Is Workplace Safety Optional?

Everyone seems to have an opinion about OSHA these days — even those who barely knew the agency existed before it issued its controversial COVID-19 test or vax standard. People who had probably never heard of OSHA before have a new public enemy number one, and others have a new-found for respect for the agency’s efforts, even if their vaccine mandate was overturned by a right-wing, anti-regulatory Supreme Court.

With all of the political controversy and hyperventilating about OSHA’s COVID-19 activities, it may be easy for some to forget that OSHA’s main job is quietly saving workers’ lives every day — mostly OSHA inspectors conducting on-site inspections of workplaces — and citing employers who violate OSHA standards, putting their workers’ lives at risk. It’s difficult work and sometimes dangerous work as some hostile employers don’t appreciate government interference in their “freedom” to kill their workers.

And unfortunately, although most employers try to protect their employees, there are a substantial number, as a few examples below illustrate, who defiantly refuse to protect their employees, even after OSHA citations. And a weak 50 year-old law and a tiny budget severely handicap the agency’s efforts. Below are some recent OSHA enforcement examples:

DME Construction

Let’s start with employers who don’t understand the concept of a 50-year old legal requirement to provide safe workplaces. On August 19, 2021, 56-year-old man died after falling 18 feet through an unprotected skylight at the town of Oyster Bay’s Solid Waste Disposal Complex in Long Island, New York.  Earlier this week, OSHA issued a whopping $1.2 million “egregious” citation against DME Construction Associates Inc. In addition to the unprotected skylight, OSHA found that DME exposed workers to falls of up to 22 feet from other unguarded roof openings and roof edges, and failed to provide employees with any personal fall protection equipment.

Why the high penalty?  According to OSHA’s press release, “Before this inspection, OSHA had cited DME seven times since 2011 for fall-related hazards, including not providing protection from falls through skylights and from roof edges, with more than $50,000 in unpaid fines.”

It seems clear from DME’s history, that their safety plan was based on only one element: Luck. And the worker’s luck finally ran out.

Seven times OSHA citations had “warned” the company that their violations could kill someone — and after 10 years of continuously violating the law, DME finally did kill a worker.  OSHA noted that “DME’s job safety plan required fall protection for all employees walking or working on unprotected surfaces 6 feet or more above a lower level,” but it seems clear from DME’s history, that their safety plan was based on only one element: Luck. And the company’s luck finally ran out — with a worker paying the price.

This citation is considered “egregious” because instead of issuing one violation for failure to comply with OSHA’s fall protection standard, the agency issued a separate $145,027 willful violation for each of the 8 workers exposed to the fall hazard. A willful violation is defined as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety.

Atlantic Coast Utilities and Laurence Moloney

DME is not alone is failing to protect its employees despite clear knowledge of what the law requires. On February 24, 2021, Jordan Romero, 28, and Carlos Gutierres, 32 were crushed to death when a 20 foot deep trench collapsed on top of them in Boston, Massachusetts. OSHA requires any trench over 5 feet deep to be protected with a trench box or shoring.

In August 2021, OSHA cited Laurence Moloney and his companies proposing $1,350,884 in penalties. Maloney is contesting those citations.

This wasn’t the first time that Maloney had failed to provide his employees with a safe workplace:

Under various names, including Shannon Construction Corp. and Atlantic Coast Utilities LLC, Moloney and his companies have an extensive history of OSHA trenching and excavation violations dating back almost 20 years. Six previous inspections of his companies resulted in the issuance of 14 willful repeat and serious violations, with $81,242 in penalties, $73,542 of which are unpaid and have been referred to debt collection.

One would think that after decades of OSHA citations and after you had killed two of your workers in an unprotected trench, you’d maybe finally learn your lesson.

But not Laurence Moloney.

Earlier this month, OSHA issued citations with penalties total $624,777 against Moloney and his company Atlantic Coast Utilities, as well as Nuala Nichoncubhair, owner of Sterling Excavation LLC, for “again for failing to provide employees with essential and required safeguards.” The citation included 7 willful violations and 1 repeat.

Why, after two deaths and over $2 million in OSHA penalties, does the law still allow Laurence Maloney to walk the earth as a free man?

So why, one wonders, after two deaths and over $2 million in OSHA penalties, does the law still allow Laurence Maloney to walk the earth as a free man?

PM Engineered Solutions

Meanwhile, we have these OSHA citations (here and here) against PM Engineered Solutions Inc in Watertown, Connecticut after a worker was electrocuted repairing a water heater that had not been “de-energized.”  OSHA’s Lockout-Tagout standard requires employers to make it impossible for a worker to be crushed by machinery or electrocuted when repairing machinery by using locks (or sometimes tags) to ensure that the equipment cannot be re-energized while the worker is repairing or restarting the machinery.

OSHA cited the company for 40 serious and eight other-than-serious violations of workplace safety and health standards found during its comprehensive inspection of the facility.  Among the violations were 62 instances of inadequately guarded machinery, including mechanical power presses, forges, hydraulic presses and grinding machinery, and numerous other violations of OSHA standards.

Aside from a $5,000 2019 citation (later reduced to $3,000) for failing to train its workers about chemical exposures, this was the first citation received by the company.  Clearly, however, the extent and number of violations identified by OSHA indicate that this company had a long-standing policy of neglecting its legal responsibility to provide a safe workplace.

