OSHA Enforcement in Decline Data Shows

Words Words Words
I’m so sick of words
I get words all day through
First from him, now from you
Is that all you blighters can do?

— Eliza Doolittle, My Fair Lady

Secretary of Labor Alex Acosta, under fire for weakening worker protections, has consistently emphasized the importance of strong enforcement of the laws that the Labor Department administers. At a recent appropriations hearing, Acosta was asked by Committee Chairman Roy Blunt (R-MO) why the Administration had recommended flat budgets or slight increases for DOL enforcement agencies. Acosta defended his budget, explaining that

Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced. The men and women of the Department of Labor need the resources to enforce them  Over time even if budgets remain flat, life gets more expensive. And so we’ve asked for slight increases to continue the efforts that we’ve done this year. Because as I’ve said, enforcement matters.

I commented then that it was hard to argue with those words. But now it turns out that while the pro-enforcement words sounded good, the data tell a different story.

The National Employment Law Project (NELP) issued a report yesterday showing that worksite enforcement activity by the Occupational Safety and Health Administration is declining under the Trump administration.

Secretary of Labor Alex Acosta likes to boast that the number of OSHA inspections increased last year for the first time in several years, from 31,948 in FY 2017 to 32,396 in FY 2018.  But NELP points out that in FY 2017 OSHA changed the way it counts inspections. Instead of just counting the number of inspections conducted, OSHA moved to counting Enforcement Units, which weights inspections. And those numbers don’t look quite so good.

As the report, assembled by NELP Worker Health and Safety Program Director, Deborah Berkowitz, explains,

To encourage OSHA staff to undertake more complex inspections, such as for fatalities, process safety management, health hazards, heat, and ergonomics, in FY 2016 OSHA adopted a new system of measuring enforcement activity through weighed “enforcement units.” The new system assigns values—a number of enforcement units—to each specific type of inspection—with more time consuming and complex inspections having a higher enforcement unit value.

The problem is that all inspections are not created equal. More complex inspections, such as a process safety management inspection in a refinery, or a workplace violence inspection in a mental health institution take much longer than a bunch of very short and comparatively easy safety inspections at a construction site with multiple employers. The goal of the Enforcement Unit system was to avoid penalizing OSHA offices for focusing on more complex and often more important inspections.  As OSHA explained when the system was created, “This new system underscores the importance of the resource-intensive enforcement activity that is focused on some of the most hazardous work place issues such as ergonomics, heat, chemical exposures, workplace violence and process safety management.”

But, as the NELP report explains,

For FY 2016, OSHA reported that total enforcement activity reached 42,900 enforcement units. But in FY 2017, the number of enforcement units reported by the agency dropped. The total units for enforcement activity in FY 2017 is 41,829 enforcement units—1,071 enforcement units less than the FY 2016 levels.

And it gets worse:

This decline in enforcement activity continued at an accelerated pace in the first five months of FY 2018. Comparing OSHA enforcement activity in just the first five months of FY 2018 with enforcement activity from the first five months of FY 2017, the data shows that enforcement units are already down by 1,163 from FY 2017. (See chart below). That is a precipitous drop in enforcement.

Even more ominously, the report points out that “As of January 2018, Federal OSHA had 764 inspectors, down from 814 in January 2017.”

What this means is that OSHA is doing fewer of the more complex and difficult inspections.  A deeper analysis, presented by the AFL-CIO at a recent meeting of the American Industrial Hygiene Association, shows that enforcement unit numbers dropped in all categories: PSM, ergonomics, heat, workplace violence, combustible dust, significant cases, fatalities and inspections involving personal sampling for chemicals or noise.

The AFL-CIO analysis of OSHA inspection data also shows declines in the number of willful, repeat and serious violations from FY 2016 to 2017, as well as declines in the number of manufacturing, maritime and health inspections. (Penalty levels are difficult to assess because OSHA’s maximum penalties increased significantly in the middle of FY 2016.)

In fact, the only areas in which inspections increased were safety inspections and construction inspection.

Why is this happening?

