GAO Tells OSHA To Intimidate Workers

In 1996, in an effort to make its inspection efforts more efficient, OSHA introduced its "phone-fax" process where employees could phone or fax in a complaint, instead of sending in a written, signed complaint form. Although employees still retained the option to request an on-site inspection, the phone-fax procedure enabled OSHA to phone or fax the employer about less serious hazards, alerting him or her of the complaint and then request documentary evidence that the complaint had been addressed. At the request of Congressman Charlie Norwood (R-GA), the Government Accounting Office has investigated whether this policy is allowing OSHA to conserve its resources, respond to complaints and identify serious hazards.

I haven't studied the complete report too carefully, but one GAO recommendation is quite troubling.

Interviews conducted by GAO found that some inspections resulting from the phone-fax process were "not necessarily warranted because they have inadequately or inaccurately characterized the nature of he hazard." One reason was that complainants often have a "limited knowledge of OSHA's health and safety standards or may not completely understand what constitutes a violation."

In addition, about half of the OSHA area office directors and compliance officers reported receiving complaints from employees (and sometimes ex-employees) "as retribution" against their employers because they had been fired or were angry with their supervisors. "Some" compliance officers reported "an increase in the number of complaints during contract negotiations," but over half of those interviewed said that "almost all of the complaints they see warrant an inspection or investigation." According to another official, "managers seldom find that a complaint was filed to willfully harass an employer."

Overall, GAO found that in both inspections at workplaces that were "targeted" by OSHA (based on a high injury/illness rate in a high risk industry), as well as complaint-driven inspections, serious violations were found in only half of the worksites they inspected.

In order to increase the percentage of inspection that find serious hazards, GAO made three recommendations:

• reminding complainants of the penalties for providing false information,
  
  
• conducting outreach to employees regarding hazards, and
  
  
• encouraging employers to have safety committees that would initially address complaints.

The second and third recommendations clearly make sense, although OSHA is going in the exact opposite direction of the second recommendation by attempting to eliminate the Susan Harwood worker training program.

The first recommendation, however, is very troublesome. First, although there are some anecdotal stories of workers deliberately filing false or exaggerated complaints, there is no indication that this is a major problem and many OSHA officials don't see it as a problem at all.

The law states that "Violations can be punished by a fine of not more than $10,000. or by imprisonment of not more than six months, or by both." When I was at OSHA working on the worker web page, early versions included the notice reminding complainants of these penalties on almost every page, in addition to the existing warning on the downloadable written complaint form, as well as the on-line complaint form.

After asking around, we found, first, that no one remembered a single instance where this sanction had ever been used against a worker. But most important, there was a general consensus that repeating this warning too many times would intimidate workers from filing complaints for fear that even an honest mistake could mean a $10,000 fine or jail time.

And anyone who reads this web page (especially the Weekly Toll) or knows anything about workplace safety conditions in this country knows that the last thing the federal government needs to do is to discourage more workers from filing complaints.

And what was OSHA's response? To his credit, Assistant Secretary John Henshaw protested that the law guarantees workers the right to request an inspection if they believe that a serious hazard exists.

As such, any action taken by the Agencythat discourages the exercise of this right could deter employees fro requesting workplace inspections and thus would need to be considered in recognition of the fundamental right established by the act. The challenge is to pursue administrative efficiency while assuring that the rights of workers, as provided by the statute, are not eroded.

GAO responded that they still "believe that the agency could take such actions without discouraging employees from filing legitimate complaints." If their belief is based on anything aside from wishful thinking, they aren't letting on.

Regarding the outreach recommendation, Henshaw stated that the agency was already conducting a "wide variety of outreach programs and activities through its extensive compliance assistance program."

As far as health and safety committees go, "OSHA does believe that labor-management cooperation should be encouraged. However, OSHA does not and should not, specify the manner in which such cooperation takes place."

What we have here is a failure by GAO to understand what goes on in an American workplace and the courage it takes for workers -- especially unorganized or immigrant workers -- to file an OSHA complaint. Part of this ignorance could be due to the fact that GAO only interviewed six workers as part of this investigation, and no union representatives.