Why was this employer allowed to operate with that level of violations?  Because OSHA can’t cite if it doesn’t inspect. The AFL-CIO estimates every year how long it would take for OSHA to inspect every workplace in the United States just once. For Calendar Year 2019, it would have taken OSHA 165 years to inspect each workplace once.

According to AFL-CIO calculations, at the peak of federal OSHA staffing in 1980, there were 2,951 total staff and 1,469 federal OSHA inspectors (including supervisors). The ratio of OSHA inspectors per 1 million workers was 14.8. But now, there are only 901 federal OSHA inspectors (including supervisors), or 6.1 inspectors per 1 million workers.

ILS Construction and Ivan Lowky

Ivan Lowky hasn’t killed any of his workers yet.  But he seems determined to.

Last week, OSHA issued penalties totaling $237,013 against Lowky, (doing business as ILS Construction) for exposing workers to deadly fall hazards on two separate Ohio job sites. That might sound like a pretty hefty penalty for OSHA — until you realize that this is the 6th time since 2018 that the company has been cited for the same violations.  Given that, a $237,000 penalty sounds kind of low. One might wonder why, in cases like this, the law doesn’t permit criminal charges against Lowky, especially considering that falls are the leading cause of death for construction workers? The Bureau of Labor Statistics reports that in 2020, there were 351 fatal falls to a lower level out of 1,008 construction fatalities. OSHA requires employers to provide fall protection whenever a construction workers is working over 6 feet above the ground.

Lowky has now racked up over half a million dollars in OSHA penalties, and has paid nothing. One wonders why the law allows him to stay in business. One wonders how long it will be before Ivan Lowky kills one of his workers.

Is Workplace Safety Optional?

OSHA Region 2 Administrator Rich Mendelson noted in the DME press release that  “Ensuring worker safety is not an option.”

Unfortunately, as worthy and legally accurate as that statement is, in reality it seems that worker safety may actually be an option.   The 50 year old Occupational Safety and Health Act, and OSHA’s funding have do not make Mendelson’s statement more an aspiration than a fact.

“Ensuring worker safety is not an option.”  — OSHA Region 2 Administrator Rich Mendelson

Just consider:

• OSHA cannot shut down a workplace (except in an immanent danger situation, and even then the agency has to get a court order).  OSHA can’t rescind a construction projects permits and cannot ban an errant business owner like Ivan Lowky from doing business.
• OSHA’s criminal prosecution provisions are weak.  OSHA can only pursue a criminal prosecution if the agency has issued a willful violation associated with a fatality. And even if successful, the outcome is only a misdemeanor, not a felony.  The Department of Justice, which must prosecute criminal cases, is often reluctant to commit the time and resources to a criminal case if the outcome is only a misdemeanor.
• OSHA’s anti-retaliation protections are weak. The Occupational Safety and Health Act was the first federal law with anti-retaliation and whistleblower provisions. Over 20 whistleblower laws have been passed in the ensuing 50 years, and most have much stronger language that provide much better protection for workers who are brave enough to stick their necks out and file a complaint against their employer.  And unless workers feel protected, they will be reluctant to file an OSHA complaint. And if workers don’t file an OSHA complaint when they suspect unsafe conditions, OSHA is unlikely to visit that workplace — at least until someone is seriously injured or killed.
• OSHA is seriously underfunded. As mentioned above, if OSHA were to inspect every workplace in the country just once, it would take over 160 years. That means that most unsafe companies, like those mentioned above, will likely never see an OSHA inspector unless someone is killed or hospitalized. Or unless a worker files a complaint, which is unlikely for non-union companies.
• Even when OSHA is able to inspect a workplace, what inspectors are allowed to look at is often severely restricted. For example, if inspectors are responding to a complaint about a specific hazard (for example a machine guard), they are only allowed to look at the area included in the complaint, and not a full inspection except in certain circumstances (e.g. if the employees raise other issues, or the workplace is included in an emphasis program). They can also cite any violations they happen to see on the way to the targeted area, which led at least one employer to require inspectors to wear paper bags over their heads while walking through the plant.
• Millions of dollars of OSHA penalties go unpaid each year. While some are pursued by the Treasury Department, millions are written off, especially among small construction companies can can go out of business and start up again under a different name. In fiscal years 2018 to 2020, nearly $100 million in OSHA fines were written off as uncollectible. And as University of Pittsburgh’s Graduate School of Public and International Affairs professor John Mendeloff, points out,  “Penalties don’t make a difference, if you’re not going to pay,” he said in a phone interview.

Until lawmakers recognize the weakness of the 50-year old Occupational Safety and Health Act and take action to modernize the law, many employers will continue to see workplace safety as optional. The Protecting America’s Workers Act (PAWA). which is pending in the House of Representatives and Senate, would address some of these issues by increasing OSHA criminal penalties from a misdemeanor to a felony (and up to 10 years in jail) for any employer who knowingly “knowingly violates any standard, rule, or order promulgated under [under the OSHAct] and that violation caused or significantly contributed to the death of any employee.”  The bill would also allow criminal charges (and up to 5 years in prison) where an employer’s action “significantly contributed to serious bodily harm to any employee but does not cause death to any employee.”   PAWA would also significantly strengthen OSHA’s anti-retaliation protections.