If we look back over the past year and a half at OSHA, this pattern makes sense. The first problem is the low number of OSHA inspectors, a problem that goes back many years. OSHA hasn’t had a significant budget increase since 2010 and the number of inspectors on OSHA staff is the lowest in the agency’s history. As the AFL-CIO explains:

In 1975, federal OSHA had a total of 2,435 staff (inspectors and all other OSHA staff) and 1,102 inspectors responsible for the safety and health of 67.8 million workers at more than 3.9 million establishments. In FY 2018, there are 1,953 federal OSHA staff responsible for the safety and health of 139 million workers at more than 9 million workplaces.

When the Trump administration took office in January 2017, a hiring freeze was imposed over the entire government. That hiring freeze was lifted in April, but agencies were allowed to extend the freeze to fit their priorities.  Sources explain that in August 2017, Secretary Acosta was informed that the number of OSHA inspections for the year was way down from the previous year.

OSHA hasn’t had a significant budget increase since 2010 and the number of inspectors on OSHA staff is the lowest in the agency’s history.

Suzy Khimm of NBC News, documented at the time a 4% decline in in OSHA inspectors since Donald Trump took office. “In the months after President Donald Trump took office, the Occupational Safety and Health Administration lost 40 inspectors through attrition and made no new hires to fill the vacancies as of Oct. 2, according to data obtained through a Freedom of Information Act request….raising questions about the government’s efforts to protect workers and the long-term impact of the White House’s move to slow hiring.”

Alarmed, Acosta ordered the agency to increase its inspections before the end of the fiscal year on September 30.  (He also lifted the hiring freeze for OSHA Inspectors, which didn’t solve the immediate problem as the OSHA hiring pipeline for compliance officers extends many months.)

It’s the nature of the staff of any large organization, government or private sector, when faced with a difficult or unreasonable demand from the top, to figure out a way to reach the goals they had been given — even if it may not be in the best interest of the agency’s mission or the population they serve.

And when those demands are impossible, we’ve even seen inappropriate, unethical and illegal behavior.  Over the past several years, we have seen workers meet demands that have been difficult to achieve due to resource shortages or other problems by “pencil-whipping” reports to make them look good, or even falsifying records.   The VA scandal in which staff was asked to treat a high-quota of patients without the resources to do so, the so-called IRS “scandal” where staff had to find creative ways to determine the legitimacy of a huge number of non-profit tax-exemption applications both received a lot of press, but unfortunately the root causes of these problems received too little attention.

But these problems don’t just happen in government. Far from it. In the private sector, Wells Fargo employees were given the impossible task of convincing every customer to open five accounts, resulting in thousands of fake accounts being created for unsuspecting customers.  When caught, Wells Fargo’s first response was to fire hundreds of “corrupt” employees. Further investigation revealed the real cause of the behavior.

None of these “scandals” were the result of evil or corrupt workers; they were the result of bad management forcing workers to find “creative” ways to meet impossible goals.

“OSHA saves lives and limbs. Enforcing worker safety protections must be a top priority for policy makers—cutting back and jeopardizing worker welfare, as the Trump administration has done, is not an option.” — NELP

Happily, OSHA staff didn’t have to resort to unethical or illegal means to reach the goals imposed on them by Secretary Acosta. They already had a perfect legal tried-and-true method of getting the inspection numbers up: conducting a whole bunch of fast construction safety inspections.  Getting the number up like this at the end of a fiscal year was nothing new for OSHA when your inspection numbers were lacking. And the fact that construction and safety inspection numbers were the only numbers that rose in FY 2017 show the same behavior at the end of FY 2017.

Ironically, the enforcement unit system was created in part to avoid this annual phenomenon.

So, in the end, Acosta got his numbers — and bragging rights for an inspection increase over FY 2016 — but at the cost of fewer more complex inspections of workplaces were workers suffered from workplace violence, heat, musculoskeletal disorders, chemical plant hazards and other areas where longer investigations would have been required.

Of course, all workers suffer from a decline in OSHA enforcement.  Fewer inspections means that fewer unsafe working conditions are identified and corrected, and low-road employers soon get the message that the chance of ever seeing an OSHA inspector is slim and getting slimmer.

As the NELP report concludes: “OSHA saves lives and limbs. Enforcing worker safety protections must be a top priority for policy makers—cutting back and jeopardizing worker welfare, as the Trump administration has done, is not an option.”