Tuesday, May 10, 2005

OSHA: Let's Punish The Bastards (but don't tell anyone)

I'm having trouble figuring out what's going on at OSHA. They're behaving like a little kid with a bad reputation who does something good, but hides it out of embarassment -- or perhaps because he feels like his "friends" will beat him up if they find out he's done something slightly upstanding.

Last month OSHA issued a new directive on Fatality/Catastrophe Investigation Procedures. I didn't find this out by reading an OSHA press release. I discovered it in an article in Occupational Hazards which also notes that
Amid increasing signs that OSHA is ramping up enforcement against what it considers "bad actors," the agency referred a total of 18 cases to the Department of Justice (DOJ) for criminal prosecution during 2003 and 2004, a level not seen since 1990-1991.

A 2-year period is more indicative of trends in OSHA's criminal referral record, because the number often fluctuates greatly from year to year.
The new compliance directive covers all fatality and catastrophe investigations and states that such investigations must be done with extreme care to determine if they can be considered willful, "because of the potential for criminal referral by OSHA/DOL to the Department of Justice." A catastrophe, according to OSHA, is where three or more workers is hospitalized.

A willful violation has occurred when
There is reason to believe that the employer was aware of the requirements of the standard and knew that he was in violation of the standard, or that the employer was plainly indifferent to employee safety.
The directive also notes that
In addition to criminal prosecution under Section 17(e) of the OSH Act, employers may potentially face prosecution under a number of other sections of the United States Code, including, but not limited to:
  • Crimes and Criminal Procedures, for actions such as conspiracy, making false statements, fraud, obstruction of justice, and destruction, alteration or falsification of records during a federal investigation

  • The Clean Water Act

  • The Clean Air Act

  • The Resource Recovery and Conservation Act (RCRA)

  • The Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)
In fact, this is the same program that David Barstow and Lowell Bergman wrote about last week in the New York Times. The reason it's important to use the environmental laws listed above is that monetary penalties and potential jail time for violation of environmental laws are far stiffer than penalties for willfully violating the Occupational Safety and Health Act (OSHAct) -- even when it leads to the death of a worker. Under the OSH Act, when a worker is killed, employers can only be charged with a misdemeanor and up to six months in jail, but violating environmental and fraud laws can lead to felony convictions with substantial jail terms.

So are we seeing a major change in the way workplace deaths are prosecuted in this country? That's unlikely. Eighteen prosecutions is certainly better than previous years, but they're only a small fraction of the willful citations involving deaths or multiple injuries that occur every year.

Second, as Occupational Hazards notes,
Although the numbers of criminal referrals is up, it is too soon to tell whether the increase will lead to more convictions. So far, DOJ has handed down indictments in one of the 18 cases and decided not to prosecute eight others; no decision has yet been made on the remaining nine cases, according to information supplied by OSHA. In previous years, DOJ has typically declined to prosecute almost half the cases referred to it by OSHA.
As I've written before, this new program is clearly the result of the embarrassment suffered by OSHA as a result of the two 2003 New York Times series by David Barstow and Lowell Bergman that exposed the failure of OSHA and the Department of Justice to pursue criminal charges against employers who willfully kill their employees.

The odd thing is that OSHA acts almost embarrassed about the new program. As Barstow and Bergman pointed out last week, the administration has been reluctant to publicize its efforts. It cancelled a press conference to announce the program, demoted it from a “Worker Endangerment Initiative” to a “policy decision,” and neither acting OSHA Assistant Secretary Jonathan Snare, nor DOL’s head attorney, Solicitor Howard Radzely would speak to the Times about the program.

As I said above, the new compliance directive just appeared on the OSHA website without any announcement or press release. Given the time of year it appeared, a savvy P.R. person might have thought that the announcement of an aggressive new enforcement program would have made a much better Workers Memorial Day event than the half-assed press release issued by OSHA.

On the contrary, according a mysterious OSHA/DOL employee code-named "Walking Shadow" who left a comment on my article about OSHA's WMD "observance,"
OSHA's National Office took no notice of Worker Memorial Day--there was no message or e-mail from the Secretary or the Acting Assistant Secretary to OSHA staff. 28 April was also the occasion of the Department of Labor's annual honor awards ceremony, but neither Secretary Chao nor anyone else said a word about Worker Memorial Day.
So are they afraid their friends over at the Chamber of Commerce, National Association of Manufacturers or National Federation of Independent Business will beat them up if they find out OSHA's been acting like a goody-two-shoes by actually making an effort to fulfill some of its mandate?

Or are they afraid that too much talk about the need to use environmental laws to get significant workplace penalties will lead people to ask why we don't just amend the OSH Act to increase penalties so that OSHA doesn't have to wait for an employer to kill fish and birds before he can be effectively punished. That would make too much sense (and ex-exterminator Tom Delay and his friends in Congress probably wouldn't go for it.)


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