Kill, Kill Again
What does it take to get companies to stop killing their workers — especially when they do it over and over again despite high penalties?
OSHA has issued a whopping $2.5 million penalty to Phenix Lumber in Alabama for death of James Streetman, 67, who was caught in an auger.
Streetman had climbed on top of an auger to access a difficult-to-reach area to unclog a woodchipper. Because of multiple failures by the employer to protect him, the machine started while the employee was on top of the auger. The 20-year employee was caught in the machinery and crushed to death.
In response, OSHA cited Phenix Lumber Co., as well as owners John Menza Dudley Jr. & Leslie Elizabeth Dudley, with 22 willful violations, 1 repeat violation & 5 serious violations, totaling $2,471,683 in penalties. Mostly lockout, fall protection.
Phenix had been inspected 4 times in the past 5 years, as well as a fatality in 2020 that resulted in 4 willful and 10 serious violations.
- In 2009, OSHA is issued $23,100 in penalties for one repeat and seven serious health violations; and $68,100 for 17 serious, five repeat and one other-than-serious safety violations. The repeat violations stemmed from the company’s failure to correct violations found in 2007.
- In 2010, Phenix employee Charles Mercer died after a piece of machinery fell on his head, leading to a $$439,400. fine. By 2011, Phenix Lumber Company had been cited 77 times by OSHA for serious health and safety violations.
- On May 27. 2020, Brandon Lee Vandyck, was killed after being caught in an auger — a tragedy similar to Streetman’s death. That fatality resulted in a $373,776 fine (later reduced to $177,442.)
OSHA unfortunately can not shut down a company, no matter how many workers it kills or how many violations it racks up. Ironically, however, in this case the City Council issued the company’s (temporary?) death penalty, revoking the company’s business license — not because it’s killing its workers — but due to fire code violations involving the misuse of fire hydrants.
So fire hydrant violations are more serious to the future of a company than killing workers?
Maybe.
Because Streetman was killed as a result of a willful violation, the company’s owners could be liable to criminal charges under the Occupational Safety and Health Act. But even if convicted, the law only makes it a misdemeanor. And the Department of Justice, which prosecutes criminal violations, is often reluctant to put a whole lot of resources into a criminal case if the most they can get is a misdemeanor.
Clearly, OSHA needs to be sending stronger messages to employers who willfully and repeatedly kill their employees. Congress must step up to make the OSHAct stronger, penalties higher — and increase the agency’s budget.
Remember that this November.
Worker Power Protects Farmworkers from Heat
Farmworkers are most at risk occupation from workplace heat exposure — farmworkers are 35 times more likely to die from heat than other workers. But the federal government is slow to issue a nationwide standard and only four states — California, Oregon, Washington and Colorado — have laws that protect farmworkers from heat. In the absence of regulatory and legal protections, Florida farmworkers have taken the initiative to force Florida growers into voluntary protection.
How did this happen?
Created in 2011 by the Coalition of Immokalee Workers, a nonprofit that represents farmworkers, the Fair Food Program (FFP) certifies farms that follow a strict set of workplace safety rules. In exchange, participating farms are first in line to sell their wares to 14 big produce buyers that include Walmart, Trader Joe’s, Whole Foods and McDonald’s.
The buyers agree to pay a small premium for produce from farms where workers are protected and blacklist farms that get kicked out of the program. In exchange, they can tout their ethical practices, a selling point with a growing number of consumers worried about who produces their food.
Every worker under the agreement takes a 10-minute break every two hours during the hottest part of the year. When they feel the effects of heat illness coming on, they have the right to cool down in the shade.
“The buyers agree to pay a small premium for produce from farms where workers are protected and blacklist farms that get kicked out of the program. In exchange, they can tout their ethical practices, a selling point with a growing number of consumers worried about who produces their food.
What’s the secret? Worker Power. It all began around 20 years ago with protests from the Coalition of Immokalee Workers against the conditions suffered by tomato workers. Not it’s spread to other states and other products. And working conditions and worker rights are being enforced by the organization’s auditors.
