[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]
PROTECTING AMERICA'S WORKERS ACT: MODERNIZING OSHA PENALTIES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON
EDUCATION AND LABOR
U.S. House of Representatives
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, MARCH 16, 2010
__________
Serial No. 111-51
__________
Printed for the use of the Committee on Education and Labor
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COMMITTEE ON EDUCATION AND LABOR
GEORGE MILLER, California, Chairman
Dale E. Kildee, Michigan, Vice John Kline, Minnesota,
Chairman Senior Republican Member
Donald M. Payne, New Jersey Thomas E. Petri, Wisconsin
Robert E. Andrews, New Jersey Howard P. ``Buck'' McKeon,
Robert C. ``Bobby'' Scott, Virginia California
Lynn C. Woolsey, California Peter Hoekstra, Michigan
Ruben Hinojosa, Texas Michael N. Castle, Delaware
Carolyn McCarthy, New York Mark E. Souder, Indiana
John F. Tierney, Massachusetts Vernon J. Ehlers, Michigan
Dennis J. Kucinich, Ohio Judy Biggert, Illinois
David Wu, Oregon Todd Russell Platts, Pennsylvania
Rush D. Holt, New Jersey Joe Wilson, South Carolina
Susan A. Davis, California Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona Tom Price, Georgia
Timothy H. Bishop, New York Rob Bishop, Utah
Joe Sestak, Pennsylvania Brett Guthrie, Kentucky
David Loebsack, Iowa Bill Cassidy, Louisiana
Mazie Hirono, Hawaii Tom McClintock, California
Jason Altmire, Pennsylvania Duncan Hunter, California
Phil Hare, Illinois David P. Roe, Tennessee
Yvette D. Clarke, New York Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
Northern Mariana Islands
Dina Titus, Nevada
Judy Chu, California
Mark Zuckerman, Staff Director
Barrett Karr, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
LYNN C. WOOLSEY, California, Chairwoman
Carol Shea-Porter, New Hampshire Cathy McMorris Rodgers,
Donald M. Payne, New Jersey Washington,
Raul M. Grijalva, Arizona Ranking Minority Member
Timothy H. Bishop, New York Peter Hoekstra, Michigan
Phil Hare, Illinois Joe Wilson, South Carolina
Gregorio Kilili Camacho Sablan, Tom Price, Georgia
Northern Mariana Islands
C O N T E N T S
----------
Page
Hearing held on March 16, 2010................................... 1
Statement of Members:
Kline, Hon. John, Senior Republican Member, Committee on
Education and Labor........................................ 5
Prepared statement of.................................... 6
McMorris Rodgers, Hon. Cathy, Ranking Minority Member,
Subcommittee on Workforce Protections, submissions for the
record:
Prepared statement of the Coalition for Workplace Safety
(CWS).................................................. 101
Letter, dated, March 16, 2010, from the Associated
Builders and Contractors (ABC)......................... 102
Miller, Hon. George, Chairman, Committee on Education and
Labor, prepared statement of............................... 150
Questions submitted to witnesses and their responses..... 152
Titus, Hon. Dina, a Representative in Congress from the State
of Nevada, submission for the record: H.R. 4864............ 150
Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Additional submissions for the record:
H.R. 2067, Protecting America's Workers Act.......... 104
Summary of the Protecting America's Workers Act (H.R.
2067).............................................. 110
Clarification of the Mens Rea requirement............ 111
Discussion draft of the Protecting America's Workers
Act (H.R. 2067).................................... 111
Table: ``Changes to the Civil and Criminal Penalty
Provisions of the OSH Act Under PAWA''............. 122
Report, ``Discounting Death,'' U.S. Senate, Committee
on Health, Education, Labor, and Pensions, Internet
address to......................................... 123
Letter, dated March 11, 2010, from Hon. Dave
Freudenthal, Governor, State of Wyoming............ 123
Seminario, Peg, director, safety and health, AFL-CIO,
prepared statement of.............................. 123
Prepared statement of the American Industrial Hygiene
Association (AIHA)................................. 129
Rogers, Hon. Thomasina V., Chairman, Occupational
Safety and Health Review Commission, prepared
statement of....................................... 131
Ford, Tonya, Lincoln, NE, prepared statement of...... 133
Table: ``Maximum Penalties Adjusted for Inflation,
2000 to 2010''..................................... 134
Statement of Witnesses:
Cruden, Hon. John C., Deputy Assistant Attorney General,
Environment and Natural Resources Division, U.S. Department
of Justice................................................. 15
Prepared statement of.................................... 16
Response to questions submitted for the record........... 154
Additional submission: Supreme Court decision, Bryan v.
United States.......................................... 23
Frumin, Eric, health and safety coordinator, Change to Win... 55
Prepared statement of.................................... 79
Response to questions submitted for the record........... 159
Additional submissions:
Indictment of the Xcel Corp. in Colorado............. 57
Indictment of BP Products North America, Inc. in
Texas.............................................. 135
Inspection documentation of the Xcel Corp. in
Colorado........................................... 143
Michaels, Hon. David, Assistant Secretary for Occupational
Safety and Health, U.S. Department of Labor................ 7
Prepared statement of.................................... 9
Response to questions submitted for the record........... 165
Studies submitted for the record:
``How Much Work-Related Injury and Illness is Missed
By the Current National Surveillance System?'' by
Kenneth D. Rosenman, et al, American College of
Occupational and Environmental Medicine, April 2006 44
``Work Related Amputation in Michigan, 2007,''
Internet address to................................ 52
Snare, Jonathan L., partner, Morgan Lewis & Bockius LLP, on
behalf of the Chamber of Commerce.......................... 84
Prepared statement of.................................... 86
PROTECTING AMERICA'S WORKERS ACT: MODERNIZING OSHA PENALTIES
----------
Tuesday, March 16, 2010
U.S. House of Representatives
Subcommittee on Workforce Protections
Committee on Education and Labor
Washington, DC
----------
The subcommittee met, pursuant to call, at 10:00 a.m., in
room 2175, Rayburn House Office Building, Hon. Lynn Woolsey
[chairwoman of the subcommittee] presiding.
Present: Representatives Woolsey, Payne, Bishop, Hare,
Sablan, and McMorris Rodgers.
Also present: Representatives Titus and Kline.
Staff present: Aaron Albright, Press Secretary; Tylease
Alli, Hearing Clerk; Andra Belknap, Press Assistant; Jody
Calemine, General Counsel; Lynn Dondis, Labor Counsel,
Subcommittee on Workforce Protections; David Hartzler, Systems
Administrator; Sadie Marshall, Chief Clerk; Richard Miller,
Senior Labor Policy Advisor; Revae Moran, Detailee, Labor; Alex
Nock, Deputy Staff Director; James Schroll, Junior Legislative
Associate, Labor; Mark Zuckerman, Staff Director; Kirk Boyle,
Minority General Counsel; Ed Gilroy, Minority Director of
Workforce Policy; Rob Gregg, Minority Senior Legislative
Assistant; Richard Hoar, Minority Professional Staff Member;
Alexa Marrero, Minority Communications Director; Molly
McLaughlin Salmi, Minority Deputy Director of Workforce Policy;
Linda Stevens, Minority Chief Clerk/Assistant to the General
Counsel; and Loren Sweatt, Minority Professional Staff Member.
Chairwoman Woolsey. A quorum is present. The hearing of the
Subcommittee on the Workforce Protections will come to order.
At this time, I yield myself as much time as I require for
my opening remarks.
Thank you all for being here. This is an exciting day. This
morning's legislative hearing will examine the penalty
provisions of H.R. 2067, the Protecting America's Workers Act.
And we call it PAWA. So we will probably refer to that
throughout our--this morning in the hearing. And we are also
talking about the changes which have been circulated to further
improve the bill since it has been introduced.
Since I became chair of this subcommittee over 2 years ago,
I have made it my top priority to keep the promise of the
Occupational Safety and Health Act enacted 40 years ago to
protect the health and safety of American workers. There is no
question that this law has saved hundreds of thousands of
lives. And countless others have avoided preventable illnesses
and injuries.
But we can't claim victory, because over 5,000 workers a
year are still killed on the job. Fifty thousand die from
occupational disease. And millions of others become seriously
injured or ill.
This subcommittee, and Chairman Miller's full committee,
have held numerous hearings on OSHA's performance in carrying
out the mandates of the OSH Act. Members have heard story after
story of worker tragedies, and of deaths and injuries that
could have been prevented if the employer had followed OSHA
standards; and if OSHA had effectively enforced the law.
But now we have a new sheriff in town, with Secretary
Solis. And when she says she wants ``good jobs for everyone,''
she means that those jobs must be safe jobs. Already, under
Assistant Secretary Michaels' leadership, OSHA is addressing
some of the very problems that we have uncovered. So OSHA has
started down the right path.
And both Chairman Miller and I will continue to perform our
oversight function over the agency. However, there are
limitations on OSHA's effectiveness unless Congress makes
fundamental changes to the OSH Act, which is a law that has not
been updated since it was first passed in 1970. That is why,
last year, I reintroduced H.R. 2067, the Protecting America's
Workers Act. H.R. 2067 addresses three major weaknesses in the
OSH Act.
First, it provides OSHA coverage to the over 8.5 million
state, county and municipal workers who currently have limited
or no protection from safety and health hazards at work.
Second, the bill makes changes to OSHA's ``whistleblower''
provisions, because today's process is inadequate--putting off
decisions and depriving workers of due process. Finally, the
bill brings OSHA enforcement into the 21st century by updating
civil and criminal penalties. And that is what today's hearing
is about--civil and criminal penalty provisions in section 310
and 311 of PAWA, as well as the proposed changes to the
introduced bill.
Penalties are critical to the effective enforcement of the
OSH Act, otherwise they become meaningless. OSHA civil
penalties have not been increased in two decades, and they are
extremely low. In addition, the OSH Act is exempted from the
Inflation Adjustment Act, keeping penalties much, much lower
than they would be if they had been adjusted for inflation over
time.
And while OSHA can implement policy changes to increase the
size of some penalties, it is clear that without a change in
the penalty structure of the statute, they will never be high
enough to be an effective deterrent, especially for those
employers who are repeat violators. And the penalties under the
OSH Act pale in comparison to penalties under other laws.
For example, under the Mine Act, egregious violations can
carry civil penalties up to $250,000. The penalty increases in
PAWA are modest, and are roughly the same had the penalties
been adjusted for inflation after they were updated in 1990.
And these higher penalties also apply to OSHA state plans.
One of the critical features of PAWA's civil penalty
structure is that it establishes significant minimum and
maximum civil penalties for violations which result in the
death of a worker. Under current law, this is not the case. And
as a result, when a worker dies due to an employer's violation,
it is shocking how low the penalties turn out to be without a
mandatory minimum.
In January 2009, Robert Fitch fell 84 feet to his death at
an Archer Daniels Midland plant in Lincoln, Nebraska. The final
settlement agreement reached by OSHA for this preventable death
was exactly zero. This is unacceptable.
PAWA also makes needed changes to the criminal penalties,
including making top management liable for criminal misconduct.
Under current law, only corporations, and not corporate
officials, can be criminally liable for willful violations; and
this liability is limited only to cases where a worker has
died.
For example, a worker in Idaho suffered permanent brain
damage because, upon the orders of his employer, he entered a
tank of cyanide waste without the proper protective equipment,
in violation of OSHA's confined-space rules. The owner was
successfully prosecuted under the environmental laws, and he
was sentenced to 17 years in prison. But he could not be
prosecuted under the OSH Act because the worker didn't die. But
even if the owner had been prosecuted under the OSH Act, he
would have been guilty of a misdemeanor, and serve only 6
months in jail.
