The subcommittee on Workforce Protections of the House Education and Labor Committee heard testimony today on the “Protecting America’s Workers Act” (PAWA) (H.R. 2067) from OSHA assistant secretary David Michaels.  In the Obama/Solis’ Administration’s first official statement about the legislation, Dr. Michaels said they:

“strongly support the goals of PAWA” (p.2)

Decoded, that means they are OK with some of the provisions, but others are giving them heartburn or worse.   Notably, Mr. Jonathan Snare testifying on behalf of the US Chamber of Commerce (and former GW Bush/DOL office (acting OSHA chief and acting Solicitor of Labor)) said

“the goals behind PAWA are laudable.” (p.3)

Other than that, the written statement and responses to questions from Mr. Snare were predictable: “penalties will not solve the problem,” “enforcement alone will not solve the problem,” “OSHA needs a balanced approach,” blah, blah, blah.  The best part of the hearing was when Eric Frumin of Change to Win challenged some of Mr. Snare’s assertions.   The former acting OSHA chief and acting solicitor suggested that the legislation was overreaching, when the problem is simply “the conduct of a few outlier employers.”  Mr. Frumin interjected, asking whether Cintas, BP, McWane, Xcel Energy, and others are mere outliers.

Dr. Michaels commented briefly on each of the major provisions of PAWA.  On the current allowable dollar amount of monetary penalties, he indicated:

“The current penalties do not provide an adequate detterent.   … PAWA makes much needed increases in both civil and criminal penalties for every type of violation of the OSH Act and would increase penalties for willful and repeat violations that involve a fatality to as much as $250,000.  … These increases are not inappropriately large.   … Simply put, OSHA penalties must be increased to provide a real disincentive for employers not to accept injuries and worker deaths as a cost of doing business.” (p.5)

Dr. Michaels also appeared to endorse the amendments to the criminal provisions of the OSH Act.  He said:

“…serious violations of the OHS Act that result in death or serious bodily injury should be felonies like insider trading, tax crimes, customs violations and anti-trust violations.” (p.7)

And, he endorsed the proposed burden of proof from “willfully” to “knowingly” which is consistent with the term used in other federal environmental and regulatory crimes.

Dr. Michaels offered strong support for most of the whistleblower provisions of PAWA saying:

“These legislative changes in the whistleblower provisions are a long-overdue  response to deficiencies that have become apparent over the past four decades.”

He did express “reservations” about the option of allowing employees in OSHA State Plan States choosing to file their complaint with federal OSHA or their State OSHA.  He suggested:

“…it would be a signficant drain on OSHA resources and those of the Solicitor of Labor.”

Dr. Michaels also suggested the Administration could support coverage of public sector employeees–that is, the 10 million workers employed by State and local governments (e.g. teachers, city maintenance workers, nurses, etc.) in 24 States who are not covered by OSH Act protections.  The OSHA chief qualified his statement with:

“Realizing the fiscal difficulties that many States now face we would like to have further discusssions with the committee about the details of this section.”

For the last few years, I’ve heard assertions that the opposition by State/local governments to OSH Act protections for their employees is driven by fiscal concerns.  It’s a claim that deserves close scrutiny.  I think the claim goes like this:

“If we, the Town of X, have to provide a healthy and safe workplace as required by OSHA it is going to cost us too much money.”

To which I would say:

“Hey, Town of X, you don’t provide your employees with a safe workplace?  Tell me, what specific OSHA requirement is too onerous: fall protection? shoring trenches? machine guarding? lockout/tagout?”

That excuse should never we tolerated for private companies, nor should it for the public sector.   Besides, if I asked a group of city managers or State Governors if they provide a safe workplace for their employees, I bet every last one of them would say “YES!”    I’ve yet to see the evidence that extending OSHA coverage to public sector employees would be a fiscal burden to State/local governments.   If anywhere, the additional resource demand would be on federal OSHA, which might investigate fatalities involving public sector employee or respond to worker complaints of hazards.