Why does it work? The FFP has the ability to punish wrongdoers by barring them from selling to specific clients, which could hurt farm owners’ wallets more than an OSHA violation. “If they lose their status as an FFP farm, then they’re looking at millions of dollars in potential losses,” according to According to Gerardo Reyes Chávez, a leader in the Coalition of Immokalee Workers.
States Petition OSHA for Emergency Heat Standard
As mentioned above, OSHA is working on a federal standard to protect workers against hazardous heat exposure. But that effort may take years — even under a Democratic administration. In hopes of speeding up the process, a group of ten state Attorneys General have petitioned OSHA for an Emergency Temporary Standard to protect workers against heat. The Occupational Safety and Health Act authorizes OSHA to issue ETSs for new hazards or hazards that present a grave threat to workers. The states signing the petition are New York, Arizona, Colorado, Connecticut, Illinois, Maine, Maryland, Massachusetts, New Jersey, Pennsylvania, and the District of Columbia.
While there is no doubt that heat presents a grave (and increasing) hazard to workers, it is unlikely that OSHA will grant the petition and issue a heat ETS. With the exception of its first COVID-19 ETS to protect healthcare workers issued in 2021, OSHA has a very poor track record sustaining ETS before the courts. And that’s only gotten worse since Trump appointees occupy more powerful court positions. In addition, the law states that OSHA must issue a permanent standard within 6 months of issuing the ETS — a goal that is impossible for OSHA to meet. While the applicability of that deadline is under dispute, OSHA has chosen to interpret it as binding.
Despite the fact that OSHA is unlikely to grant the petition, it may at least add urgency to OSHA’s work. We can hope.
What’s Killing Construction Workers
Anyone who reads The Weekly Toll and other Confined Space posts knows that construction workers have the highest on-the-job death toll of any industry. But what you may not be aware of — because it doesn’t generally make headlines — is that construction workers are more likely to die of a drug overdose than those in any other line of work. There were more than 162 overdose deaths per 100,000 construction workers in 2020, the most recent year statistics are available.
The main cause of drug addiction among construction workers is workplace injury — and the addictive medication workers are prescribed to manage pain from from those workplace injuries.
Why? Are construction workers a bunch of low-life, drug addled deadbeats? No. The main cause of drug addiction among construction workers is workplace injury — and the addictive medication workers are prescribed to manage pain from from those workplace injuries.
Injuries in construction are more common than in other fields. The job is often stressful and hard on workers’ bodies, making them susceptible to injury and more likely to seek medical attention for pain relief. In many cases, workers carry heavy tool bags on their shoulders and spend long periods bent down or on their knees. A third of construction workers have muscle or bone ailments, which make them three times as likely to be prescribed opioids for pain. They also do not often get paid sick leave, which could make opioids an option for getting back to work quickly.
Unions are actively working on the problem. The AFL-CIO construction trades-affiliate Center for Construction Research and Training, “has sponsored research projects on the effectiveness of various mitigation measures, including having Narcan on job sites and offering workers paid sick leave.”
Got Directly to Jail. Do Not Pass Go
Last year, I wrote about a Wisconsin jury convicting current and former Didion Milling Inc. officials of workplace safety, environmental, fraud and obstruction of justice charges following a 2017 grain dust explosion that ripped through a Didion corn mill, killing 5 workers. OSHA also issued a $1,837,861 citation against Didion in November 2017, which the company contested.
Last week, U.S. District Court Judge James D. Peterson for the Western District of Wisconsin sentenced the Didion Milling Inc. officials for their role in a fatal explosion at a mill operated by Didion.
Didion Vice President of Operations, Derrick Clark, was sentenced to two years in prison, a year of supervised release, and a $5,000 fine for conspiring to falsify documents relating to dust cleaning practices in the mill and the operation of air pollution prevention equipment, and making false compliance certifications as Didion’s “responsible official” under the Clean Air Act. He was also convicted for obstructing the Occupational Safety and Health Administration’s (OSHA) investigation of the explosion at the corn mill by making false and misleading statements during a sworn deposition.
Former Environmental Manager Joseph Winch was sentenced to two years in prison, two years of supervised release, and a $10,000 fine for conspiring to falsify Didion’s environmental compliance certifications.