The Justice Department has advised us that criminal
misdemeanors under the OSH Act are rarely prosecuted. PAWA
changes that. Employers, including top executives, can serve up
to 10 years in jail for criminal behavior which causes the
death or serious injury of a worker.
Congress needs to put teeth into these penalties so that
employers are held accountable for their bad behavior, and so
that they no longer view penalties as part of the cost of doing
business.
I look forward to hearing from our witnesses. But before I
introduce the panel, I recognize Ranking Member Kline for his
opening statement.
[The statement of Ms. Woolsey follows:]
Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman,
Subcommittee on Workforce Protections
This morning's legislative hearing will examine the penalty
provisions of H.R. 2067, the Protecting America's Workers Act (PAWA),
and the proposed changes, which have been circulated to further improve
the bill.
Since I became chair of this subcommittee over two years ago, I
have made it my top priority to keep
The promise of the occupational safety and health act enacted 40
years ago * * * to protect the health and safety of American workers.
There is no question that this law has saved hundreds of thousands
of lives, and countless others have avoided preventable illnesses and
injuries.
But we cannot claim victory because over 5,000 workers a year are
still killed on the job, 50,000 die from occupational disease, and
millions of others become seriously ill or injured.
This subcommittee--and Chairman Miller's full committee--has held
numerous hearings on OSHA's performance in carrying out the mandates of
the OSH act.
Members have heard story after story of worker tragedies and of
deaths and injuries that could have been prevented if the employer had
followed OSHA standards, and if OSHA had effectively enforced the law.
But now we have a new sheriff in town with Secretary Solis, and
when she says she wants ``good jobs for everyone,'' she means jobs that
are safe!
Already under Assistant Secretary Michael's leadership, OSHA is
addressing some of the very problems we have uncovered.
So OSHA has started down the right path.
And both Chairman Miller and I will continue to perform our
oversight function over the agency.
However, there are limitations on OSHA's effectiveness unless
congress makes fundamental changes to the OSH act itself a law, which
has not been updated since it was first passed in 1970.
That is why last year I reintroduced HR 2067, the protecting
America's workers act (PAWA).
HR 2067 addresses three major weaknesses in the OSH act.
First, it provides OSHA coverage to the over 8.5 million state,
county and municipal workers, who currently have limited or no
protection from safety and health hazards at work.
Second, the bill makes changes to OSHA's whistleblower provisions
because today's process is inadequate; putting off decisions and
depriving workers of due process.
Finally, the bill brings OSHA enforcement into the 21st century, by
updating civil and criminal penalties.
And that is what today's hearing is about: the civil and criminal
penalty provisions in sections 310 and 311 of PAWA, as well as the
proposed changes to the introduced bill.
Penalties are critical to the effective enforcement of the OSH act;
otherwise they become meaningless.
OSHA civil penalties have not been increased in 2 decades and are
extremely low.
In addition, the OSH act is exempted from the inflation adjustment
act keeping penalties even lower.
And while OSHA can implement policy changes to increase the size of
some penalties, it is clear that without a change in the penalty
structure of the statute, they will never be high enough to be an
effective deterrent, especially for those employers who are repeat
violators.
The penalties under the OSH act pale in comparison to penalties
under other laws.
For example, under the mine act, egregious violations can carry
civil penalties up to $250,000.
The penalty increases in PAWA are modest and are roughly the same
Had the penalties been adjusted for inflation after they were
updated in 1990.
And these higher penalties also apply to OSHA state plans.
One of the critical features of PAWA's civil penalty structure is
that it establishes significant minimum and maximum civil penalties for
violations, which result in the death of a worker.
Under current law, this is not the case, and as a result, when a
worker dies due to an employer's violation, it is shocking how low
these penalties turn out to be without a mandatory minimum.
In January 2009, Robert Fitch fell 84 feet to his death at an
Archer-Daniels-Midland plant in Lincoln, Nebraska.
The final settlement agreement reached by OSHA for this preventable
death was exactly zero!
This is unacceptable.
PAWA also makes needed changes to the criminal penalties, including
making top management liable for criminal misconduct.
Under current law, only corporations and not corporate officials
can be criminally liable for willful violations, and this liability is
limited only to cases where a worker has died.
For example, a worker in Idaho suffered permanent brain damage
because--upon the orders of his employer--he entered a tank of cyanide
waste without the proper protective equipment in violation of OSHA's
confined space rules.
The owner was successfully prosecuted under the environmental laws,
and he was sentenced to 17 years in prison.
But he could not be prosecuted under the OSH act because the worker
did not die.
But even if the owner had been prosecuted under the OSH act, he
would have been guilty of a misdemeanor and served only six months in
jail.
The justice department has advised us that criminal misdemeanors
under the OSH act are rarely prosecuted.
PAWA changes that: employers--including top executives--can serve
up to 10 years in jail for criminal behavior, which causes the death or
serious injury of a worker.
Congress needs to put teeth into these penalties so that employers
are held accountable for their bad behavior and no longer view
penalties as part of the cost of doing business.
I look forward to hearing from our witnesses, but before I
introduce panel one, I recognize ranking member McMorris-Rodgers for
her opening statement.
______
Mr. Kline. Thank you, Madam Chair.
Good morning to all present.
Welcome to our witnesses.
This morning's hearing is, in congressional terms, a
legislative hearing. In other words, it is a direct examination
and review of a particular piece of legislation--in this case,
the Protecting America's Workers Act. This bill was introduced
in April of last year and, since that time, has undergone some
fairly substantial revisions. Through today's hearing, we will
have an opportunity to review the proposed changes and, I hope,
we will have a discussion about what other changes may be
needed.
The title of this hearing and the substance of the
legislation is described as ``Modernizing OSHA Penalties.''
Certainly, it is worthwhile to review penalties under the
Occupational Safety and Health Act, but I would suggest that a
discussion of workplace safety is incomplete if it only focuses
on penalties.
Witnesses in prior hearings have suggested that the
Occupational Safety and Health Administration must achieve a
balance between compliance assistance and enforcements. No one
is suggesting a 50-50 split. But a single-minded focus on
punishing individuals after accidents occur is simply the wrong
direction for federal policy.
More appropriately, the focus of OSHA should be on
preventing the accidents rather than merely responding to them.
A proactive safety approach is one that protects employees from
hazards and prevents accidents from happening.
The outliers for whom safety is not a concern will find no
sympathy from anybody on this committee. As with all federal
policy, when it comes to workplace safety, we must guard
against unintended consequences. For instance, one consequence
of upending 40 years of legal precedent may be a dramatic
increase in litigation over safety and health citations.
Litigations helps no one. Employers will be forced to spend
resources in the courtroom, rather than on safety in the work
room.
So I think we should ask: Is there another way--a better
way that would not increase litigation? It is an issue we ought
to explore today.
There are other issues that merit further discussion as
well. For instance, some have tried to draw parallels between
the Mine Act and the OSH Act. And while it is true that both
laws address workplace health, there are important differences
between these two statutes.
For example, the discussion draft before us today would
require hazard abatement similar to the Mine Act; yet, there
has been very little discussion about the fact that mine
inspectors are required to have requisite experience before
becoming inspectors. OSHA does not have an equivalent
experience requirement.
Many of the performance standards in current regulation
applied highly sophisticated and complex processes. ``No
inspector training or experience'' may be an area that needs to
be more fully examined.
I would close with a warning about one final unintended
consequence--the danger that we could harm the very workers we
are trying to help. Particularly in today's economic climate,
we must ensure efforts to enhance workplaces do not lead to job
losses. Policies that impact our workplaces virtually always
carry with them a cost, and we must be mindful not to impose
any unnecessary or unnecessarily costly new requirements.
Workplace safety is an imperative, and every employer must
abide by safety and health standards. But Congress should not
make it more difficult to keep our workplaces safe and
efficient by inserting unnecessary or overly punitive hurdles.
Again, I thank the chair for holding this hearing, and our
witnesses for sharing their expertise. And I yield back.
[The statement of Mr. Kline follows:]
Prepared Statement of Hon. John Kline, Senior Republican Member,
Committee on Education and Labor
Thank you Madam Chair. Good morning and welcome to all the
witnesses.
This morning's hearing is, in congressional terms, a ``legislative
hearing''--in other words, it's a direct examination and review of a
particular piece of legislation, in this case the Protecting America's
Workers Act. This bill was introduced in April of last year and, since
that time, has undergone some fairly substantial revisions. Through
today's hearing, we'll have an opportunity to review the proposed
changes and--I hope--we'll have a discussion about what other changes
may be needed.
The title of this hearing--and the substance of the legislation--is
described as ``modernizing OSHA penalties.'' Certainly, it's worthwhile
to review penalties under the Occupational Safety and Health Act. But I
would suggest that a discussion of workplace safety is incomplete if it
only focuses on penalties.
Witnesses in prior hearings have suggested that the Occupational
Safety and Health Administration must achieve a balance between
compliance assistance and enforcement. No one is suggesting a 50-50
split, but a single-minded focus on punishing individuals after
accidents occur is simply the wrong direction for federal policy.
More appropriately, the focus of OSHA should be on preventing the
accidents rather than merely responding to them. A proactive safety
approach is one that protects employees from hazards and prevents
accidents from happening. The outliers for whom safety is not a concern
will find no sympathy before this Committee.
As with all federal policy, when it comes to workplace safety we
must guard against unintended consequences. For instance, one
consequence of upending 40 years of legal precedent may be a dramatic
increase in litigation over safety and health citations. Litigation
helps no one--employers would be forced to spend resources in the court
room rather than on safety in the work room. So I think we should ask:
Is there another way, a better way, that would not increase litigation?
It's an issue we ought to explore today.
There are other issues that merit further discussion as well. For
instance, some have tried to draw parallels between the Mine Act and
the OSH Act. And while it's true that both laws address workplace
health, there are important differences between these two statutes.
For example, the discussion draft before us today would require
hazard abatement similar to the Mine Act. Yet there has been very
little discussion about the fact that mine inspectors are required to
have requisite experience before becoming inspectors. OSHA does not
have an equivalent experience requirement. Many of the performance
standards in current regulation apply to highly sophisticated and
complex processes, so inspector training or experience may be an area
that needs to be more fully examined.
I would close with a warning about one final unintended
consequence--the danger that we could harm the very workers we're
trying to help. Particularly in today's economic climate, we must
ensure efforts to enhance workplaces do not lead to job losses.
Policies that impact our workplaces virtually always carry with them a
cost, and we must be mindful not to impose any unnecessary or
unnecessarily costly new requirements. Workplace safety is an
imperative, and every employer must abide by safety and health
standards. But Congress should not make it more difficult to keep our
workplaces safe and efficient by inserting unnecessary or overly
punitive hurdles.
Again, I thank the gentle lady for holding this hearing and our
witnesses for sharing their expertise. I yield back.
______
Chairwoman Woolsey. Thank you, Congressman Kline.
Without objection, the members will have 14 days to submit
additional materials for the hearing record.
I would like to introduce--we are going to have two panels.
And I am going to introduce the first panel, and then we will
hear from then and have our questions. Then we will have panel
two.
I would like to introduce our very distinguished guest on
panel one this morning. And I would like to welcome all of our
witnesses. In this order--we will hear from the Honorable David
Michaels, who is the assistant secretary of the Occupational
Safety and Health Administration.
Before coming to OSHA in 2009, David Michaels was professor
of environmental and occupational health at the George
Washington University School of Public Health and Health
Services. From 1998 to 2002, Dr. Michaels served as assistant
secretary of energy for environmental safety and health. He
received a master in public health and PhD from Columbia
University, and a B.A. from City College of New York.
Following Dr. Michaels, Mr. John Cruden, who has served as
the deputy assistant attorney general for the environment and
natural resources division--of what--of the Department of
Justice, since 1995. He is responsible for supervising a wide
variety of environmental litigations, including the Clean Water
Act, Clean Air Act, and Resource Conservation and Recovery Act.
