New Mexico OSHA Cites City of Roswell for Fatal Trench Collapse
New Mexico OSHA has issued a $621,768 citation against the city of Roswell after a city utility worker, 20-year Trey Michael Gray, was crushed to death in a trench in 2023.
Why is this news? Employers get cited all the time. The reason I’m writing about this is, first, public employees are not covered by OSHA in 23 states. In other words, somewhere around 8 million public employees in this country have no right to a safe workplace. If this death had happened about 100 miles to the east, across the border in Texas, there would have been no OSHA citation, no investigation and no lessons learned, because it’s perfect legal to kill public employees in Texas and 22 other states.
In fact, in the last couple of weeks 34-year-old Jordan Haynesworth was killed in at an El Paso water treatment plant, and Wilbert Ray “Bucky” Adkins Jr., 53, an 8-year veteran for the Hinton, West Virginia, Public Works Department was also killed at work. Neither of these deaths will receive an OSHA investigation or citations because public employees are not covered by OSHA in Texas or West Virginia.
Second, OSHA regulations do not require state OSHA’s to fine public employers, and many states don’t. OSHA regulation 29 CFR 1956.11(c)(2)(x) states that “In lieu of monetary penalties a complex of enforcement tools and rights, such as various forms of equitable remedies available to the designee including administrative orders; availability of employee rights such as right to contest citations, and provisions for strengthened employee participation in enforcement may be demonstrated to be as effective as monetary penalties in achieving compliance in public employment.”
So kudos to New Mexico OSHA for caring about public employees.
Kill Workers, Go to Jail
A New York mine manager will be spending 6 months in jail after pleading guilty to manslaughter. According to the Department of Labor, Anthony Valente, a mine manager at a Grafton limestone quarry, admitted to causing 35-year old Darren Miller’s death in October 2022. This was no “accident.” The crane’s safety features after it had been tagged “out of service,” but Valente operated it anyway, overriding the crane’s safety feature and using it to lower a replacement engine into a haul truck. The crane’s overhaul hook ball detached and fell on Miller. The US Department of Labor and MSHA partnered with the Rensselaer County District Attorney’s Office on the case.
“The solution to Wisconsin’s worker shortages is not shorter workers.” — Wisconsin Assemblywoman Deb Andraca
The Solution to the Worker Shortage is Not Shorter Workers
Missouri is the latest state attempting to roll back child labor protections. Republican legislators are attempting to eliminate a certification process that require requires that 14- and 15-year-olds who want to work to get a work certificate issued by their schools, as well as parental consent. But that certification is not just paperwork. It also requires the employer to provide kids with information about specific duties and hours. According to the Economic Policy Institute, about a dozen states have loosened their child-labor laws since 2021. The main motivator behind the legislation is the ongoing labor shortage, which is why the bill is backed by the Missouri Grocers Association, the Missouri Retailers Association and the Missouri Chamber of Commerce. But instead of paying workers more, employers and Republicans are seeking to hire more exploitable youth. As Wisconsin Assemblywoman Deb Andraca observed when responding to a similar effort in her state, “The solution to Wisconsin’s worker shortages is not shorter workers.”
Employ Children, Pay the Price
States like Missouri may think that child labor is the future, but President Biden’s Wage and Hour Division understands that it’s against the law, and violators must pay. Big time! Which is why “In one of the largest wage violation settlements ever reached for U.S. poultry workers, a federal court in Los Angeles has entered a consent judgment that orders Fu Qian Chen Lu, Bruce Shu Hua Lok and others as owners and operators of a network of California poultry processors and distributors to pay $4.8 million in back wages and damages to 476 workers and $221,919 in penalties after a U.S. Department of Labor investigation. ”
The settlement requires the employers to give up $1 million in profits earned from the sale of goods tainted by oppressive child labor and pay assessed penalties of $171,919 for their child labor violations. The judgment follows the grant of a temporary restraining order that barred the shipment of hot goods into commerce and required the employer to disgorge all profits related to any such shipment.
What did they do? According to DOL’s Wage and Hour Division, they not only illegally employed children as young as 14 years old, but had them to use sharp knives to debone poultry, a violation of federal child labor regulations. They also denied the poultry- and red meatcutters and packers overtime wages for hours over 40 in a workweek and falsified payroll records to obstruct the probe.
But wait! It gets worse:
After the investigation began in January 2024 by the Wage and Hour Division’s Los Angeles District Office, the supervisors at the employers’ facilities began retaliating against the workers, telling them they put the “noose around their own necks” for talking to the department and calling them derogatory slurs, as well as changing the terms of employment. The employers’ prior counsel also flatly refused to respond to any of the agency’s administrative subpoenas and attempted to obstruct the investigation, leading to a successful action to enforce subpoenas and obtain an order against the supervisors for retaliatory conduct.
Sounds like it was the company, not the workers, who put a noose around their own necks. And definitely a candidate for next year’s….
Dirty Dozen
With all the workers getting injured and killed every day in preventable workplace incidents where employers neglect safety and health protections, it’s a challenge to identify the worst of the worst employers. But someone has to do it.