Former Food Safety Superintendent Shawn Mesner was sentenced to two years in prison and a year of supervised release after being convicted in October 2023 of conspiring to commit fraud and to falsify Didion’s sanitation log.
Three former Didion shift superintendents – Anthony Hess, Joel Niemeyer and Michael Bright – who were convicted of crimes relating to falsification of Didion’s sanitation log. Hess was sentenced to a year of probation and a $5000 fine; Niemeyer was sentenced to a year of probation and a $1000 fine; and Bright was sentenced to a year of probation.
As I’ve frequently written, high OSHA fines are nice (and rare), but nothing sharpens the mind of unscrupulous employers more than the prospect of time in jail. Ironically, the penalties are far greater for lying to a government employee (as Didion officials did here), than for killing a worker — or even multiple workers year after year, as we saw above in the Phenix Lumber case.
It may cost you a few bucks to repeatedly kill a bunch of your employees, but if you want to stay out of jail, just make sure you tell the truth about your crimes.
In other words, it may cost you a few bucks to repeatedly kill a bunch of your employees, but if you want to stay out of jail, just make sure you tell the truth about your crimes.
California Cracks Down on Workplace Lead Exposure
The California Occupational Safety and Health Standards Board last week voted to adopt measures to tighten workplace lead exposure. “The evidence is undeniable that even small levels of exposure can have very, very serious effects,” board member Joseph M. Alioto Jr. said before voting in favor of updating the regulations. Current workplace lead exposure standards enforced by California and the federal government are based on science that is decades old. Newer evidence shows that workers suffer health hazards such as kidney dysfunction or hypertension from amounts of lead well below what California and the federal government had allowed.
The new standards are intended to keep lead levels in the blood below 10 micrograms per deciliter, rather than their previously stated target of 40 micrograms, according to Cal/OSHA. The regulations will go into effect in January, with an additional year for businesses to implement some of the requirements. The vote comes more than a decade after the state public health department recommended that workplace regulators revisit their lead rules to better protect workers.
OSHA’s Walkaround Regulation Moves Forward
Non-union workers are moving closer to having the legal right to choose their own walkaround representatives to accompany OSHA inspectors on worksite inspections. The rule has been sent over to the White House Office of Information and Regulatory Affairs (OIRA) for final review. Such reviews generally last three months, but can be accelerated. Hopefully, the final rule will be issued before April, which is the approximate deadline to prevent the regulation from being overturned by Congress should Republicans take the White House and both houses of Congress after the November elections.
As I’ve explained before, the Occupational Safety and Health Act allows workers to chose a representative to walk around with OSHA inspectors during an inspection. This is one of the most important rights that workers have under the OSHAct, but in practice, the right has largely been limited to those workers with union representation, and mostly to workers who work in the inspected workplace. Where there is no walkaround representative, the law directs OSHA inspectors only to “consult with a reasonable number of employees concerning matters of health and safety in the workplace.”
As I described here at some length, the current proposal is also facing strong opposition from business interests who falsely accuse OSHA of “making clear its agenda is no longer focused on improving workplace safety but on promoting organized labor.”
The goal of OSHA’s revised walkaround policy is not to aid union organizing, but to help workers come home alive at the end of the day by being able to fully participate in OSHA inspections.
But, of course, they’re wrong. The goal of OSHA’s revised walkaround policy is not to aid union organizing, but to help workers come home alive at the end of the day by being able to fully participate in OSHA inspections. Especially workers who don’t have unions. Even where there is no union organizing campaign.
Virginia Foxx (R-NC), chair of the House Education and Labor Workforce Committee, is apoplectic. Claiming that OSHA has no data or information regarding the use of third-party representatives, Foxx sent an urgent letter to Acting Labor Secretary Julie Su demanding that the regulation be abandoned. According to Foxx,
The proposed walkaround rule puts politics first by promoting Big Labor’s interests, interferes in labor-management relations, increases costs, puts union bosses ahead of workers, and overturns longstanding regulations. DOL should stop putting its political goal of promoting unionization at all costs ahead of keeping workers safe.