Prior to his role as deputy, he served as chief of the
division's environmental enforcement section, and as special
counsel to the assistant attorney general for the civil
division. John Cruden earned his J.D. from the University of
Santa Clara, a master's degree in government and foreign
affairs at the University of Virginia, and a B.S. from the U.S.
Military Academy.
We will begin with you, Mr. Michaels.
Oh, wait a minute. I am sorry. I have to tell you something
that I--you all know, so I didn't--I forgot to do this. You
know about the lighting system. So when you get started, the
lights are green and, by the time they turn yellow, you have 1
minute left of your 5 minutes. We promise not to cut you off.
The floor doesn't open. You don't disappear. But when you see
the yellow light--orange light--if you could start wrapping up,
we would appreciate it. Then, we will hear the rest of what you
have to say in our questions.
Thank you.
Now, Mr. Michaels?
STATEMENT OF DAVID MICHAELS, ASSISTANT SECRETARY, OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR
Mr. Michaels. Chairwoman Woolsey, Ranking Member Kline,
members of the subcommittee, thank you for the opportunity to
share the Department of Labor's views on the Protecting
America's Worker Act, particularly the issue of enhanced
penalties.
I am pleased to return to this committee having served as a
Robert Wood Johnson health-policy fellow on the committee staff
in 1994. Secretary Hilda Solis' vision for the Department of
Labor is ``good jobs for everyone.'' Good jobs are safe jobs.
And the stronger OSHA--and stronger OSHA enforcement will save
lives.
In 2001, a tank of sulfuric acid exploded at a Delaware oil
refinery, killing a worker named Jeff Davis. His body literally
dissolved in the acid. The OSHA penalty was only $175,000; yet,
in the same incidence, thousands of dead fish and crabs were
discovered, allowing an EPA Clean Water Act citation of $10
million. How can we tell Jeff Davis' wife and his five children
that the penalty for killing fish and crabs is 50 times higher
than the penalty for killing their husband and father?
Most employers want to do the right thing. But many others
will comply with OSHA rules only if there are strong incentives
to do so. OSHA's current penalties are often not large enough
to provide adequate incentives, and they are very low in
comparison with those of other public-health agencies.
Currently, serious violations--those that pose a
substantial probability of death or serious physical harm--are
subject to a maximum civil penalty of only $7,000. Clearly,
OSHA can never put a price on a worker's life. It is vital that
OSHA be empowered to send a strong message, especially when a
life is needlessly lost.
Despite inflation, monetary penalties for OSHA violations
have been increased only once in 40 years. Unscrupulous
employers often consider it more cost-effective to pay the
minimum OSHA penalty than to correct the underlying hazard.
OSHA criminal penalties are also inadequate for deterring the
most egregious employer wrongdoing. The maximum period of
incarceration upon conviction for a knowing violation that
costs a workers life is 6 months in jail, making these crimes a
mere misdemeanor.
Serious OSHA violations that result in death or serious
bodily injury should be felonies like insider trading, tax
crimes or customs and anti-trust violations. Employers who
refuse to comply with safety and health standards--determining,
rather, that it is worth the financial risk, will think again
if there is a chance they will go to jail.
We also recognize that OSHA has a role to play in using our
own authority to reevaluate penalty levels. OSHA has not
adjusted its penalty formulas for over the last 2 decades--over
the last 2 decades; therefore, in addition to our strong
support of the necessary statutory changes in the--that this
legislation would make, we are planning to implement long-
overdue internal changes in our penalty policies. However,
these steps are no substitute for the meaningful and
substantial penalty changes including in this--included in this
legislation.
Good jobs are also jobs where workers' voices are part of
the conversation about creating safe workplaces. If employees
fear they will lose their jobs or be otherwise retaliated
against for actively participating in safety and health
activities, they are not likely to do so. Achieving the goal of
``good jobs for everyone'' includes strengthening workers'
voices in the workplace. Without robust job protections, these
voices may be silenced. PAWA strengthens these protections.
PAWA also includes a number of sections that would expand
the rights of victims' families. For the past 15 years, OSHA
has included families in the investigation process. This
legislation would make this policy permanent. No one is
affected more than the--more by a workplace tragedy than
workers and their families. So we fully recognize and
appreciate their desire to be more involved in the remedial
process.
One of the most significant changes to the OSH Act is the
provision which requires abatement of serious, willful and
repeat hazards during the contest periods. OSHA believes this
protection is critical. Too often hazards remain uncorrected,
and workers remain at risk because of a lengthy contest
proceeding.
Madam Chair, I appreciate the thought and effort that has
gone into PAWA. The administration supports both the goals of
PAWA and many other specific provisions. We note that several
sections would present significant budgetary and workload
challenges for OSHA and OSHA's support agencies, including the
solicitor's office and the review commission.
I look forward to working with you to ensure that we
address these issues in the right way. Thank you, again, for
the opportunity to testify today. I request that my written
testimony be entered into the record, and I am happy to answer
your questions.
[The statement of Mr. Michaels follows:]
Prepared Statement of Hon. David Michaels, Assistant Secretary for
Occupational Safety and Health, U.S. Department of Labor
Chair Woolsey, Ranking Member McMorris Rodgers, Members of the
Subcommittee, thank you for the opportunity today to share the
Department of Labor's views on the Protecting America's Workers Act
(PAWA), particularly the issue of enhanced penalties.
Until 1970 there was no national guarantee that workers throughout
America would be protected from workplace hazards. In that year the
Congress enacted a powerful and far-reaching law--the Occupational
Safety and Health Act of 1970 (OSH Act). The results of this law speak
for themselves. The annual injury/illness rate among American workers
has decreased by 65 percent since 1973, and while there are many
contributing factors, the OSH Act is unquestionably among them.
Employers, unions, academia, and private safety and health
organizations pay a great deal more attention to worker protection
today than they did prior to enactment of this landmark legislation.
But we cannot rest on our laurels. If we are to fulfill the
Department's goal of providing good jobs for everyone, we must make
even more progress. Good jobs are safe jobs, and American workers still
face unacceptable hazards. More than 5,000 workers are killed on the
job in America each year, more than 4 million are injured, and
thousands more will become ill in later years from present occupational
exposures. Moreover, the workplaces of 2010 are not those of 1970: the
law must change as our workplaces have changed. The vast majority of
America's environmental and public health laws have undergone
significant transformations since they were enacted in the 1960s and
70s, while the OSH Act has seen only minor amendments. As a British
statesman once remarked, ``The only human institution which rejects
progress is the cemetery.''
I therefore appreciate the work of this Subcommittee in proposing
legislation that would strengthen the law and significantly increase
OSHA's ability to protect American workers. The Administration strongly
supports the goals of the Protecting America's Workers Act (PAWA). Many
provisions in the Act would enable OSHA more effectively to accomplish
its mission to ``assure safe and healthful working conditions for
working men and women,'' which is also a key component of Secretary of
Labor Solis' vision of Good Jobs for Everyone. Jobs cannot be good jobs
unless they are safe jobs. Stronger OSHA enforcement will save lives.
Because OSHA can visit only a limited number of workplaces each
year we need a stronger OSH Act to leverage our resources to encourage
compliance by employers. We need to make employers who ignore real
hazards to their workers' safety and health think again. We need to
bring OSHA into the 21st century. PAWA includes critical provisions
that deal with significant weaknesses in the current law and more
adequately ensure the safety and health of America's workers. Today, my
testimony will focus on the key issue of enhanced penalties for
occupational safety and health violations, and then turn to some of the
bill's other provisions.
Safe jobs exist only when employers have adequate incentives to
comply with OSHA's requirements. Those incentives are affected, in
turn, by both the magnitude and the likelihood of penalties. Swift,
certain and meaningful penalties provide an important incentive to ``do
the right thing.'' However, OSHA's current penalties are not large
enough to provide adequate incentives. Currently, serious violations--
those that pose a substantial probability of death or serious physical
harm to workers--are subject to a maximum civil penalty of only $7,000.
Let me emphasize that--a violation that causes a ``substantial
probability of death--or serious physical harm'' brings a maximum
penalty of only $7,000. Willful and repeated violations carry a maximum
penalty of only $70,000 and willful violations a minimum of $5,000.
Currently, the average OSHA penalty is only around $1,000. The
median initial penalty proposed for all investigations in cases where a
worker was killed conducted in FY 2007 was just $5,900. Clearly, OSHA
can never put a price on a worker's life and that is not the purpose of
penalties--even in fatality cases. OSHA must, however, be empowered to
send a stronger message in cases where a life is needlessly lost than
the message that a $5,900 penalty sends. We must not forget that a
stronger message means stronger deterrence--and can therefore save
lives.
In 2008, testimony before a Senate committee revealed numerous
examples of small fines in very serious cases. In New Jersey an
immigrant worker was killed in a fall. The original penalty against his
employer for failing to provide fall protection was $2,000 which was
later reduced to $1,400. In Michigan in 2006 the initial penalty
against an energy cooperative was just $4,200 when an employee died
after a backhoe hit a gas line that exploded. The employer had violated
standards for excavation and safety programs.
Monetary penalties for violations of the OSH Act have been
increased only once in 40 years despite inflation during that period.
Unscrupulous employers often consider it more cost effective to pay the
minimal OSHA penalty and continue to operate an unsafe workplace than
to correct the underlying health and safety problem. The current
penalties do not provide an adequate deterrent. This is apparent when
compared to penalties that other agencies are allowed to assess.
For example, the Department of Agriculture is authorized to impose
a fine of up to $130,000 on milk processors for willful violations of
the Fluid Milk Promotion Act, which include refusal to pay fees and
assessments to help advertise and research fluid milk products. The
Federal Communications Commission can fine a TV or radio station up to
$325,000 for indecent content. The Environmental Protection Agency can
impose a penalty of $270,000 for violations of the Clean Air Act and a
penalty of $1 million for attempting to tamper with a public water
system. Yet, the maximum civil penalty OSHA may impose when a hard-
working man or woman is killed on the job--even when the death is
caused by a willful violation of an OSHA requirement--is $70,000.
In 2001 a tank full of sulphuric acid exploded at a Motiva
refinery. A worker was killed and his body literally dissolved. The
OSHA penalty was only $175,000. Yet, in the same incident, thousands of
dead fish and crabs were discovered, allowing an EPA Clean Water Act
violation amounting to $10 million--50 times higher.
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 or repeat violations that involve a fatality to
as much as $250,000. These increases are not inappropriately large. In
fact, for most violations, they raise penalties only to the level where
they will have the same value, accounting for inflation, as they had in
1990.
In order to ensure that the effect of the newly increased penalties
do not degrade in the same way, PAWA also provides for inflation
adjustments for civil penalties based on increases or decreases in the
Consumer Price Index (CPI). Unlike most other Federal enforcement
agencies, the OSH Act has been exempt from the Federal Civil Penalties
Inflation Adjustment Act, so there have not even been increases in OSHA
penalties for inflation, which has reduced the real dollar value of
OSHA penalties by about 39%. PAWA's penalty increases are necessary to
create at least the same deterrent that Congress originally intended
when it passed the OSH Act almost 40 years ago. 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.
We also recognize that OSHA has a role to play in using our own
authority to establish penalty levels. OSHA has not adjusted its own
penalty formulas over the last two decades. Therefore, in addition to
our strong support of the necessary statutory changes that PAWA would
make to OSHA's penalty structure, we are planning to implement long-
overdue internal changes in our penalty proposal policies. These
changes will be well-advertised so that all employers are aware of the
new policies. However, OSHA believes any administrative changes we are
able to make would still be inadequate to compel many employers to
abate serious hazards. These steps are an effort to do the best with
the outdated, antiquated tools we have. But we can only do so much
within the constraints of the current OSH Act. This administrative
effort is no substitute for the meaningful and substantial penalty
changes included in PAWA.