Finally, Dr. Michaels addressed the “Victim’s Rights” provisions of the legislation, saying:

“PAWA includes a number of sections that would expand the rights of workers and victims’ families. For the past 15 years OSHA has informed victims and their families about our citation procedures and about settlements, and talked to families during the investigation process.  PAWA would ensure this policy is strengthened and made permanent, as well as increase the ability of victims and family members to more actively participate in the process.” (p.14)

When this part of Dr. Michaels’ testimony began, the email exchanges were flying among family members who were eagerly awaiting his remarks.  I read the ambivalence in their comments.  Was he saying that OSHA’s had a policy on its book for 15 years about contacting family-member victims so this is nothing new for them?  Does he really have confidence that it is done well in all of OSHA’s offices and the State Plans?

I’ll let families members who’ve lost loved ones  victims of workplace fatalities speak for themselves.  Here’s one mother’s reaction (her step son was killed at work):

I:  “For the past 15 years OSHA has informed victims and their families about our citation procedures and about settlements, and talked to families during the investigation process“.  Really???    Our family WAS NOT informed about citation procedure, settlements, or investigation.  We received a letter stating the company had been found at fault and issued a fine of $4500.  Later we read in the state newspaper that the fine had been reduced to $2250.   We would have traveled any distance to meet with OSHA.  Especially in discussing the reduced fine.  Where is the accountability in such a meager amount?  NONE.

“Also, it would have been an opportunity for us to discuss the many statements we had been told by current and recent employees of the company in regards to injuries that were not being reported.   By not reporting injuries these companies see a reduced cost in workers comp rates.  Many, many people are not aware that because of workers compensation, families of fataliy injured workers have NO legal options.  The company is very well protected.”

Then, Dr. Michaels expressed this reservation about the proposed victim’s rights provisions:

“…we do believe that clarification is needed of the provisions allowing victims or their representatives to meet in person with OSHA before the agency decides whether to issue a citation, or to appear before parties conducting settlement negotiations. This could be logistically difficult for victims and OSHA’s regional and area offices, resulting in delays in the negotiations and ultimate citation, which hurt the victim in the long run.”

Responses I’ve received:

II:  “Logistically difficult for who??  I can’t think of anything more logistically difficult than having your world shattered by a preventable workplace death.”  

III:  “I agree – most anyone would immediately make whatever schedule change they had to in order to be at a meeting! Personally, I would have quit my job before letting [my boss] tell me I couldn’t go.”

IV: “…let’s be honest if we would have had the chance and knew what was going on, I wouldn’t be hearing that the 6 months has passed and nothing was done.  I knew a long time ago that [company X] should have been fined, and now it is too late.  OSHA didn’t listen to me when I said the [company] was not protected by a ‘grandfather clause’….very sad.”

V:  “If I had had the opportunity to meet w/ OSHA and be included in the settlement negotiations then the weekend long phone calls back and forth between NV OSHA and the gaming company officials, which left out specific and important people who were involved and should have had a voice in the decision, wouldn’t have happened!   They would not have negotiated the deal they did under the cover of darkness and secrecy.   They made a back room deal and it shows how wrong it was when the lead investigator was so angry he quit NV OSHA.  It was underhanded and meant to keep the truth and any justice out of it.” 

Dr. Michaels’ poor choice of words pales in comparison to the position of the U.S. Chamber of Commerce (the “world’s largest business federation representing the interests of more than 3 million businesses”) on the proposed Victim’s Rights provisions of PAWA:

“Given the legal nature of these proceedings, there does not appear to be much value to this presentation other than to sensationalize presumably already emotional and sensitive matters.” (p.8)

Mr. Snare, speaking on behalf of the U.S. Chamber of Commerce, said something that surprised me: “my family lost a member to a workplace accident.”   

Calling all USMWF families who will be in Washington, DC for Worker Memorial Day 2010: time to schedule a meeting with Mr. Snare.