Of course, she’s also wrong about that. This regulation doesn’t help “big” labor, whose members already has walkaround rights. It actually helps “small” labor — workers without union representation — who need to right to select their own walkaround representatives.
Emergency Responders to Receive Improved OSHA Protections
Just over ten year ago, a massive ammonium nitrate explosion ripped through the West Fertilizer company, killing 15 people, including 12 emergency responders who had little knowledge of what was burning, the hazards involved or how to protect themselves. The West explosion came almost a dozen years the 9/11 terrorist attacks on September 11, 2001, after which all government agencies, including OSHA, were directed to strengthen their preparedness to respond to terrorist attacks, major disasters, and other emergencies.
In order to address this problem, OSHA has issued a proposed rule that will significantly update safety standards for emergency responders as well as firefighters, emergency medical service providers, and search and rescue workers. OSHA’s current protections for emergency response workers are a patchwork collection of antiquated rules that “fail to address the full range of job hazards faced by today’s emergency responders” and generally apply only to “fire brigades” in industrial fire departments.
OSHA admits that the current standards
Do not address the full range of hazards facing emergency responders, lag behind changes in protective equipment performance and industry practices, conflict with industry consensus standards, and are not aligned with many current emergency response guidelines provided by other federal agencies (e.g., DHS/FEMA).
The new Emergency Response standard would update safety and health protections “in line with national consensus standards for a broad range of workers exposed to hazards that arise during and after fires and other emergencies.” It would require covered employers to establish and implement a written emergency response program, as well as address medical evaluations, training, equipment and personal protective equipment requirements, pre-incident planning, an incident management system, standard operating procedures and program evaluation.
One major problem is that most emergency responders are public employees who have no OSHA coverage in 23 states. Other emergency responders are volunteers which some state plans cover as employees subject to OSHA protections, while others don’t. Some states consider prison labor to be employees covered by OSHA, but most don’t.
Public comments on the proposed can be submitted here until May 6 and a public hearing will likely be held later this year.
Highway Worker Deaths Underestimated
Faithful readers of the Weekly Toll have undoubtedly noticed that a week almost never goes by when at least one worker is killed while working on a highway. Highway construction workers, law enforcement officers, EMTs and roadside assistance workers like tow-truck drivers, mobile mechanics, and safety service patrollers are routinely hit and killed by distracted or impaired drivers while working on the side of the road or assisting drivers.
Despite the frequency of these tragedies, national crash data indicates that only 34 roadway assistance workers killed were killed between 2015 and 2001.
But the AAA Foundation for Traffic Safety has issued a report finding that 123 roadside assistance workers were killed by passing vehicles during those years. (From my observation, even that figure is grossly underestimated.)
Why the discrepancy?
Officials said the discrepancy is due in part to state police not identifying the victims as roadside assistance providers, and instead listing them as “pedestrians.” AAA researchers said that while the yearly total traffic fatalities increased over the study period, data indicates that fatalities to roadside assistance providers increased even more.
The report finds that
The vast majority of these deaths occurred on Interstate highways or other high-speed limited-access highways. Most crashes occurred during good weather on roads that were not slippery. Nearly two-thirds occurred in darkness; however, information regarding use of high visibility safety apparel, emergency lighting, and other safety equipment was unavailable in most cases….More than half of all crashes occurred when the striking driver departed the roadway and struck the roadside assistance provider on the shoulder or roadside.
(Note: These figure do not include construction workers killed in highway work zones. According to the Federal Highway Administration, from 1982 through 2020, 29,493 individuals — about 776 per year — lost their lives in work zone crashes. 2002 as the peak year, when 1,186 died in work zones. The number declined to an average of 635 from 2008-2014, but then increased to an average of 794 from 2015-2020.)
What is to be done? The Institute recommends reinforcing public awareness of and increase motorist compliance with Slow Down, Move Over laws; research on measures protect roadside assistance providers and first responders from out-of-control vehicles, training for roadside assistance providers that emphasizes the importance avoiding working or standing on the traffic-facing side of the incident scene whenever possible and minimize time spent on the traffic-facing side of the scene and better data collection.