Letters to the NY Times

The NY Times has published a number of letters to the Editor in response to David Barstow's series on workplace safety.

The first is by Assistant Secretary of Labor for OSHA, John Henshaw.

First, the shorter version of his response to the Time's accusation that OSHA's pursuit of criminal penalties leaves something to be desired:

"Whatever!"

And the original version:

Under the Occupational Safety and Health Act, responsibility for worker health and safety rests with employers. OSHA helps employers meet their obligations through compliance assistance and enforcement.

One enforcement tool is referral for criminal prosecution. However, many cases do not reach the high burden of evidence for successful criminal prosecution — proving each element of a violation beyond a reasonable doubt.

For a civil citation, a lesser standard suffices — preponderance of the evidence. The department does not refer cases that do not meet the higher burden of proof required for criminal prosecution by the Justice Department.

We will continue to use every tool at our disposal, and we will continue to strongly enforce all workplace safety and health laws.

A similar point is made by a former prosecutor:

What is not mentioned, however, is the practical reality of prosecuting this type of case. Prosecutors with limited resources and time must make difficult decisions about the types of serious cases that they will take before juries. When faced with choices between prosecuting cold-blooded killers or employers who have cut corners in order to make a living, the former win out every time.

Also, there is a greater standard of proof required to convict people criminally than to find civil liability, and unlike jury decisions in civil trials, criminal verdicts must normally be unanimous. It is little wonder that OSHA seeks civil remedies given the constraints of the system under which it operates.

Two points to be made here. First, I find it hard to believe that, even with the higher standard of proof, that a jury wouldn't convict the employer who was the subject of Barstow's trench collapse article -- Previous trench fatality, full knowledge of trench hazards, caught putting workers into an unsafe trench two weeks before the fatality.

I'm not a prosecutor, but it sounds to me like the kind of case any prosecutor would love, IF (and this brings me to my second point), IF the penalty was worth the work that goes into trying the case, which currently it doesn't. This means the law needs to be changed, and Henshaw, if he's sincere about reducing workplace death, should be promoting the strengthening of OSHA's enforcement powers.

And a number of other letters here as well.

This guy's heart is in the right place, but I think he's blaming the wrong people:

OSHA is a prime example of a bureaucracy that "doesn't want to rock the boat" and protects the corporations and companies it is supposed to regulate. It needs many fewer paper pushers and managers and many more people on job sites.

Get those people out of their offices and into the field to conduct more inspections, or get rid of OSHA and start all over again with an organization that will actually protect workers and prosecute companies that do not operate construction sites in a safe manner.

Most OSHA inspectors would love to be more aggressive in going after employers who endanger workers. What's needed -- to begin with -- is more political will at the top, a Congress that isn't under the thumb of anti-regulatory business associations, significantly more funding, and laws that make it easier to criminally prosecute.

Let OSHA be OSHA.