Deadly Injustice: Public Employees as Second Class Citizens

This is a tale of two systems: One where employees are protected by a law requiring them to be provided with a safe workplace, and one where there are no workplace safety protections.

One, where after a workplace fatality, there is an investigation, followed by citations by a government agency if workplace safety violations are identified. The other, where after a fatality, there is no citation, rarely an investigation or report and no lessons learned.

One where workers facing an unsafe workplace have a right to file a complaint and get an OSHA inspection. The other, where workers have no one to complain to. Where they have to continue to work under dangerous conditions or quit and try to find another job.

This is a tale of two types of people: Private Sector employees covered by a law that attempts to protect their lives and health,  and most public sector employees who are second-class citizens operating in a jungle where preventable workplace deaths and injuries are just “one of those tragic things. “

Those of you who read the most recent Weekly Toll may have noticed two public employee deaths: Nebraska Department of Transportation worker Mark F. Wells, age 56, of Broken Bow, Nebraska, was killed when he the construction broom sweeper he was driving was hit by a semi. And St Louis County employee, Chadd Hackl, 44, of Jennings, Missouri was found pinned under a large lawnmower in a body of water.  Meanwhile,  a couple of weeks ago, on August 15, Timothy F. Harms, 43,an employee at an Illinois Department of Transportation depot was killed after becoming pinned between two pieces of large equipment.

Also last week, a Jet Blue subcontractor at Boston’s Logan airport,  Raul Orengo Santiago, 51, was killed in a forklift incident.

This will likely be all anyone will ever hear of the deaths of Mark Wells or Chadd Hackl. The death of Timothy Harms and Raul Santiago, on the other hand, will be investigated, and citations will be issued if any OSHA standards were violated. Why such different treatment when all died in the workplace?

The deaths of Timothy Harms and Raul Santiago will be investigated, and citations will be issued if any OSHA standards were violated. But this will likely be the last time anyone — outside of their families, friends and co-workers — will ever hear anything about the deaths of Mark Wells or Chadd Hackl.

Why are public employees second class citizens?

Why such different treatment when all died in the workplace?

Welcome to the weird world of the Occupational Safety and Health Act (OSHAct). The OSHAct, passed by Congress in 1970, required employers to provide a safe workplace for their employees. Employers were required to comply with OSHA standards and face inspections if a worker complained, or someone was hurt of killed in the workplace.

But with a major exception: public employees were not covered by the OSHAct. They had no legal right to a safe workplace, even they many did the exact same work that private sector workers did. Even though state and local government employers have a higher injury and illness rate than private industry workers, including construction, mining and manufacturing workers.

There were two exceptions to the public employee exception, however.

First, states were allowed to run their own programs, 50% funded by federal OSHA — if their programs were “at least as effective” as federal OSHA’s — and they were required to cover public employees in their state. States were also allowed to adopt “public employee-only plans” where federal OSHA would provide 50% of the funding for those states to cover their public employees. There are 21 states (and Puerto Rico) that run their own state plans, and another 5 states (and the Virgin Islands) that have public employee-only plans, leaving 23 states where public employees have no OSHA coverage, no right to come home alive and healthy at the end of the work day. Workers in Washington DC also have no OSHA coverage.*

Santiago was a private sector employee and his death — like all private sector deaths under OSHA’s jurisdiction — will be investigated by Federal OSHA. Harms was “lucky” enough to be a public employee killed in Illinois, a state that has a public sector OSHA program. His death will also be investigated. Wells and Hackl are out of luck. No OSHA investigation, no citation, no penalty and no lessons learned.

Finally, I point you to the state of New Mexico, which runs its own OSHA program that covers public employees. On September 1, New Mexico OSHA issued five “willful-serious” and two “serious” violations against the City of Albuquerque for exposing city employees to asbestos. The total penalty was $761,112. The asbestos

was swept up with brooms and thrown in the trash. Workers were not wearing PPE and all this was done while the HVAC system was still running, possibly transporting the dust through the building.

The Chief of New Mexico’s Occupational Health and Safety Bureau Bob Genoway says he’s stunned the city did this. “To willfully violate an OSHA standard is is you know, it’s almost it’s almost hard to understand why somebody would do that. You know, we may not get to the answer of why that was done,” said Genoway.

Had government workers been exposed to asbestos a few hundred miles north in Colorado, or a few hundred miles east in Texas, you would never have heard a word from OSHA, because in those states (and 21 others), it’s perfectly legal to expose workers to cancer-causing substances on the job.