Criminal penalties in the OSH Act are also inadequate for deterring
the most egregious employer wrongdoing. Under the OSH Act, criminal
penalties are limited to those cases where a willful violation of an
OSHA standard results in the death of a worker and to cases of false
statements or misrepresentations. The maximum period of incarceration
upon conviction for a violation that costs a worker's life is six
months in jail, making these crimes a misdemeanor.
The criminal penalty provisions of the OSH Act have never been
updated since the law was enacted in 1970 and are weaker than virtually
every other safety and health and environmental law. Most of these
other Federal laws have been strengthened over the years to provide for
much tougher criminal penalties. The Clean Air Act, the Clean Water
Act, and the Resource Conservation and Recovery Act all provide for
criminal prosecution for knowing violations of the law, and for knowing
endangerment that places a person in imminent danger of death or
serious bodily harm, with penalties of up to 15 years in jail. There is
no prerequisite in these laws for a death or serious injury to occur.
Other federal laws provide for a 20 year maximum jail sentence for
dealing with counterfeit obligations or money, or mail fraud; and for a
life sentence for operating certain types of criminal financial
enterprises.
Simply put, serious violations of the OSH Act that result in death
or serious bodily injury should be felonies like insider trading, tax
crimes, customs violations and anti-trust violations.
Nothing focuses attention like the possibility of going to jail.
Unscrupulous employers who refuse to comply with safety and health
standards as an economic calculus will think again if there is a chance
that they will go to jail for ignoring their responsibilities to their
workers.
PAWA would amend the OSH Act to change the burden of proof from
``willfully'' to ``knowingly.'' Specifically, Section 311 states that
any employer who ``knowingly'' violates any standard, rule, or order
and that violation results in the death of an employee is subject to a
fine and not more than 10 years in prison. Most federal environmental
crimes and most federal regulatory crime use ``knowingly,'' rather than
``willfully.'' This would ease the burden of proof currently required
for a criminal violation under the OSH Act because it is easier to
prove a knowing violation than to establish willfulness under current
cases.
In addition, potential criminal liability is expanded to any
responsible corporate officer or director, which addresses Federal
court rulings that limited liability for OSHA violations to
corporations and high-level corporate officials. This section is aimed
at the small minority of corporate officials who have behaved
irresponsibly, resulting in the death or maiming of their employees.
OSHA currently has no penalties adequate to deter such conduct. The
possibility of incarceration is a powerful deterrent. Twenty years ago
the Inspector General of DOL noted that:
There is a visible odium that accrues to being indicted, convicted
and jailed. I submit that it is the specter of precisely this kind of
disgrace which will add to the credible deterrent at the Department of
Labor.
Because OSHA's criminal penalties are considered misdemeanors
Federal prosecutors often regard these cases as a poor use of scarce
time and resources. Since passage of the OSH Act in 1970 fewer than 100
cases have been prosecuted while more than 300,000 workers have died
from on-the-job injuries.
In the 1980s, the State of Texas and Los Angeles County
demonstrated that aggressive criminal law enforcement procedures
improved occupational safety and health. In Texas, the number of
trenching fatalities dropped dramatically when one county adopted a
well-publicized criminal prosecution effort. In addition, OSHA
continues to work with New York State's prosecutors on similar
prosecutions, even as recently as the Deutsche Bank case. The
Subcommittee has wisely included a provision stating that nothing in
PAWA shall preclude a state or local law enforcement agency from
conducting criminal prosecutions in accordance with its own laws.
In addition to making much needed changes to the OSH Act's penalty
provisions, PAWA would cover all public employees. There are more than
10 million Federal, State and local government employees who do not
receive the full range of protections from the OSH Act. According to
2008 BLS data, the total recordable case injury and illness incidence
rate for state government employees was 21% higher than the private
sector rate. The rate for local government employees was 79% higher.
Clearly, some public sector jobs are extremely dangerous. Public
employees deserve to be safe on the job, just as private-sector
employees do.
Twenty-six states and one territory now provide federally approved
OSHA coverage to their public employees. Nonetheless, in 2008 there
were more than 277,000 injuries and illnesses with days away from work
among state and local governmental employees.
I applaud the Subcommittee for addressing these issues. Realizing
the fiscal difficulties that many states now face we would like to have
further discussions with the committee about this section.
Good jobs are also jobs where workers' voices are part of the
conversation about creating safe workplaces. The OSH Act was one of the
first safety and health laws to contain a provision for protecting
whistleblowers--section 11(c). This provision protects employees from
discrimination and retaliation when they report safety and health
hazards or exercise other rights under the OSH Act. This protection is
fundamental to OSHA's capability for safeguarding the workforce. The
creators of the OSH Act knew that OSHA would not be able to be at every
workplace at all times, so the Act was constructed to encourage worker
participation and rely heavily on workers to act as OSHA's ``eyes and
ears'' in identifying hazards at their workplaces. If employees fear
that they will lose their jobs or be otherwise retaliated against for
actively participating in safety and health activities, they are not
likely to do so. Achieving the goal of Good Jobs for Everyone includes
strengthening workers' voices in their workplaces. Without robust job
protections, these voices may be silenced.
In the 40 years since the OSH Act became law Congress has enacted
increasingly expansive whistleblower protections, leaving section 11(c)
in significant ways the least protective of the 17 whistleblower
statutes administered by OSHA. There has been bi-partisan consensus for
the past twenty-five years on the need for uniform whistleblower
protections for workers in every industry. This Administration supports
uniformity as well.
Notable weaknesses in section 11(c) include: inadequate time for
employees to file complaints, lack of a statutory right of appeal; lack
of a private right of action; and OSHA's lack of authority to issue
findings and preliminary orders, so that a complainant's only chance to
prevail is through the Federal Government filing an action in U.S.
District Court. PAWA would strengthen section 11(c) by including the
full range of procedures and remedies available under the more modern
statutes and by codifying certain provisions, such as exemplary damages
and the right to refuse to work, which have been available but not
expressly authorized by current statute. There is no reason that
workers speaking up about threats to their safety and health should
enjoy less protection than workers speaking up about securities fraud
or transportation hazards.
PAWA strengthens these protections. It makes explicit that a worker
may not be retaliated against for reporting injuries, illnesses or
unsafe conditions to employers or to a safety and health committee, or
for refusing to perform a task that the worker reasonably believes
could result in serious injury or illness. These protections are
already implicit in the OSH Act, but PAWA would leave no doubt in
employers' or employees' minds about these rights.
PAWA is an improvement on OSHA's current law in significant ways.
It protects employees who refuse work because they fear harm to other
workers. It eliminates the requirements that no reasonable alternative
to a work refusal exist, and that there be no time to contact OSHA. It
requires only that a reasonable person faced with the same
circumstances would conclude that performing such duties would result
in serious injury or illness to him or herself, or other workers, and
when practical, the employee has tried to obtain a remedy from the
employer.
Additionally, PAWA would increase the existing 30-day deadline for
filing an 11(c) complaint would to 180 days, bringing 11(c) more in
line with some of the other whistleblower statutes enforced by OSHA.
Over the years many complainants who might otherwise have had a strong
case of retaliation have been denied protection simply because they did
not file within the 30-day deadline. Increasing the filing deadline to
180 days would greatly increase the protections afforded by section
11(c).
PAWA's adoption of the ``contributing factor'' test for determining
when illegal retaliation has occurred would be a significant
improvement in 11(c). It would make 11(c) consistent with other
whistleblower statutes that have also adopted the ``contributing
factor'' scheme. This would enhance the protections afforded to
America's workers and improve workplace safety and health.
The private right to enforce an order is another key element of
whistleblower protections and has been included in most other
whistleblower statutes enforced by OSHA. It is critically important
that if an employer fails to comply with an order providing relief,
either DOL or the complainant be able to file a civil action for
enforcement in a U.S. District Court.
PAWA also allows complainants or employers to move their case to
the next stage in the administrative or judicial process if the
reviewing entities do not make prompt decisions or rulings. For
example, PAWA would allow complainants to ``kick out'' to a District
court if the Secretary has not issued a final order within the
prescribed number of days from the case filing, or ``kick out'' from an
OSHA investigation to a hearing before an Administrative Law Judge
(ALJ) if OSHA has not issued a decision within 120 days of the filing
of the complaint.
The provision allowing employees in states administering OSHA-
approved plans to choose between Federal and State whistleblower
investigations would likely result in a significant increase in the
number of Federal complaints. All 22 states that administer private
sector plans currently provide protections at least as effective as
Federal OSHA's, as they are required to do under statute. We have
reservations about this provision, because we are not sure this
provision would add much protection for workers in those states, and it
would be a significant drain on OSHA resources and those of the
Solicitor of Labor.
These legislative changes in the whistleblower provisions are a
long-overdue response to deficiencies that have become apparent over
the past four decades.
The proposed legislation would prohibit employers from discouraging
the reporting of work-related injuries and illnesses by employees. OSHA
is strongly committed to accurate reporting of both injuries and
illnesses. It shares the concern about under-reporting expressed by the
Government Accountability Office and several academic studies. Only if
we have confidence in the quality of the data that we collect on
workers' injuries and illness can we have confidence in our
understanding of the scope of the dangers facing American workers and
our targeted efforts to reduce those dangers. The agency believes that
the most likely workplaces where under-reporting occurs are those with
low injury/illness rates operating in historically high-rate
industries. We have initiated a National Emphasis Program to target
these workplaces and check their records. PAWA's recordkeeping
provisions would greatly enhance the effectiveness of our NEP.
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.
It would place into law, for the first time, the right of a victim
(injured employee or family member) to meet with OSHA, to receive
copies of the citation at no cost, to be informed of any notice of
contest and to make a statement before an agreement is made to withdraw
or modify a citation. No one is affected more by a workplace tragedy
than workers and their families, so we fully recognize and appreciate
their desire to be more involved in the remedial process. However, 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.
The rights of workers who wish to contest OSHA citations are
expanded under PAWA. For the first time employees would be able to
contest citations and modifications regarding the characterization of
the violation (i.e., serious, willful, or repeated) as well as the
adequacy of the penalty. This would result in providing employees more
of a voice in the enforcement process and would provide a right for
employees equal to the contest rights of employers.
One of the most significant changes to the OSH Act is the provision
which requires abatement of serious, willful, and repeat hazards during
the contest period. PAWA would enable OSHA to issue failure to abate
notices to a workplace with a citation under contest. This provision
would strengthen the right of workers to be protected from the most
egregious workplace hazards.
OSHA believes this protection is critical. Too often hazards remain
uncorrected because of lengthy contest proceedings--periods that can
last a decade or more. A recent OSHA analysis found that between FY
1999 and FY 2009, there were 33 contested cases that had a subsequent
fatality at the same site prior to the issuance of a final order. For
instance, in 2009 OSHA cited a Connecticut company, T Keefe and Sons,
after an employee fell to his death through an improperly guarded floor
hole while working at a casino in Uncasville, Connecticut. The company
contested the citation. Several months later another employee of that
company fell through a similarly improperly guarded hole, and received
permanent disabling injuries.
Obtaining speedy abatement is one reason why OSHA settles cases.
But we must ensure that neither contests nor lengthy settlement
negotiations leave workers exposed to the hazards found during the
initial inspection. The only situation worse than a worker being
injured or killed on the job by a senseless and preventable hazard is
having a second worker felled by the same hazard.
This is not the first time that this issue has been before
Congress. During hearings on comprehensive OSHA reform in the 102nd and
103rd Congresses, numerous examples were presented of employees being
hurt or killed while an inspection was under contest. While those
opposing this provision argued that employers would needlessly spend
large sums on abatement for a citation that is later overturned,
business representatives testified that even when there is a contest
most employers abate hazards during the review process.
