Bring OSHA into the 21st Century
The Occupational Safety and Health Act just had its 52nd birthday. OSHA was born in an era where manufacturing was king, workplaces were organized, healthcare workers were immune from infectious diseases, public employees didn’t exist, workplace violence was just part of the job, Republicans were relatively sane, and the Courts added rights instead of taking them away. Seems like just yesterday.
That’s not the way the world is right now, but 14 workers still die every day on the job and several times that number die every day from occupational disease. OSHA needs to keep up with the times. To modernize the agency, on Workers Memorial Day, Democratic congressmen Joe Courtney (D-CT) and Bobby Scott, Chair of the House Committee on Education and Labor the Workforce, have re-introduced the Protecting America’s Workers Act (PAWA), HR 2998. The bill would expand OSHA coverage to 8 million state and local government workers in 23 who have no right to a safe workplace, update obsolete consensus standards that were adopted when OSHA was first enacted in 1970, reinstate the Volks Rule (an employer record-keeping rule of illnesses and injuries rolled back under the Trump administration), provide authority for increased civil penalties for serious OSHA violations, improve OSHA’s weak whistleblower protections, and authorize felony penalties against employers who knowingly commit OSHA violations that kill or serious injure a worker.
It probably won’t be going anywhere fast in a Republican-controlled House of Representatives, or even in the closely divided Senate. But when you happen to run into your Senator or local Congressperson, it wouldn’t hurt to let them know that workers lives are important and PAWA is a priority
Oregon Raises Penalties
OSHA State Plan states are supposed to run programs that are “at least as effective” as federal OSHA. Because the term “at least as effective” was never defined in the Occupational Safety and Health Act, states have often resisted federal OSHA’s efforts to impose certain criteria. One of the most difficult issues was penalty levels. OSHA’s maximum penalties are set by law and have always been much lower than EPA’s, for example. And average penalties are much lower because actually penalties are usually lower than the maximum level for a variety of reasons. Unfortuantely, the average state plan penalties are lower than federal OSHA — and some states have significantly lower penalties. Oregon was always known for having one of the lowest average penalty levels. For example, in FY 2021, the average serious penalty for all Oregon employers was only $620.02 and for larger employers only $584.71, both figures significantly below the federal average and below the “Further Legal Review” level that “triggers a closer look at the underlying performance,”
But now the state has made moves to rejoin the ranks of the “at least as effective.” Oregon Governor Tina Kotek has signed legislation that would raise penalty levels to some of the highest in the nation—up to $250,000 if a fatality is linked to a violation of state OSHA rules. Oregon OSHA’s minimum fine from $50 to $1,116, and the maximum for a serious violation to $15,625 (the current federal maximum penalty). But it will add also add $20,000 minimum and $50,000 maximum fine for a workplace fatality linked to a safety violation, which is a feature the feds don’t have. (With some exceptions, federal penalties are based solely on violations of standards, as well as the gravity of the hazard.) The bill also requires comprehensive workplace inspections after a work-related fatality caused by a safety violation, or three serious violations in one year.
Republicans, of course, were opposed, claiming it would cause massive job loss and small business bankruptcy. Check back next year to see how things are working out.
Texas Death Star Bill
Republicans profess to love, love, love states rights. But what’s good for the goose, isn’t necessarily good for the gander. While they think states should be able to override federal requirements, Republicans seem much less willing to allow cities to go above and beyond state law to protect workers or citizens or the environment. Both Florida and Texas are passing bills that would prevent cities and counties from passing labor-related ordinances that go beyond what state laws require. In Texas,
Worker advocates and other left-leaning opponents nicknamed the Texas measure the “Death Star” bill for its sweeping power to destroy local ordinances, including some aimed at protecting workers from heat-related illness and injuries on the job. Business groups, however, contend laws like this help save small businesses and other employers from a patchwork of local regulations that make it difficult and expensive to stay afloat.
Texas is the only state that does not require most employers to carry workers compensation insurance, leading cities and counties to adopt their own safeguards. Labor groups have labeled the legislation the “Death Star,” and as might be imagined, business groups strongly support the pre-emption legislation.
The Texas bill was originally focused on restricting local ability to pass wage and hour laws. For example, employers have filed lawsuits over Austin, Dallas, and San Antonio paid sick leave laws. But municipalities have also adopted rules protecting worker safety.
In 2010, Austin adopted a city ordinance providing construction workers with a 10-minute rest break for every four hours of work in order to protect workers against heat. Dallas followed suit in 2015.