Follow-up after public employee death

After the deaths of government employees, the agencies often say they will conduct an investigation. But don’t hold your breath. Last April, just before Workers Memorial Day, Eutaw, Alabama city employee Tony Rice was killed in a trench collapse. The trench was apparently 15 feet deep — three times the limit set by OSHA. No OSHA inspection, but

Town leaders say the investigation is well underway and is being handled by two agencies: the Eutaw Police Department and the Greene County Coroner’s office. Town spokesman Corey Martin is confident the Eutaw Police Department and the Greene County Coroner’s Office will come to a conclusion.

Six months later, there is no conclusion. No reference to an investigation or report appears on the web. The last web entry referencing Rice’s death was May 3, 2023. He has apparently dropped from public sight.

To its credit, the Missouri Department of Labor and Industrial Relations, Division of Labor Standards conducted an investigation into the death of Harold Parker, a 56-year-old employee of the City of Normandy Public Works Department, who was crushed to death when a tree he was cutting fell on him. The Division of Labor Standards issued a report finding that

The safety program at the [Normandy] Public Works Department is very informal. There was reportedly a written safety manual from 2007. Formal training on tree care/removal had been provided previously to one employee; however, the deceased did not receive this training. No formal safety training-other than those were identified and mostly was determined to be on-the-job training.

The report recommended that the city conduct a job hazard analysis to identify potential hazards, develop a comprehensive health and safety program and provide employee training.

But these are recommendations, not requirements.

The family of Huntsville, Alabama employee Bobby Green was not so lucky. Green was crushed to death in September 2021 when a 20 foot trench collapsed on top of him.  The city of Huntsville hired an outside consultant to conduct an investigation. What was the conclusion of the investigation? Television station WAFF tried for months to get a copy of the investigation.  Finally, Huntsville Director of Communications Kelly Schrimsher revealed that

…the city hired an outside consultant to investigate. In an email last week, Schrimisher said “the city did have safety equipment in place and there is nothing more to report.” She also said work resumed at the site several months ago.

Schrimsher said the consultant was hired for insurance purposes and she said it was standard procedure in an industrial accident.

She didn’t elaborate on what specific safety equipment was in place, nor did she tell us who the outside consultant was, or what the city paid them. She also did not explain what the consultant found, which was likely paid for by tax dollars.

End of story.

And this wasn’t the first time Huntsville residents — or government officials — became aware of the hazards of trench collapses. On July 14, 2021, just two months before Green’s death, federal OSHA cited Weaver Environmental Services Inc. with one willful violation for the trench collapse death of a private sector employee, Armondo Aviles, in Huntsville. OSHA fined the company $110,590.

Doing the math, that comes to about $110,590 more than the City of Huntsville was for Green’s similar death.

What is to be done?

It’s been over 50 years since the OSHAct was passed and almost 8 million public employees still have no right to a safe workplace.

Why haven’t more states passed public employee OSHA laws? Allegedly because they’re already protecting their employees and OSHA coverage will cost too much. Unanswered is the question: How can something you’re already doing cost too much?

We need to fight for is OSHA coverage for public employees. The Protecting America’s Workers Act (PAWA), HR 2998, introduced last Workers Memorial Day by Rep. Joe Courtney (D-CT), would require coverage of all public employees in the country. But until PAWA passes Congress and is signed by the President, each of the 23 states where public employees are not covered can pass laws providing them with federally approved OSHA coverage.

States where public employees can still legally go to their deaths from workplace safety violations that would be illegal if they were private sector employees are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island,  South Dakota, Texas, West Virginia, and Wisconsin.

Massachusetts launched a public employee OSHA program last year and efforts are currently going on in New Hampshire and  Pennsylvania. The Pennsylvania House has passed a bill providing OSHA coverage to public employees last May by a vote of 116-85 . But there has been no action in the Republican-controlled state Senate. Massachusetts joined the too-small list of public employee OSHA states last year.

We’re coming into an election year. Most people — including many public employees — don’t even know that the people that deal with their sewage, pick up their garbage, fix their roads, teach their children, protect them against crime, guard their prisoners, put out fires and maintain their parks have no workplace safety protections.

Raise the issue with the candidates — especially candidates for state legislator in the 23 states where public employees have no OSHA coverage. Ask them if they were aware that public employees have no legal workplace safety protections? Ask them if they have a plan to do something about it.

*States where public employees can still legally go to their deaths from workplace safety violations that would be illegal if they were private sector employees are Alabama, Arkansas, Colorado, Delaware, Florida, Georgia, Idaho, Kansas, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, Ohio, Pennsylvania, Rhode Island,  South Dakota, Texas, West Virginia, and Wisconsin.