GAO also has recommended that Congress require protection of
workers during contests based on experience with the Federal Mine
Safety and Health Act, which does not automatically stay abatement
during litigation. Similarly, various environmental statutes also
require that violations be corrected when they are identified. In
weighing the balance between employee protection and employer contest
rights, employee safety should take precedence. PAWA respects the
rights of employers by allowing an appeal to OSHRC regarding the
requirement to abate during contest.
Under PAWA, for the first time, OSHA would be required by law to
investigate all incidents resulting in death or the hospitalization of
two or more employees. OSHA's current enforcement policy is to
investigate all fatalities and incidents resulting in the
hospitalization of three or more workers. It should be noted, however,
that ``investigate'' does not necessarily mean inspect, giving the
agency discretion in using its enforcement resources most effectively.
The provision requiring employers to take appropriate measures to
prevent destruction or alteration of evidence in regard to such
incidents would support OSHA's compliance staff efforts in the conduct
of investigations.
The use of unclassified citations is prohibited by the bill. The
agency has substantially reduced the use of these citations (in FY 09
OSHA issued 10 unclassified citations compared with 26 in FY 07). OSHA
recognizes that unclassified citations may reduce the deterrent effect
of its enforcement activities by removing the stigma of willful
violations and undermining the potential for criminal prosecution.
Nevertheless, the ability to use unclassified citations does increase
our flexibility in certain rare situations, for example, in some cases
where we may have trouble sustaining a willful citation in court,
changing the willful citation to unclassified allows us to maintain the
penalty. We hope to discuss this provision further with the committee.
Madame Chair, I appreciate the thought and effort that has gone
into the development of PAWA. I am reminded of the importance of your
work by the compelling statement made by Becky Foster, the mother of a
19 year-old who was killed while working as a chipper attendant in the
wood processing industry:
These penalties will not give companies any incentive to create a
safe workplace. It just seems so unfair to watch the news and see a
story about a CEO or someone in a large company that does not follow
some type of regulation regarding the books. They get fines of hundreds
of thousands of dollars and have to fight in court to stay out of jail.
What kind of system penalizes a company more for monetary issues than
it does for taking the lives of hard working people? These fathers,
sons, brothers, and uncles can never be replaced. Our lives have been
changed forever.
A fresh look at the OSH Act and its relevance for the 21st century
is indeed overdue. The Administration supports both the goals of PAWA
and many other specific provisions. We note that several sections of
this Act would present significant budgetary and workload challenges
for OSHA and OSHA's support agencies at the Department of Labor,
including the Solicitors' office, as well as the Review Commission,
which we will need to analyze fully. I look forward to working with you
as this bill advances through the legislative process to perfect it and
ensure that we address the crucial issues in precisely the right way.
Thanks again for the opportunity to testify today. I am happy to
answer your questions.
______
Chairwoman Woolsey. Thank you.
Mr. Cruden?
STATEMENT OF JOHN CRUDEN, ACTING DEPUTY ATTORNEY GENERAL,
ENVIRONMENT AND NATURAL RESOURCES DIVISION, U.S. DEPARTMENT OF
JUSTICE
Mr. Cruden. Thank you to the members of the subcommittee
for holding this meeting. And thank you for inviting me to
testify. I would also ask that my prepared testimony be made a
part of the record. And I am going to summarize it. But I am
focusing on what the Department of Justice does, which is
criminal prosecution.
Chairwoman Woolsey. Without exception.
Mr. Cruden. And I am going to highlight three parts of that
testimony.
First, I want to summarize our Worker Endangerment
Initiative. I want to talk briefly about two cases which
illustrate the disparity between the current penalties
available under the OSH Act, and other statutes--and then
highlight three specific areas which I think can be improved.
In 2005, the environmental crimes section launched its
Worker Endangerment Initiative to highlight the fact that we
were finding that companies that were not taking care of the
environment were also not taking care of their workers, often
resulting in death or serious bodily injury. This initiative
requires a coordinated effort with the Environmental Protection
Agency, OSHA, and the Department of Justice.
I am very proud to tell you right now our environmental
crimes prosecutors have trained over 2,000 OSHA investigators,
EPA investigators, Department of Labor solicitors, and
assisting U.S. attorneys in how to find this type of crime.
This collaboration, now, has resulted in some of the cases that
I have laid out for you in my prepared testimony. But I want to
highlight just two of those, because it makes the point that I
will try to make later in my testimony.
The first is the case of United States v. Allen Elias.
Allen Elias was the owner of a fertilizer company in Idaho. And
he ordered sludge workers into a tank to remove cyanide-laced
sludge without telling them what was inside the tank or
providing any protection for them. When one of the workers
collapsed in the tank and was taken to the hospital, Elias lied
about what had happened. And the 20-year-old employee suffered
permanent brain damage. But Elias could not have been
prosecuted under the current OSHA statute because the worker
did not die. Instead, he was prosecuted under one of the
environmental hazardous waste statute and received 17 years in
prison.
The second example involves United States v. Atlantic
States Iron Pipe Company, which is a New Jersey division of the
McWane Company. In that case, we argued to the jury that the
company had systematically violated the Clean Water Act and the
Clean Air Act for years by discharging pollutants into the
Delaware River; carbon monoxide and other pollutants into the
air.
The company also ignored worker-safety laws and people were
injured. Ultimately, the jury convicted Atlantic States and
four of its managers for violations of the environmental
statutes, making false statements, obstructing justice and
defrauding in a conspiracy both OSHA and the EPA. Just last
year, the court sentenced the managers to, collectively, over
12 years of prison.
With me today, just behind me, are two of our lead
prosecutors who prosecuted that case--Deborah Harris and Andrew
Goldsmith. It took 8 months. And they are also the individuals
who have been leading our Worker Endangerment Initiative. And I
am very proud of those two prosecutors.
But while our prosecutors have successfully done Elias and
Atlantic States, that was really more of the result of the
environmental statutes and what we call ``Title 18 Crimes.''
Those are the crimes that apply to everywhere--lying, cheating
and stealing. But they point out the disparity in three areas
between the OSHA statute and those others that I have
enumerated.
First of all, as already been spoken to, the current
statute is a misdemeanor limited to 6 months. And, by the way,
you could get 12 months if you kill two people, if there are
successive prosecutions. But that is the only way, as opposed
to our normal felony statutes, which have up to 15 years in
prison.
Second, there has to be a death in order to prosecute,
which is totally different than other crimes. For instance, our
environmental crimes may be based on a risk of death or serious
bodily injury, or a knowing endangerment to human health and
the environment.
Third, unlike most federal crimes, OSHA requires a willful
action by a defendant. Court cases describe that as a ``bad
purpose''--again, significantly different to, then, the normal
environmental standard of knowing actions.
Effective criminal prosecution requires statutes that
appropriately punish, they deter other conduct, and they level
the economic playing field. Measured against that standard, the
current OSHA criminal provisions are inadequate.
I look forward to any questions that you might have
regarding our experiences in these prosecutions. Thank you.
[The statement of Mr. Cruden follows:]
Prepared Statement of Hon. John C. Cruden, Deputy Assistant Attorney
General, Environment and Natural Resources Division, U.S. Department of
Justice
Thank you, Chairwoman Woolsey, Congresswoman McMorris Rodgers, and
Members of the Committee, for holding this hearing today and inviting
me to testify. I am pleased to be testifying with David Michaels,
Assistant Secretary of Labor for Occupational Safety and Health.
My name is John C. Cruden. I am a Deputy Assistant Attorney General
(DAAG) in the Environment and Natural Resources Division (ENRD) of the
United States Department of Justice. I have served in that position
since 1995. The Division's mission is to enforce civil and criminal
environmental laws to protect the health of our citizens and our
environment, and to defend suits challenging environmental and
conservation laws. We represent the United States in matters involving
the Nation's natural resources and public lands, wildlife protection,
Indian rights and claims, and the acquisition of federal property.
One of my responsibilities as DAAG is to supervise our
Environmental Crimes Section (ECS). ECS attorneys prosecute criminal
violations of the country's environmental and wildlife Conservation and
Recovery Act (RCRA). ECS attorneys usually work in tandem with
Assistant U.S. Attorneys on environmental crimes cases in nearly every
federal judicial district in the nation. ECS also conducts extensive
training on environmental crimes and serves as a nationwide
clearinghouse for environmental crimes information.
ECS works closely with criminal investigators from many other
federal government agencies on cases involving vessel pollution,
violations of federal wildlife laws and smuggling, and interdiction.
Specifically, ECS often works on its cases with the Environmental
Protection Agency (EPA), the Fish and Wildlife Service (FWS), the Coast
Guard, the National Oceanic and Atmospheric Administration (NOAA), and
the Occupational Safety and Health Administration (OSHA). ECS also
initiates and participates in a number of environmental criminal
enforcement task forces among federal, state and local agencies.
My testimony today will describe our experience in prosecuting
companies and their officials for illegal conduct which either resulted
in a worker death or injury or knowingly put workers at risk of death
or injury. According to the most recent statistics from the Bureau of
Labor Statistics, an average of sixteen workers dies every day at job
sites in the United States from workplace injuries. Every year, over
four million workers suffer a recordable illness or injury at work. ECS
launched its Worker Endangerment Initiative (the `Initiative') in 2005
to highlight that environmental crimes frequently put our country's
workers at risk of death or serious bodily injury while they are on the
job. The Initiative's driving goal is to prosecute companies and
company officials who systematically violate both federal environmental
laws and worker safety laws. Since its advent, the Initiative has
produced a number of significant While ECS has successfully prosecuted
environmental crimes in which workers were injured or killed, that
success is based more on the availability of strong enforcement
provisions and deterrent value of federal environmental statutes, as
well as provisions of Title 18 of the United States Code, rather than
the criminal provisions of the Occupational Safety and Health Act
(``OSH Act'') of 1970 (29 U.S.C. Sec. 666). As set forth more fully in
my testimony, the disparities between the OSH Act and environmental and
Title 18 penalties is clear. For these reasons, the Department of
Justice supports the strengthening of the OSH Act's criminal penalties
to make those penalties more consistent with other criminal statutes
and further the goal of improving worker safety.
Overview of the Worker Endangerment Initiative
The Initiative is a coordinated effort between EPA, DOJ and OSHA to
prosecute employers who commit environmental crimes that endanger
employees. The Initiative has two core principles: (1) environmental
crime can lead to worker injuries and death; and (2) employers who do
not comply with environmental laws may also be ignoring or avoiding
worker safety laws. The Initiative involves not only investigations and
prosecutions of these cases, but also inter-agency training and docket
review.
One key component of the Initiative is to develop additional
resources to identify and investigate environmental crimes by offenders
whose conduct results in worker injuries or death. ECS attorneys travel
throughout the country to provide government officials with criminal
investigative and environmental training to identify indications of
serious environmental crimes. ECS attorneys train OSHA compliance
officers and senior managers, Department of Labor prosecutors have
trained nearly two thousand government officials.
Another component of the initiative involves a docket review.
Docket review consists of federal prosecutors, EPA agents and OSHA
compliance officers collectively discussing information about companies
identified by OSHA as potential violators of environmental and worker
safety laws. Government officials review information about companies to
determine whether any of them merit further investigation and/or
prosecution.
Criminal Provisions of Major Environmental Protection Statutes
Most of the worker safety cases brought by ECS charge violations of
the environmental protection laws and the general criminal provisions
of Title 18 statutes. Before addressing the details of our cases,
however, it is helpful to provide some background regarding the
criminal provisions, including the mental state standards and available
penalties, of the major environmental protection statutes and other
criminal statutes we use in our cases.
