On Tuesday, the U.S. Senate is expected to vote on S.J Res 27/H.J. Res 83 repealing the so-called “Volks Rule.” Repealing this rule will make it impossible for OSHA to cite employers’ recordkeeping requirements in any meaningful way. I explain below in more detail why the repeal of this OSHA regulation will make workplaces less safe. But in short, for 40 years, OSHA was able to cite employers who did not keep complete or accurate injury and illness records over the previous five years. This enabled OSHA to identify deliberate patterns of under reporting and to force changes, not just on those employers’ recordkeeping practices, but on their unsafe work practices. Accurate records are the main way workers and employers can identify health and safety problems in the workplace, and correct them.
In 2012, a court overturned OSHA’s ability to do that, but provided an option for OSHA to issue a new rule explaining more clearly an employer’s ongoing obligation to keep accurate records for five years.
Two weeks ago, the House of Representatives voted to repeal this regulation. The Senate is scheduled to vote on Tuesday. Unfortunately, under the terms of the Congressional Review Act, which will be used to repeal this regulation, Democrats are not allowed to filibuster, meaning that unless three Republican Senators can be convinced to uphold this protection, the regulation will be repealed following the President’s likely signature.
What you can do:
- Call your Senator on Monday. Ask him or her to vote against S.J Res 27/H.J. Res 83 repealing the Volks Rule. You can find your Senator’s phone number here.
- If you belong to a labor union, environmental organization, public health organization or any other interested organization or association, call them on Monday and ask them to contact Senators, requesting that they vote against S.J Res 27/H.J. Res 83.
Talking Points
- Oppose S.J Res 27/H.J. Res 83 which will repeal over 40 years of workplace safety protections. American workers will be harmed by the passage of this resolution–especially workers in the most dangerous industries. H.J. Res 83 undermines worker safety by removing all sanctions to companies who cut corners and hide injuries so they don’t have to correct job dangers to protect workers.
- The Volks Rule does not affect smaller employers because very small employers aren’t required to keep records.
- The Volks Rule is constitutional. If an industry organization believes that it’s unconstitutional, let the courts sort out the legal issues, not a partisan Congress.
- This is not about punishing employers for small mistakes many years ago; it is about OSHA’s ability to deter major patterns of deliberate false reporting intended to hide workplace safety and health problems.
- The bottom line is that employers and the Republican Congress want to repeal the Volks Rule because it will make it impossible for OSHA to enforce accurate recording requirements. Nothing more, nothing less.
Below is a blog post I wrote for the Economic Policy Institute a few weeks ago after the CRA resolution was introduced in the House of Representatives.
Why records matter to worker safety
Another week and Congressional and White House attacks on worker rights and safety continue. Here’s another proposed Congressional action guaranteed not to make headlines, but which will nevertheless have a damaging impact on worker safety.
Last week, Rep. Bradley Byrne (R-AL) introduced a “resolution of disapproval” under the Congressional Review Act (CRA) to overturn the “Volks Rule,” which allows the agency to continue prosecuting recordkeeping violations as it had done in the first 40 years of its existence.
Overturning the Volks Rule will result in more workers being injured, and it will penalize responsible employers.
Since 1972, OSHA has required many employers to record workplace injuries and illnesses, and to keep those records for five years. The ability to accurately identify who is getting hurt in the workplace, where and why, is essential information that workers and employers need to target injury prevention efforts and assess their effectiveness. OSHA also uses these statistics to develop standards and target enforcement at the most dangerous workplaces. And the Bureau of Labor Statistics uses these numbers to determine national trends in workplace safety and health. Requiring employers to keep these records for five years was the only way OSHA could ensure that accurate records are being made and maintained by employers, and the only way that workers and employers can evaluate over time whether improvements are working.
And it goes without saying that workplace-specific injury records are only useful if they are complete and accurate. Unfortunately, however, employers have an incentive to cheat because high injury numbers can result in increased workers’ compensation costs, denial of government contracts, more OSHA inspections and sometimes the loss of monetary bonuses.
The 40-year history of OSHA is filled with examples of serious breaches in employers’ willingness to keep accurate records. Starting in the Reagan administration and continuing into the Obama Administration, OSHA has issued large penalties after identifying a pattern of inaccurate recordkeeping. In all of these cases, the strong enforcement action taken by the agency resulted not only in significant changes in the recordkeeping practices of the companies but also in major improvements in working conditions the companies’ safety and health programs.
In 2012, a court decision overturned OSHA’s 40-year recordkeeping practice making it impossible for OSHA to effectively enforce against recordkeeping violations and rendering meaningless the OSHAct’s provision that OSHA require employers to keep accurate records.
The Occupational Safety and Health Act says that OSHA must finish all enforcement actions within 6 months of when a violation is identified. So if an OSHA Inspector identifies a problem, for example, a machine without a guard, the agency has only 6 months to issue a citation. OSHA has always considered any inaccurate or missing records during that five-year period to be a record keeping violation.
But without being able to enforce any violation within the five-year period, enforcement of recordkeeping accuracy would be almost impossible. Suppose, for example, OSHA inspected a workplace and among other health and safety problems, the inspector found a pattern of numerous serious and intentional recordkeeping violations over the past five years. The last recordkeeping violation identified, however, was 3 months before the inspector arrived. If it takes OSHA more than three months to issue the citations (not unusual as OSHA inspection procedures can be extensive) the six-month period from the last recordkeeping violation would have passed and the pattern of serious violations that the inspector had identified would go unaddressed. It would be impossible for OSHA enforce the law against employers with widespread recordkeeping abuses. The losers would be the workers because there would no longer be any way for OSHA to force employers to keep accurate records that could identify hazardous conditions. Not surprisingly, the impact of the court’s decision has been significant and detrimental: recordkeeping violations dropped 75 percent after the decision.
One of the three judges in the Volks case, however, ruled that it was only the language in the existing recordkeeping rules that prevented OSHA from treating violations as continuing, allowing OSHA to amend its rulemaking standard clarifying the five-year retention period is an ongoing violation. OSHA issued the amendments last December.
Across this country, there are many responsible employers who recognize that protecting the safety and health of their employees is a core value. These employers, who maintain accurate injury records, deserve a level playing field. If this rule is overturned, then responsible employers will be at further disadvantage competing with employers who cut corners on safety.
Rep. Byrne’s CRA resolution against OSHA’s Volks rule is another in a pattern of Congressional attacks on worker protections.
Other resources:
Letter from 66 Labor, Civil Rights and Environmental Organizations Opposing Repeal of the Volks Rule.
Factsheet on the Volks Rule from House Labor and Education Committee Democrats
This rule does not do anything to improve safety of workers, more often then not employers try to do the right thing. when was the last time you operated a business and been on the front lines of industry and labor. MOney could have been better spent on improving workplace safety, updating standards ,outreach and partnerships and training CSOs. SO much for government, industry and labor working together!
Carolyn: Thanks for the note. A few things:
1. Accurate recordkeeping actually does improve the safety of workers because it allows employers and workers to be able to identify hazards, control the hazards and evaluate whether the controls were effective.
2. Because some employers will deliberately not keep accurate records — to win contracts, to avoid OSHA inspections, to reduce workers comp payments — strong enforcement is needed.
3. Strong enforcement is not incompatible with updating standards, outreach, partnerships or training CSHOs. All of these need to be done, and have been done together.
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