In anticipation of Workers Memorial Day last week, the National Council for Occupational Safety and Health released its annual Dirty Dozen report. The report identifies the most “unsafe and reckless employers, risking the lives of workers and communities by failing to eliminate known, preventable hazards – and in at least one case, actively lobbying against better protections for workers.” This year’s lucky winners were the Alabama Department Of Corrections, Ascension, Black Iron/XL Concrete, Costa Farms, Florence Hardwoods, Mar-Jac Poultry and Onin Staffing, Space X and the Boring Company, Tyson Foods, Valor Security and Investigations, Uber And Lyft, Waffle House and Walmart.
The report details why the companies qualified for this year’s Dirty Dozen. A few examples are the Alabama Department of Corrections which uses forced labor in Alabama prisons that disproportionately targets Black men and women, who face hazardous conditions for $2 a day or less. Private companies and state agencies make $450 million a year from forced labor. Then there’s Mar Jac Poultry and Onion Staffing for the tragic death of Duvan Pérez, an immigrant teenager who was killed at a Mar Jac plant. Uber and Lyft were chosen because over 80 mobile app workers have been killed on the job since 2017. Waffle House Restaurants is listed because the chain chain has “developed a reputation as a hotbed for violence.” A worker was shot and killed in 2022; multiple shootings already in 2024. Buy Waffle House workers are organizing to win better safety and security. And Space X was selected because workers suffer crushed limbs, amputations, chemical burns and a preventable death at companies owned by billionaire Elon Musk. Workers say Musk is obsessed with speed, but disregards safety.
Hot Summer for California Corrections Officers — and Other Indoor Workers
I reported a couple of weeks ago that California’s indoor heat standard was halted on the eve of promulgation by the Department of Finance who had concerns about the costs that California corrections facilities would have to bear to keep tens of thousands of corrections employees cool. The California Department of Finance estimated that the original rule could cost the state prison system billions more dollars than the workplace agencies had estimated. Hard to believe, in my humble opinion, given that a Rand study recently estimated that the cost to employers in the entire state would be $215 million in the first year and about $88 million annually afterward. Some California’s 33 state prisons, conservation camps, and local jails are located in the desert and most are currently cooled with fans or evaporative coolers.
Cal/OSHA announced last week that it plans to revise the proposed indoor heat rule to carve out “state and local correctional facilities.” But this may also be bad news for workers in warehouses, restaurants and manufacturing because it is unlikely that the Cal/OSHA Standards Board will have time to issue the revised rule until well into summer at the earliest. California has had regulations protecting outdoor workers since 2006. The proposed indoor heat standard would require employers to provide cooling through air conditioners, fans or other devices when the indoor temperature or heat index reaches 87 degrees, or 82 degrees in places where workers wear heat restrictive clothing. The state will propose a new rule to address heat for jail and prison workers. That process will likely require a separate cost analysis and public hearing, and could take anywhere from a few months to a few years.
WHO: Droplet Dogma Drops Dead
We have written often about the reluctance of the CDC and the World Health Organization (WHO) to recognize that diseases like COVID are spread by aerosols and that N-95 respirators (and not surgical masks) are necessary to protect healthcare workers. Well, the WHO as finally ” issued a report that transforms how the world understands respiratory infections like covid-19, influenza, and measles.
Motivated by grave missteps in the pandemic, the WHO convened about 50 experts in virology, epidemiology, aerosol science, and bioengineering, among other specialties, who spent two years poring through the evidence on how airborne viruses and bacteria spread.
According to former AFL-CIO Health and Safety Director Peg Seminario, “The dogma that droplets are a major mode of transmission is the ‘flat Earth’ position now. Hurray! We are finally recognizing that the world is round.”
Meanwhile, the CDC has still not finalized its respiratory protection guidance as worker safety and health activists continue to pressure the agency to recognize aerosol transmission.
Methylene Chloride Banned. Finally
Methylene Chloride kills workers. Acute exposure to the solvent and paint stripper, often used to refurbish bathtubs, has killed at least 88 people since 1980. These were mostly workers engaged in bathtub refinishing or other paint stripping. In some cases, workers were while fully trained and equipped with personal protective equipment. I wrote about one such tragedy here.
At least 88 people since 1980 from acute exposure to methylene chloride
Last week, EPA announced that it would ban most commercial uses of methylene chloride in paint strippers. The new rule requires companies “to rapidly phase down manufacturing, processing and distribution of methylene chloride for all consumer uses and most industrial and commercial uses, including its use in home renovations. Consumer use will be phased out within a year, and most industrial and commercial uses will be prohibited within two years.”
During the Clinton administration, OSHA regulated methylene chloride to prevent the chemical from causing cancer and other health effects. The Obama administration had proposed to ban the use of the stripper due to the deaths of numerous workers and citizens who weren’t aware of the highly hazardous properties of the solvent in enclosed spaces.
But the Trump administration reversed those efforts, arguing essentially, that if workers couldn’t figure out the instructions on the label, they deserved to die. Efforts by environmental and worker advocates had successfully pressured most retail distributers to pull the stripper from their shelves, but it was still available to contractors.