A. The Resource Conservation and Recovery Act
The Resource Conservation and Recovery Act (`RCRA'), 42 U.S.C.
Sec. Sec. 6901-6992, regulates hazardous waste `cradle to grave,' that
is, from its creation through its disposal. RCRA makes it illegal to
store, treat or dispose of hazardous waste without a permit. 42 U.S.C.
Sec. 6928(d). RCRA also regulates the transportation of hazardous
waste, establishing stringent requirements for documenting and labeling
hazardous waste shipments.
Many of our RCRA cases involve the illegal dumping of hazardous
waste. For example, in U.S. v. Marchbanks, Case No. 2:07-CR-00099 (N.D.
Miss.), Randy Marchbanks and two of his employees were convicted in
2008 of RCRA violations for dumping hazardous paint and unpermitted
sites in northern Mississippi. RCRA also includes a `knowing
endangerment' felony provision which provides for a term of
imprisonment of up to 15 years and/or a fine of up to $250,000 (for
individuals) or $1,000,000 (for organizations). 42 U.S.C. Sec. 6928(e)
and (f). The provision applies when a defendant's mishandling of
hazardous waste creates a serious risk to the health of others. 42
Sec. 6928(e). Specifically, a defendant must knowingly transport,
treat, store, dispose of, or export hazardous waste (the predicate
offense), and at the time of the offense know that his or her conduct
places another person in imminent danger of death or serious bodily
injury. 42 Sec. 6928(e) and (f).
B. The Clean Water Act
The Clean Water Act (`CWA'), 33 U.S.C. Sec. Sec. 1251-1387, makes
it illegal to discharge any pollutant into a water of the United States
from a point source without a permit, or to violate the terms of a
permit that contains limits on discharges. CWA violations typically
involve polluters that dump secretly (i.e., without a permit). An
example of a defendant convicted and sentenced based on a CWA violation
is Gordon Tollison who was sentenced to a year and a day in prison for
intentionally discharging untreated and under-treated sewage into state
waterways despite numerous administrative orders and repeated
admonitions. United States v. Gordon Tollison, Case No. 3:04-CR-00158
(N.D.Miss.). Those who violate the criminal provisions of the CWA often
face prison sentences.
In addition to felony charges for knowing violations, the statute
contains a `knowing endangerment' provision for defendants whose
violations under the Act create a serious risk of endangerment is up to
fifteen years in prison and a fine of up to $250,000, or both. Id. The
CWA incorporates a responsible corporate officer doctrine which makes
company managers criminally liable for illegal conduct they knew about
and could have prevented, but failed to prevent. See 33 U.S.C. Sec.
1319(c)(3) & (6).
C. The Clean Air Act
The criminal provisions of the Clean Air Act (`CAA'), 42 U.S.C.
Sec. Sec. 7401-7671, make it illegal to emit air pollutants in excess
of permit limitations or without a permit. CAA regulations also govern
the removal and handling of asbestos, an air pollutant which can cause
fatal lung disease. ECS attorneys prosecute property owners and their
contractors who operate illegally, often putting our workers and
communities at risk. For example, in 2007 Branko Lazic was convicted of
violating the CAA by improperly removing asbestos from an elementary
school in Ambler, Pennsylvania. United States v. Branko Lazic, Case No.
2:07-CR-00324, (E.D.Pa.). Also, in United States v. Construction
Personnel, Inc., Case Nos. 1:00-CR-529, 1:00-CR-143, 1:00-CR-405 (D.
Colo.), the president, vice president, project manager and secretary of
the company were convicted of several Title 18 offenses arising out of
their use of unauthorized, untrained and unprotected aliens in asbestos
abatements. The defendants induced unauthorized aliens to enter and
remain in the United States to perform illegal abatements. These aliens
were not properly trained or certified to perform the work. As part of
its sentence, the corporation set up a fund in excess of $325,000 for
use by the Department of Health and Human Services to track and treat
employees exposed to asbestos. The individuals received sentences of up
to 15 months' incarceration and up to $7,500 in fines each. 42 U.S.C.
Sec. 7413(c)(5). The CAA also creates a misdemeanor for negligent
endangerment. Id. Sec. 7413(c)(4). The CAA holds corporate officials
criminally liable if they had actual knowledge of the endangerment or
if the defendant took affirmative steps to be shielded from relevant
information. Id. Sec. 7413(c)(5)(B).
D. Other Relevant Statutes
ECS's authority is not limited to prosecution of crimes committed
under federal environmental statutes. ECS attorneys also make extensive
use of the general criminal provisions set out in Title 18 of the
United States Code B those that prohibit the more conventional crimes
of lying, cheating, and stealing. The Title 18 provisions utilized by
ECS involve crimes such as making false statements, obstruction of
justice, and conspiracy to defraud the United States by impeding the
effective implementation of government regulatory programs.
See 18 U.S.C. Sec. 371 (conspiracy to defraud); 18 U.S.C. Sec.
1001 (false statements); and 18 U.S.C. Sec. Sec. 1505, 1512 and 1519
(obstruction of justice).
ECS also has brought cases under the OSH Act's criminal provisions
(29 U.S.C. Sec. 666(e)). As discussed in more detail later in my
testimony, the penalties under that statute are significantly different
than the other statutes in that they provide only up to 6 months
maximum imprisonment for a criminal violation and require a worker
death. Serious worker injury is not sufficient conduct to result in
even a misdemeanor violation.
ENRD's Prosecution Experience Involving Worker Endangerment
Under the current criminal provisions of the OSH Act, ECS attorneys
prosecuting worker safety incidents also examine post-injury or post-
death acts of concealment or deception through the potential punishment
for either the environmental or Title 18 crimes significantly exceeds
the maximum penalty under the current OSH Act.
A. Pre-Initiative Cases
Prior to the Initiative, ECS often litigated environmental crimes
which directly led to worker injuries or death. We found, however, that
even in environmental cases that raise severe worker safety issues,
there was a substantial disparity between the remedies available to us
under our environmental laws and those available to OSHA. One of the
most notable examples of the disparity between the criminal provisions
of the OSH Act and the environmental laws was in the case of United
States v. Allen Elias (1999), in the District of Idaho. The case
garnered national attention and led to, at the time, the longest
sentence in an environmental crimes case. Allen Elias, the owner of a
fertilizer company, ordered employees to remove cyanide-laced sludge
from the interior of a 25,000 gallon railroad car. He did so without
telling the employees what was inside the tank, and without providing
the personal protective equipment they requested. When one of the
workers collapsed in the tank and was taken to the hospital, Elias lied
about the contents of the tank to rescue workers at the scene and to
the treating physician. Elias's criminal conduct caused that twenty-
year-old employee to suffer permanent brain damage. Despite the
egregiousness of his conduct, however, Elias could not be prosecuted
under the criminal provisions of the OSH Act for worker injuries, no
matter how severe, because the OSH Act provides criminal penalties only
for cases of death, and even then provides no more than six months of
incarceration. In contrast, upon conviction for violations under RCRA's
knowing endangerment and hazardous waste storage and disposal
provisions, as well as making false $6 million in restitution and clean
up costs.
Another notable case is United States. v. Hansen (1999), in the
Southern District of Georgia, in which the defendants were the CEO,
vice president and plant manager of Hansen, a chemical company that
manufactured bleach, soda, gas, and acid. In Hansen, the defendants
were charged and convicted under the CWA for knowingly endangering
employees who often stood knee-deep in contaminated wastewater while
working in the plant. Again, the OSH Act's criminal provision provided
no recourse because, fortunately, no employees were killed. Upon
conviction under the CWA, the three defendants were sentenced to 108-
month, 46-month, and 78-month prison terms.
B. The OSH Act
While ECS has had success in prosecuting environmental crimes which
led to worker death or injuries, those cases were brought under
environmental statutes and Title 18 rather than the OSH Act's criminal
provisions. The primary criminal provision of the OSH Act provides a
misdemeanor:
Any employer who willfully violates any standard, rule, or order
promulgated pursuant to section 655 of this title, or of any
regulations prescribed pursuant to this chapter, and that violation
caused death to any employee, shall, upon conviction, be punished by a
fine of not more than $10,000 or by imprisonment for not more than six
months, or by both; except that if the conviction is for a violation
committed after a first conviction of such person, punishment shall be
by a fine of not more than $20,000 or by imprisonment for not more than
one year, or by both. 29 U.S.C. Sec. 666(e). As compared to
environmental statutes and Title 18 crimes, the primary criminal
provision of the OSH Act (1) has a higher mental state requirement; (2)
only applies in limited requires the death of an employee as a
prerequisite. Thus, under the criminal provisions of the OSH Act, if a
worker dies because of the willful act of his or her employer, that
employer faces a maximum conviction for a misdemeanor and only up to
six months in jail. In contrast, if that same employer knowingly
endangers the health or safety of its employees or the community by
violating the nation's environmental protection laws, that employer may
spend up to 15 years in jail.
While the worker endangerment initiative has been successful, that
is largely the product of the application of environmental statutes. If
a worker safety case does not involve the illegal handling of hazardous
waste, or the unlawful release of hazardous pollutants into the air or
illegal discharges of pollutants into waters of the United States, that
case may not be prosecuted under the criminal environmental laws.
As a practical matter, the misdemeanor violations in the OSH Act
provide little incentive for prosecutors and other law enforcement
personnel who must reserve their limited resources for those crimes
that Congress has deemed most egregious by designating them as
felonies. The relatively low monetary penalties currently available to
OHSA mean that unscrupulous companies may view such violations as an
acceptable cost of doing business. Accordingly, the Department of
Justice supports the strengthening of the OSH Act's criminal penalties
so that they are more consistent with other criminal statutes.
C. Worker Endangerment Initiative Cases
Although OSHA currently has limitations on the remedies available
to it to address workplace safety issues, we have been able to address
some of these issues indirectly through our environmental laws. The
Initiative cases further demonstrate the principle that employers who
do not comply with environmental laws may also be ignoring or avoiding
worker safety laws. In prosecuting these cases, ECS has drawn upon the
environmental statutes and Title 18 offenses, working with EPA and OSHA
investigators. United States v. Motiva Enterprises (D. Del.) is an
example of a case developed during the Initiative in which the
prosecution was based solely on environmental violations. Motiva
Enterprises LLP is the fifth largest oil refiner in the United States.
On July 17, 2001, a 415,000 gallon tank containing spent sulfuric acid
exploded at Motiva's Delaware City Refinery. The explosion killed one
worker, injured numerous others, and resulted in a spill to the
Delaware River that killed nearly 3,000 fish and crabs. In 2005, Motiva
pleaded guilty to negligent endangerment of its workers under the CAA
and to a knowing discharge under the CWA. Motiva was sentenced to pay a
fine of $10 million and to serve 3 years' probation.
ECS's worker endangerment initiative gained significant attention
in its prosecution of McWane, Inc. (McWane). McWane is a large,
privately-held cast iron pipe manufacturer with facilities across the
nation. In January 2003, the New York Times and PBS's Frontline
featured stories on the many deaths, injuries, and environmental
violations occurring in McWane facilities nationwide. After
investigation, ECS filed indictments against five divisions of McWane:
McWane Cast Iron Pipe Inc. in Birmingham, Alabama; Union Pipe and
Foundry in Anniston, Alabama; Tyler Pipe Company in Tyler, Texas;
Pacific States Cast Iron Pipe Company, Provo, Utah; and Atlantic States
Cast Iron Pipe Co. in Phillipsburg, New Jersey. These prosecutions
involved charges of both environmental statutes and Title 18 crimes.