Ministry for the Future
Issuing standards and regulations that protect workers and the environment is difficult. All federal rules must pass through the gauntlet of the little-known, but much feared Office of Regulatory Information and Analysis, which among other things, determines the costs and benefits of proposed agency rules. The New York Times highlights OIRA’s new(ish) head, Richard Revesz, who “is changing the way the government calculates the cost and benefits of regulation.” To make a long story (which you can read) short, Revesz has change the traditional process of calculating costs and benefits: “Until now, such analyses have been chiefly based on the current cost of a regulation to industry, compared against the benefits to society. Mr. Revesz’s alteration would emphasize how a regulation would benefit future generations.”
Changing that calculation can significantly boost the health costs of pollutants.
The change would affect the metric that the federal government uses to calculate the harm caused by one ton of planet-warming carbon dioxide pollution. In the Obama administration, White House economists calculated that number at roughly $50 a ton. In the Trump administration, they lowered it to less than $5 a ton. Applying Mr. Revesz’s formula shoots up the cost to nearly $200 a ton.
As they say, elections have consequences. (Long Twitter thread here.)
GIG Workers Face Deadly Hazards
Ride-hailing and delivery driving are among the deadliest occupations in the country, according to the Bureau of Labor Statistics. Most of these workers are killed in traffic accidents, but drivers are more at risk of assaults than other occupations.
A homeowner fired shots at a couple’s car when they mistakenly turned onto his property while making an Instacart delivery. A Florida man was charged with killing and dismembering an Uber Eats delivery driver who brought food to his home. A woman was kidnapped and sexually assaulted while making a DoorDash delivery to a hotel.
According to a report from Gig Workers Rising, “80 app-based workers have been victims of homicides while on job between 2017 and 2022. The majority were ride-hailing drivers, but at least 20 delivery workers were also killed.” These numbers are likely a significant undercount, because the companies are not obligated to report such incidents to government agencies for independent contractors who are not direct employees. And as independent contract workers, Gig workers often don’t have the right to benefits such as worker compensation or health insurance.
Kill a Worker, Go to Jail
OSHA comes under frequent criticism because of the low level of its penalties, penalties so low that they provide little disincentive to cutting corners on workplace safety. This isn’t OSHA’s fault. Civil penalties are set by Congress, and criminal prosecutions are severely limited by the Occupational Safety and Health Act. Nevertheless, OSHA and the Department of Justice, as well as local prosecutors who have more freedom to put employers in jail have resulted in some successful recent cases. And as I’ve often said, nothing sharpens the mind like to prospect of spending time in prison.
New Jersey construction company OneKey, LLC was sentenced to three years of probation and ordered to pay a $218,417 fine, and its principal, Finbar O’Neill, was sentenced to three months in federal prison following their guilty plea to willfully violating OSHA regulations resulting in the death of a construction worker in Poughkeepsie on August 3, 2017. The company was piling large amounts of dirt, called “surcharges,” on top of the sites of three future buildings, but did not follow the engineering plan which led to a collapse. OneKey and O’Neill heard from the workers at the site that the wall was not safe, but they did not fix it.
The wall collapsed and as it fell, one worker ran away from the wall, but couldn’t get away in time and was killed.
Meanwhile, Vernon, Connecticut police have arrested the owner of a construction company and an employee after a trench collapse in July that killed another worker.
Dennis Slater, 56, of East Windsor, was working for Botticello Inc., laying pipe at a new housing development off Bolton Branch Road in Vernon on July 22 when dirt collapsed on him and he later died. Vernon police have charged the owner of Manchester-based Botticello Inc., Dennis Botticello, 67, of Suffield, and Glen Locke, a 65-year-old equipment operator from Somers, in connection with the trench collapse that killed Slater. The arrest warrant applications said no trench box was used.
And in Colorado, Peter Dillon, the owner of a Vail construction company facing a felony manslaughter charge related to the findings of a federal safety investigation into a deadly trench collapse in November 2021.
In May 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration cited Peter Dillon, owner of the now-defunct A4S LLC, after a worker installing residential sewer pipes suffered fatal injuries when the trench around him caved in. The collapse resulted from deteriorating conditions at the project, which A4S LLC could have prevented by using legally required trench protection systems. OSHA issued three willful citations to A4S LLC for not ensuring the excavation was inspected by a competent person, failing to instruct employees on the recognition and avoidance of unsafe conditions and not having a trench protective system in place. Investigators also issued an additional serious citation for not having a safe means of egress within 25 lateral feet of employees working in a trench.
Need something to hang on your walls? Or maybe to decorate your job site? Check out these graphic workplace safety posters from the Netherlands. Additional historical posters here from Poland and Canada. And check out the Hazards Magazine gallery.
Good Jobs for Good Trouble (And Good Pay)
- AFSCME is looking of not one, but two health and safety reps. More information here.
- The New Jersey Attorney General’s office is looking for a Labor Enforcement Section Chief. Check it out here.
- The New York State Public Employees Federation is looking for a Health and Safety Specialist. More here.
- The Strategic Organizing Center is hiring a Safety and Health Deputy Director. Inquire here.