Monday, December 12, 2005

Kansas City Star Clobbers OSHA

It's a delightful, but all-too-rare occurence when reporters (and not just lonely bloggers) actually see the sham that this nation's attention to workplace safety has become.

Only hours after starting his first day on the job, Les James was dead.

The 25-year-old father of three was working on a window-cleaning crew in July 2000. Suddenly, the window-washing rig fell off the roof of Research Medical Center, catapulting James to his death 84 feet below. Two other window washers were seriously injured.

That morning, the Occupational Safety and Health Administration launched an investigation. OSHA cited the Holden, Mo., window-cleaning company — which had a fatal accident only four years earlier — for serious safety violations in James’ accident, records show.

The company’s fine: $2,700.
So begins a Kansas City Star series on OSHA and workplace deaths, focusing on the low penalties for workplace deaths. I'm officially nominating Star reporter Mike Casey for Confined Space Journalist of the Year. Instead of just regurgitating the usual "on one hand...on the other hand" debate, Casey and Star staff analyzed 27,281 Kansas records in the Occupational Safety and Health Administration’s inspection database from July 1972 through January 2005, looked at trends in average fines and industries with the most fatal or serious injury accidents, interviewed more than 100 people and reviewed thousands of pages of records for these stories. And with the National Institute for Computer-Assisted Reporting in Columbia analyzed the 3.3-million record OSHA database for the United States and its territories

What has emerged is a tragic indictment of this country's commitment to ensure a safe workplace for every American worker, a story that would be news if it were actually news. Unfortunately, as the Star found, James's story is just business as usual for the agency charged with protecting the health and safety of American workers:

The Star found that in 80 such fatal and injury accidents, half of the fines Kansas City area employers paid were $3,000 or less. Regulators and OSHA lawyers reduced employers’ initial fines by nearly 60 percent. Adjusted for inflation, fines last year averaged less than they were in 1972.

And in three accidents that killed five area workers, OSHA changed its most serious citations from willful violations to “unclassified” — removing the word “willful” in describing the violations — and then significantly reduced the fines.

Nationwide, fines were even lower in the last decade. Half of the fines employers paid were $2,500 or less in fatal and injury accidents involving at least one serious violation.

Many experts said low fines were a symptom of the agency’s weakness, even when taking enforcement action in the worst accidents.

But the current administration defends the "penalties," having discovered new laws of human nature: people actually don't respond to fines or punishments -- I guess because they really just wanted to do the right thing all along:

“As far as we’re concerned, the amount of the penalty is incidental to the accomplishment that we get as the result of that inspection,” [OSHA Regional Administrator Charles] Adkins said.

But even former OSHA administrators decried the low fines.
“Fines are not a deterrent,” said Charles Jeffress, who led the agency in the Clinton administration. “The level of fines that Congress has authorized is an insult to the American worker.”

Jerry Scannell, an OSHA administrator in the administration of President George H.W. Bush, said: “It’s almost like chump change with some companies.”

OSHA’s own policies state that penalties should be “sufficient to serve as an effective deterrent to violations.”

But the agency is limited by law to maximum civil fines of $7,000 for each serious violation and $70,000 for each willful violation. Those maximums have not been raised since 1991. And OSHA’s policies allow it to reduce fines for companies with fewer than 251 employees and for other factors.The rest of the article joins the debate over whether OSHA fines do any good. Advocates of stronger penalties argue that because OSHA can visit relatively few workplaces every year, big penalties are needed to set an example. But even the Star doesn't realize how few workplaces OSHA is able to visit, claiming that "It would take inspectors many years to visit every workplace under their jurisdiction."

Years? Not even close. Actually, according to the AFL-CIO, on a national basis, it would be closer to a century for OSHA inspectors to visit every workplace in the country.

Interestingly, opponents use the same facts to argue against higher penalties:

“A lot of employers … are never going to see an OSHA inspector, and that fear is never going to motivate them,” said Marc Freedman. “I’m not convinced employers look at the OSHA citation situation in deciding whether they’re going to do the right thing in protecting their employees.”