The most notable of the McWane cases involved the Atlantic States
Cast Iron Pipe Co., and CAA by discharging petroleum waste products
from its facility directly into the Delaware River, and carbon monoxide
and other pollutants into the air. Moreover, the company systematically
ignored worker safety laws and impeded OSHA in its efforts to ensure
compliance with the OSH Act and to investigate accidents. Worker
injuries presented in the indictment included a death from being
crushed by a forklift, the loss of an eye and a crushed skull from
removal of a saw blade guard, finger amputations caused by by-pass of
cement mixer safety devices, and second and third degree burns caused
by negligence and left untreated. In 2003, the grand jury returned a
multi-count indictment against the company and five of its managers,
alleging conspiracy to defraud OSHA and the EPA, false statement and
obstruction of justice counts, and violations of the CWA and CAA.
During an eight month trial from September 2005 to April 2006, the
government called 50 witnesses including OSHA safety inspectors and
industrial hygienists who had been repeatedly thwarted in their
attempts to inspect and regulate Atlantic States. Atlantic States was
convicted on 32 of the 33 counts on which the jury reached a verdict.
Four of the managers were also convicted of conspiracy and various
related offenses.
After extensive, post-verdict litigation, the court in 2009
sentenced the managers to 70, 41, 30, and 6 months' imprisonment. The
company was placed on four years' monitored probation and ordered to
pay an $8 million fine. The terms of the probation require the company
to submit biannual compliance reports to the court and pay for a court-
appointed monitor. The case is currently on appeal to the Third Circuit
Court of Appeals.
Shortly after the jury returned its guilty verdicts in Atlantic
States, OSHA asked ECS to BP's Texas City plant that killed fifteen
people. The explosion occurred when hydrocarbon vapor and liquid
improperly released to the open air reached an ignition source. As a
result of the joint efforts of ECS and the U.S. Attorney's Office in
Houston, the company pleaded guilty to a criminal violation of the
Clean Air Act's General Duty Clause, 42 U.S.C. Sec. 7412(r)(7), and
paid a record $50 million fine. This was the first criminal prosecution
under this section of the CAA.
Under the worker endangerment initiative, ECS litigated two cases
which charged violations of the OSH Act. The first was another
prosecution of McWane involving a worker death at its Union Foundry
plant in Alabama, and the second was the prosecution of Tyson Foods
involving a worker death at its River Valley Animal Foods plant in
Arkansas.
In United States v. Union Foundry Co. (N.D. Ala.), this division of
McWane pleaded guilty in 2005 to both RCRA and OSH Act violations that
led to the death of an employee. The Union Foundry facility in
Anniston, Alabama, manufactures iron pipe fittings (elbows, flanges,
etc.) for industry. Among the many environmental violations at the
facility, the company illegally stored and treated particulate matter,
carbon monoxide, and lead from its baghouse, a pollution control
device, without a permit. Additionally, from March 17, 2000, until
August 22, 2000, Union Foundry allowed employees to work on a conveyor
belt that did not have the required safety guard. As a result, employee
Reginald Elston was caught in a pulley and crushed to death.
Union Foundry was sentenced to pay a $3.5 million fine and serve a
three-year term of probation. In addition, the company was ordered to
propose a community service project valued. In our case against Tyson
Foods, Inc., the company was convicted of violations that led to the
death of an employee. Tyson's River Valley plants recycled poultry
products into protein and fats for the animal food industry. Employees
at the Tyson facilities often were exposed to hydrogen sulfide gas, a
toxic gas produced by decaying feathers, when working on or near
feather processors. In March 2002, a Tyson employee was hospitalized
with hydrogen sulfide poisoning caused by exposure to the gas while
performing maintenance on one of these feather processors.
As of October 2003, despite the fact that corporate safety and
regional management were aware that hydrogen sulfide gas was present in
the River Valley facilities, Tyson Foods did not take sufficient steps
to implement controls or protective equipment to reduce exposure within
prescribed limits or provide effective training to employees on
hydrogen sulfide gas at the Texarkana facility. On October 10, 2003,
River Valley maintenance employee Jason Kelley was overcome with
hydrogen sulfide gas while repairing a leak from the same feather
processor involved in the March 2002 incident. Mr. Kelley later died
from his injuries. Another employee and two emergency responders were
hospitalized due to exposure while attempting to rescue Kelley and two
additional employees were treated at the scene. The company was
sentenced to pay the maximum fine of $500,000 and serve a term of
probation for willfully violating worker safety regulations that led to
Mr. Kelley's death.
D. Conclusion
A strong criminal enforcement program serves several purposes.
First, it levels the economic playing field for law-abiding companies
that often devote significant resources to compliance with worker
safety and environmental laws. While most companies in the United
States comply with these laws, such companies will find themselves at a
competitive disadvantage against those companies that disobey these
laws and consequently have lower costs because they choose not to
devote financial resources to compliance.
Second, a strong criminal enforcement program strengthens
administrative and civil enforcement programs. An aggressive criminal
enforcement program makes civil and administrative enforcement efforts
more effective. A comprehensive enforcement program provides an
important deterrent to illegal activity, safeguards the nation's work
force, and enforces the law.
In sum, adding felony provisions to the OSH Act, as proposed, would
provide important tools to prosecute those employers who expose their
workers to the risk of death or serious injury, whether charged in
conjunction with environmental crimes or charged alone. The Department
of Justice supports the strengthening of OSHA's criminal penalties to
make it more consistent with other criminal statutes and further the
goal of improving worker safety.
Thank you for the opportunity to share the experiences of ENRD with
the subcommittee. I look forward to answering any questions you may
have.
______
Chairwoman Woolsey. Thank you very much.
I would like to say that my ranking member had an emergency
this morning, and she will be here in a bit. Congressman Kline
came to fill in. And he can't stay, but Mrs. McMorris Rodgers--
she will be here very soon. And she intended to be here all
along.
So thank you very much, both of you.
First of all, our PAWA legislation, if its proposed changes
seems to be a good fit for bringing OSHA into the 21st century.
And that is--feels very good to us. I have some questions.
Mr. Cruden, on the next panels, the gentleman that
represents the Chamber of Commerce is going to tell us that
using ``knowing'' versus ``willing''--``willful'' just is not
the way to go, because we don't know the definition of
``knowing.'' And, to me, the definition of ``knowing'' is
illegally conducting business when you know about what--dangers
that could have been prevented, but failed to prevent them.
Would you tell us what ``knowing'' means to the Department
of Justice?
Mr. Cruden. Let me say two things about those. And--I
realize we are talking about mental state, which is what
prosecutors argue to juries all the time. But it is not words
that we normally use.
First of all, the normal standard--the cases that we are
most familiar with, and there is an entire body of law--many
cases--is really on the ``knowing'' standard. The ``willful''
standard is actually somewhat unusual.
I am going to just tell you briefly what the leading
Supreme Court decision on that--which is a case called Bryan v.
United States. I have that decision with me. I would ask that
it be made a matter of the record as well----
Chairwoman Woolsey. Without objection.
[The information follows:]
------
Mr. Cruden [continuing]. Because the Supreme Court says, as
a general matter, when you use, in the criminal context, a
``willful'' act, it is really one undertaken for a bad purpose.
In other words, in order to establish a willful violation, the
government must prove that the defendant acted with knowledge
that his conduct was unlawful.
That is different than the ``knowing'' standard, and the
court says that. The ``knowing'' standard--you don't have to
prove a reference to a culpable state of mind or a knowledge of
the law. And, therefore, even though it is a standard that
fundamentally says--in the ``knowing''--you know what you are
doing at the time that you do it--it is not an accident, it is
not a mistake--that is a standard that is most other laws. The
willful standard is just higher. But it is elaborated in more
detail in the Supreme Court case that I mentioned.
Chairwoman Woolsey. And ``knowing'' is used with RCRA and
the Water Act and Air?
Mr. Cruden. In the Clean Water Act and the Resource
Conservation Recovery Act and the Clean Air Act--all of those
used ``knowing'' and ``knowing endangerment'' as the
prerequisites for criminal activity.
Chairwoman Woolsey. Okay. Thank you.
Mr. Cruden. Dr. Michaels, OSHA, you say, is considering,
and is revising, its penalty policy. So why isn't that enough?
I mean, what changes are forthcoming under that policy? And why
won't that be adequate to compel many employers to abate
serious hazards?
Mr. Michaels. Chairwoman Woolsey, members of the committee,
what OSHA does now is we have a penalty structure that is set
first, by law. In the OSH Act, we are allowed maximum penalty
for $7,000 for a serious violation. But, then, we have all
sorts of considerations within that. We can't go above $7,000,
and we generally start at a slightly lower point. And, then, we
reduce it for the size of the employer. And we always give
small employers a reduction.
We look at good faith--if an employer was trying to do the
right thing. We look at their history. There are a number of
factors we look at. And so what that means is the average
penalty is quite a bit lower than the maximum we are allowed.
And we think that is important. And, actually, the OSH Act
requires that we put those considerations in.
What that means, though, as a result, is even in the most
egregious case--and we have had fatalities--which, we think it
is very important to issue a strong penalty to issue a--have a
deterrent effect--we have a fatality, and our maximum penalty
is $7,000. We think that is simply unacceptable.
Chairwoman Woolsey. So, a question to both of you: The
Clean Water Act and RCRA and the Clean Air Act--they are all
newer than OSH Act, right?
Mr. Cruden. Yes.
Chairwoman Woolsey. Is that why they were more, you know,
forthcoming and--as--I mean, it appears that our love for fish
and birds is way stronger than our value and love for human
beings and our workers. But that can't be true. So----
Mr. Michaels. I can't speak to Congress' rationale for
putting this together, but it is obvious to me, when the
maximum penalty for violating the South Pacific Tuna Act is
$250,000, but the maximum penalty for a serious violation of
the OSH Act is $7,000--that sort of inequity is what we are
dealing with. And we believe it should be changed.
Mr. Cruden. And let me draw your attention--I have been
talking about environmental crimes. But we also prosecute Title
18 crimes of the United States of code. These are for lying,
cheating or stealing. And they include misrepresentation. There
is a provision of the OSHA statute of misrepresentation that
limits it to 6 months. On the other hand, if you prosecute
under our normal Clean Air Act, it would be 2 years. Under 18
USC 1001, it is 5 years. So there is a disparity as opposed to
other statutes beyond environmental crimes.
Chairwoman Woolsey. Right. Thank you very much.
Congressman Sablan?
Mr. Sablan. Thank you very much, Madam Chairman, and thank
you for your leadership in this very important matter.
I don't have a question. I actually have a compliment for
OSHA for making a lot of the work environment in the Northern
Mariana Islands a safe place--a much safer place. We do still
need to get more involved in these issues. And I am very happy
that we are trying to increase the penalties, and probably give
the Department of Justice more tools in which to work with.
Thank you very much.
Thank you.
Mr. Michaels. Thank you, sir.
Chairwoman Woolsey. No questions?
Mr. Sablan. No questions.
Chairwoman Woolsey. Oh. Thank you very much.
Congressman Hare?
Mr. Hare. Thank you, Madam Chair, and thanks for having
this hearing this morning.
Dr. Michaels, I want to welcome you to the committee, and I
am pleased that you were finally confirmed by the Senate. It is
no short--that is some sort of a miracle sometimes, there.
Your appearance here, today, is a homecoming, as I
understand. You had worked for the committee staff for--17
years ago, when Bill Ford was the chairman. So I want to
welcome you back.
I just have a couple questions I want to ask. To clear up
the record--because the second panel, you probably won't have a
chance to respond. Dr. Michaels, is one of the biggest
weaknesses in the OSH Act's current penalty the lack of a
meaningful deterrent for senior corporate officials who are
responsible for things?
And let me just--you know, we saw, for example, at BP, the
executives in London repeatedly cut the budget for process
safety at its U.S. refineries. And, despite warnings and
safety--the safety was in peril--and we found, by the Chemical
Safety Board, to be a root cause of that explosion, which
killed 15 and injured 170. So I would just like to get your
take on that, if you wouldn't mind.
