testifies in the Senate: Red Lights, Retaliation and VPP

Labor Secretary Alexander Acosta testified yesterday before the Senate Appropriations subcommittee on Labor, Health and Human Services, Education, and Related Agencies on the Department of Labor’s FY 2018 budget proposal. As expected, there were very few questions dealing with worker safety and health, and unfortunately none on the Susan Harwood Grant program which is slated for elimination.

What Acosta’s testimony revealed unfortunately, is that he has a thin grasp on the importance of enforcement, and like the Bush administration, a rather inflated idea of the relative importance of compliance assistance and the Voluntary Protection Programs (VPP).

Oh, and Secretary Acosta doesn’t seem to understand the concept of traffic lights. But more on that later.

At his hearing yesterday, he was asked by Senator James Lankford (R-OK) about regulations. Lankford provided an excellent recitation of the usual Republican myths:

If there are safety issues, we do want to bring down the tone of regulators. Folks used to come in to help us, now they come in to fine us. Especially from small businesses.In the abundance of new regulations that have come in in the last , they ask a simple question: Can we have some mercy? If we miss something, come tell us we missed something, but don’t come in with a fine book immediately, come in with a warning.

Especially for small business, if they miss something they don’t have an attorney on staff , they don’t have a compliance person on staff, they run their business. Come in to help people, not just to fine

Acosta’s response?

Compliance assistance is very important. We need enforcement to go hand in hand. But compliance assistance, at the end of the day, I believe can bring about sometimes greater compliance. As a US attorney, I would talk to Chambers and said we can prosecute cases, but preventing wrong doing in the first place is more successful.  Isn’t it better to have a traffic light that prevent accidents than give people tickets after an accident has occurred?

OK, a couple of things about this exchange. First, OSHA has a small business onsite consultation program which provides free “inspections” or “consultations” with employers about workplace health and safety issues — without the threat of enforcement. The states run these programs and OSHA funds 90% of them.

In other words, OSHA understands that small businesses may not have a compliance person on staff, and that if they miss something, they should get a warning. The consultation program serves as that free warning as well as a small employer’s compliance person.

What that means is that by the time an OSHA inspector arrives, no small business should have any excuse about not being aware of safety and health hazards in their workplace.  Senator Lankford is a very knowledgeable person. He is well aware of OSHA’s small business onsite consultation program.  He values the program. I know this because we discussed the benefits of the program and how to better promote it during a hearing last year at which I testified.

Secretary Acosta’s apparent failure to understand the role of enforcement is troubling. Obviously, preventing an injury or fatality is better than citing an employer after it happens. That is not the question. The question is how best to deter employers from violating the law: compliance assistance or enforcement? Reasonable minds may differ, and the answer is a mixture of the two. But it is erroneous to suggest that only compliance assistance serves a preventive function.

In fact, there is  good evidence that OSHA enforcement prevents injuries. In 2012 the journal Science published a peer-reviewed study conducted by researchers at the Business Schools of the University of California and Harvard University. This study looked at the impact of randomized OSHA inspections in California, and found that OSHA inspections reduce injury rates while saving employers billions of dollars through reduced workers’ compensation costs. This study was followed by others in Washington State and Pennsylvania that showed similar results.

Red Light District

More troubling is Acosta’s red light analogy. A red light is not, as Secretary Acosta suggests, “compliance assistance.” A red is not educational. A red light is the law (or a regulation). You go through the red light (and you’re caught), you get a ticket, whether you injure someone or not. (I know this from personal experience.) So his red light example is actually a great example of the value of enforcement — not compliance assistance — in preventing traffic accidents.

Salvation in VPP

The only other safety and health exchange came from Senator Joe Manchin (D-WV) who asked Acosta why he as shifting OSHA resources away from enforcement to compliance assistance,  resulting in 1,000 fewer OSHA inspections. (The President’s budget calls for a elimination of the Susan Harwood Training grants, and a $4 million increase in the compliance assistance budget. The overall OSHA budget will be $2 million less than FY 2016. There were no cuts to the enforcement budget, which has been flat for several years, resulting in an annual decrease in inspections.)

Acosta’s response was essentially a ringing endorsement of OSHA’s Voluntary Protection Program, saying the President’s budget

reflects our belief that some of the programs that are long standing, like the VPP program and others that work with particular companies to foster compliance assistance may — not may, but the evidence shows do  — produce better safety outcomes.  [The budget will] fund the VPP program that has in fact been shown to be very successful working with companies and saying, look, these are the steps you can take so that you can provide a safe workplace.

The agency has announced a public meeting on VPP next month and I will be reviewing the history, as well as the costs and benefits of the program very soon.  But I will say this: there is no evidence that the VPP program produces better safety outcomes than enforcement. VPP participants clearly have better safety and health records than the average company, but we’re mixing up cause and effect. These companies are in VPP because of their superior safety records. There is no evidence that they have superior safety records because of VPP.

Acosta concluded that

The fact that we are engaged in compliance assistance, that we’re telling people what they need to do to have a safe workplace doesn’t mean that we have any less enforcement, it just means that we’re respecting them and saying what they need to do and if they don’t do it, then we’ll certainly enforce.

Well, the fact that you’re increasing compliance assistance and not increasing enforcement actually does mean that you’ll have less enforcement. That’s exactly what it means.

There is sometimes not just in mining but in several industries an unfortunate reticence to report issues and I think that’s something we’re always looking to address and fight against. — Secretary of Labor Acosta.

OSHA already has a large compliance assistance budget, and the Obama administration was forced to reduce the number of compliance assistance specialists it had, as well as capping VPP growth — but not because we didn’t value compliance assistance; because even an Republican controlled Congress refused, year after year, to increase the agency’s compliance assistance budget.

Retaliation Against Workers

Finally, there was one additional rather ironic exchange between Manchin and Acosta. Manchin asked Acosta how he was going to encourage an environment where miners would feel free to speak up about violations without fear of retaliation. Acosta responded that “There is sometimes not just in mining but in several industries an unfortunate reticence to report issues and I think that’s something we’re always looking to address and fight against.”

Exactly! Great answer. Couldn’t have said it better myself. Unfortunately, this statement comes that same morning that OSHA announced a delay in its electronic recordkeeping rule and its future intention to revisit the anti-retaliation protections in that regulation.

And when that proposal is issued, I’ll be looking forward to seeing whether retaliation continues to be an issue that Secretary Acosta is still “looking to address and fight against.”

Alex Acosta Budget Senate Voluntary Protection Programs

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