Indeed, some businesses said the fear of workers’ compensation costs is a bigger factor in eliminating safety hazards than OSHA fines.
Actually, if anyone thinks that either fines or workers comp is an adequate deterrent, I have a 15 foot deep unshored trench I'd like you to climb down into.

Susan Baker, a professor of public health at Johns Hopkins University who has expertise in occupational safety, argues that “Until the fine for ignoring a hazard is bigger than the cost of fixing the hazard, a lot of employers won’t do anything.”

Well, OSHA has a long way to go before its penalties are that high.

The Star also discusses an OSHA innovation -- the "unclassified penalty."

About 15 years ago, OSHA began changing some of its willful safety violations — its most serious charge — to “unclassified.”

The reclassification does not change OSHA’s findings, but it removes the words “willful,” “repeat” or “serious” in describing the nature of the violations, OSHA’s Adkins said.

OSHA records show that the agency uses the unclassified citations as a “settlement tool” to correct safety hazards quickly and avoid lengthy litigation. The change also allows employers to avoid the stigma of being labeled a willful violator, records noted.

But the newspaper found that changing willful violations to unclassified in at least three local fatal workplace accidents also was accompanied by dramatically lower fines.

Adkins said the agency has a policy of collecting at least 80 percent of a proposed penalty in settlements that involve unclassified violations, but he acknowledged, “That doesn’t always occur.”

Indeed. Casey goes on to cite three cases where OSHA penalties were reduced from 40% to 72% after the penalties were downgraded from "willful" to "unclassified.

“I think it’s really outrageous,” said Peg Seminario, director of safety and health for the AFL-CIO. “There should be no unclassified citations, particularly in the case of fatalities.”

Oh, and by the way, don't waste a lot of time looking for "unclassified penalties" in the OSHAct -- because they don't exist. Congress must of overlooked the benefits of helping employers avoid the stigma of being known to their friends as willful killers.

And then there's this old news:

Killing Workers Is A Misdemeanor, according to the OSH Act

That fact is nothing new to Confined Space readers, but I'm thinking most Americans would be shocked. As Clinton Administration OSHA director Charles Jeffress says: “By saying, ‘It is a misdemeanor to willfully kill a worker’ just underscores the lack of value put on a worker’s life by Congress.”

“They’ve gotten out of the standards business.”

So says Eula Bingham, who led the agency in the Carter administration. Even Jerry Scannel of the Bush I administration agrees:
“Standards development has been slow — slower than it should be.” Scannell suggested that Congress or the Labor Department could require the agency to establish safety and health standards within three years.
Hmm, interesting idea. I wonder what current OSHA leadership thinks about that suggestion?
The Star requested an interview with acting OSHA Administrator Jonathan Snare to discuss standards, but he declined. A Labor Department spokesman said it was inappropriate for Snare to comment while the nomination of Edwin Foulke Jr. as OSHA administrator was pending before the Senate. Foulke also declined to be interviewed.

In a written statement, OSHA said the Bush administration had issued some standards, but not ones that would have wide economic impact.
As usual, this excellent series leaves me with mixed emotions. Although it's great that the Star invested so much inand resources developing this series, it also points out how pathetic most of the rest of the media is in this country. There's no reason to believe that the situation in Kansas is unique. There should be reporters in every state busy writing similar articles. And readers should rise up and force politicians to try and defend the underfunding and understaffing of OSHA. They should be forced to go before the parents, spouses and children of those who gave their lives so cheaply to earn a living and defend their refusal to strengthen OSHA's penalty structure.

And anyone who whines about how oppressed small businesses are by evil OSHA regulations, or dares to support the shameful legislation in Congress that further weakens OSHA should be kicked unceremoniously out of office.

Oh, and one more thing, Mr. Casey. For your next story you might want to look into a group of Kansas workers who are in even worse shape than the employees you just covered: public employees in Kansas (and 26 other states) who have no OSHA protection. Another story that shouldn't be news.

Kansas City Star Series