Mr. Michaels. Yes, this administration agrees with the
provision of PAWA that says that we hold responsible--corporate
executives responsible--because they make decisions that affect
workers' lives. There is no question that, you know, as we look
at the deterrent effect, we know that the provisions have to go
beyond simply, you know, a relatively small fine and a
misdemeanor.
And we believe in the lessons--we believe the lessons from
many other successful legislation is to determine exactly who,
at the corporate level, is able to make those changes that we
need to be made. And that really goes to the very high
corporate officials.
Mr. Hare. Well, if I could, Mr. Secretary, I would like to
ask you and Mr. Cruden that--you are going to hear some--we are
going to hear some testimony, as I understand it, that because
of this provision provided for criminal liability for corporate
officers--results in a witch hunt.
Would you concur with that this is going on some sort of a
witch hunt when we go after the CEOs of these companies that--
--
Mr. Cruden. No, there will be no witch hunt. What there
would be, though, is more effective deterrents.
Our prosecution is not just for punishment. We are hoping
that everybody else who is similarly situated learns of that
and decides that they won't do it. And there is another aspect
I think people lose sometimes, that OSHA accomplishes, and I
think that the Department of Justice does, too--and that is to
level the economic playing field.
We know that most companies are trying to comply with the
law. But those companies who don't spend the money to train,
who don't get the extra equipment--they are actually getting a
competitive advantage against those companies that are
complying with the law.
So one of the things that we accomplish in these
prosecutions is actually to protect those small businesses who
are doing their absolute best to meet all the standards of the
law that exist.
Mr. Hare. And I would agree with you, because I believe
that the vast majority of corporations and companies want to do
the best that they can for their employees.
Mr. Cruden. We agree.
Mr. Hare. But we have instances--and I have seen this at
the--hearing after hearing, here--where some--you know, a small
percent--believe it is just better to pay the fine and keep,
you know, practicing as usual. And that is got to stop. And I
think that when we find that--I think those penalties got to
be, you know, severe, because what is happening is everybody,
then, gets pulled into this thing that they are all alike,
which is simply not the case.
And, just lastly, as a point--you know, I didn't bring my
hand-drawn chart this morning, but I had some people in my
office about 2 months ago, and they brought out this chart. And
they were complaining about what you guys are doing. And they
were saying, ``Look at these number of inspections. They are
going up.'' And I am going, ``Yes?'' And, at the same time,
their charts showed the amount of accidents going down.
So when they left, I looked over, I think, at Kevin--and I
said to my legislative director--and said, ``I think they just
made the case for me, here.''
And I think that it is important that, you know, people
have an opportunity--I worked in a clothing factory for 13
years. We had two OSHA inspections. They lasted a total--the
first one lasted a total of 2\1/2\ minutes. And the second one,
they went way out, and they were there for about 7. So I
appreciate what you do every day. And I thank you.
I yield back.
Chairwoman Woolsey. Congressman Bishop?
Mr. Bishop. Thank you, Madam Chair, and thank you for
holding this hearing--and my appreciation to the witnesses.
Last April, I introduced a bill, H.R. 2199. It is called
the Protecting Workers from Imminent Dangers Act of 2009. And,
if passed, it would give OSHA the authority to immediately shut
down a work site in the event of imminent danger to workers'
health or safety.
As I understand it, that is authority that MSHA currently
has--currently has its authority--that the New York City
version of OSHA has. And so my question, A--and this is to the
Secretary Michaels--has OSHA ever considered implementing such
authority? If such authority were to be legislatively granted,
how would OSHA respond to that?
Mr. Michaels. Congressman Bishop, I am familiar with your
bill.
You know, this administration doesn't yet have a position,
though we do look at this issue as a very serious one.
As you know, we do not have the authority to shut down a
job. The Mine Safety Health Administration's authority is a
phone call. If they get a report that a certain condition
exists, they get on the phone. They can call the mine operator.
And the job must be shut down, even before the inspector gets
there. And OSHA has nothing at all comparable to that. And we
would look forward to working very closely with you to look at
this bill, and to make sure, you know--well, we would look
forward to working very closely with you on this bill.
Mr. Bishop. I would hope we would get some bipartisan
support on this. I was interested to hear Representative Kline,
in his opening comments, talk about the value of being
proactive and preventing injuries before they occur, as opposed
to punishing employers when injuries do occur. So I would hope
we would get some bipartisan support.
Could you, Secretary Michaels, just sort of walk us through
current OSHA procedures when a worksite shows evidence of
imminent danger to the workers?
Mr. Michaels. Our inspector--you know, I think, actually--
Actually, Rich Fairfax, here--he is our--the chief of
enforcement is here. And if he could join me up here, he can
probably address this much more clearly than I can.
Mr. Fairfax. Thank you.
When our inspectors are on-site, and they run into an
imminent danger or we receive a call, and we investigate--the
first thing we do is raise the issue with the employer and ask
them to fix it immediately. If they decline or don't take any
action, then we do--what we do is we will post what is called
an imminent-danger notice, and we contact--or, you know, make
contacts with the workers and ask them to move away from the
area.
So we post an imminent-danger notice and if that still
doesn't work, then we go back with our attorneys and we seek a
temporary restraining order against the----
Chairwoman Woolsey. Will the gentleman yield 1 minute?
Would you please state your name for the record?
Mr. Fairfax. Oh, I am sorry--Richard Fairfax. I am the
director of enforcement programs for OSHA.
Chairwoman Woolsey. Thank you very much.
Mr. Bishop. If I may, Madam Chair--could you estimate the
sort of elapsed time from the time that OSHA first becomes
aware of what reasonable people would consider to be an
imminent danger, to the point where you would seek a court
order to shut down a workplace?
Mr. Fairfax. Actually, I accomplish it in about an hour--
maybe 1\1/2\.
Mr. Bishop. Really?
Mr. Fairfax. Yes.
Mr. Bishop. Okay.
Mr. Fairfax. You know that is just if everything is
perfect, and we can get hold of the judge and everything.
Mr. Bishop. And when things aren't perfect?
Mr. Fairfax. Then it takes 2 or 3 hours.
Mr. Bishop. Really?
Mr. Fairfax. Yes.
Mr. Bishop. But you can get it done in a day?
Mr. Fairfax. We take this very, very seriously.
Mr. Bishop. Okay.
Mr. Fairfax. When we have information, you know, pointing
to that, then we respond and work with our attorneys and get a
judge right away.
Mr. Bishop. Thank you very much.
Madam Chair, I yield back.
Chairwoman Woolsey. Thank you.
Congressman Payne?
Mr. Payne. Thank you very much.
I have been somewhat troubled in the last decade or so,
where we have seen the number of the workplace seem to become
more hazardous. We have seen deaths from employers--employees--
especially around the New York, New Jersey area--jobs like
construction workers, faulty equipment, the--and so I might
just ask both of you, in general: Have you, during, say, the
past eight or 10 years, seemed to get a feeling that there has
been a relaxation, or either a lack of serious concern on the
part of the employer about occupational safety?
For example, I am mentioning primarily the construction
trade in New York, where just the other day, I think it was
determined that, knowingly, some equipment was faulty, but the
firm went forward with it. I just wondered what your opinion
is--both of you.
Mr. Michaels. I think that is an interesting question.
I can't speak to the construction industry in New York. My
impression from looking at, at least, some of the statistics,
which I think are very limited, is that there is really a
bifurcation--that there are some employers who recognize the
importance of safety, and they are doing a better and better
job, and their injury rates really are going down, and the
hazards we see are going down.
On the other hand, there are a lot of employers who have
decided that they don't need to do that at all. And some of
them are employers who hire immigrant workers who don't speak
English, who are willing to cut corners, and who knows that
they are not going to pay any of the costs of workplace
injuries because these employees will never apply for workers'
compensation, or they rarely will, and they will disappear.
And that is my impression. One of the problems we are
facing is I think our statistics aren't very good. And, you
know, we have--we see the numbers going down. But I think the--
I am the statistician. I have some interest in this question
from a professional level. And there has been some recent
studies--and I have these--I would like to add them to record--
showing that the Bureau of Labor Statistics--reports we get
from employers are incomplete.
In fact, there was a study recently done on amputations in
Michigan industry. Now, amputations are something that is
pretty clear. When they happen in the workplace, we know that
they have occurred. And the Bureau of Labor Statistics got
reports from--this is 2007--of less than 200. When Michigan
state went to hospitals in Michigan and found how many
amputations really occurred in workplaces that year, it was
almost 800. So they missed three out of four.
So we don't really know what is--from a statistical point
of view, we don't really know what is going on. But we see that
certain industries--things are pretty bad. And other ones, they
are getting much better. So we have to focus on those places
where the employers really are not taking their responsibility
seriously, and workers are getting hurt. And they tend to be
the workers that--who are also--already the poorest and have
the least understanding of what their rights are.
Mr. Cruden. Your question is almost precisely the reason
why we initiated the Worker Endangerment Initiative at the
Department of Justice, and reached out to OSHA and EPA--
because, again, our finding that companies that were violating
environmental laws were cutting corners in protecting their own
workers.
And those things seem to go in tandem. And those cases that
I was describing--all of those cases meet exactly what you are
talking about, and that is individuals who are, in fact, going
through series--not just one or two--but series of turning
their eye toward what is, in fact, serious risks to workers.
And those serious risks ought to be something that we can
address with our criminal statutes, and not just death. And our
prosecutions actually prevent those companies from just passing
along to the consumers the cost of doing business.
And so, again, I think what you have captured is, again,
exactly the reason we started our Worker Endangerment
Initiative.
Mr. Payne. I have a question regarding the safety.
We recently went to a coal mine--Chairman took some--a trip
to a coal mine in West Virginia. And the leadership of the mine
said that the big difference that they saw--not the leadership
of the mine, but some of the federal officials were saying that
the training component that is a part of the--I see a red light
flashing. I saw it go on, but I know they keep flashing, so I
can't stop in the middle of this statement, but let me----
Chairwoman Woolsey. We are not going to. Go ahead, Mr.
Payne.
Mr. Payne. Could you give me a second?
They said that the time that is taken for training of the
coal miners' safety procedures--which, of course, takes time
out of the workday because you are doing it, and it is sort of
a--maybe a little production loss--but it is very important. Do
you feel that the conscientious--as you mentioned, a
conscientious, you know, person--does this kind of thing even
as a negative to the bottom line, but the overall safety of the
worker is preserved?
Mr. Michaels. There is no question that the responsible
employers who take safety and health seriously include
training--a training component as part of their management
system--these are employers who understand that safety and
health is a continuous process, and that part of that is making
sure workers know how to protect themselves, and who is
responsible for safety in the workplace, and how to work with--
how to work together to make sure safety is accomplished.
Those employers that do no training at all, certainly, are
ones that we think are much more likely to be places where the
injury rates are higher.
Chairwoman Woolsey. If there is no objection, I would like
to include the studies that Dr. Michaels was referring to, into
the record.
[The information follows:]
------
[Additional submission from Mr. Michaels, ``Work Related
Amputation in Michigan, 2007,'' may be accessed at the
following Internet address:]
http://www.oem.msu.edu/userfiles/file/Annual%20Reports/Amputations/
2007%20MI%20WR%20amputations.pdf
______
Chairwoman Woolsey. Now, we have a guest of--Congresswoman
Titus from Nevada is here. She is a member of the Education and
Labor Committee. And this is an issue of great interest to her.
So I would like to recognize her for 5 minutes.
Ms. Titus. Thank you very much, Madam Chairman, for
allowing me to join this very important subcommittee hearing.
The Protecting American Workers Act proposes to update both
the civil and criminal penalties under the 1970 OSHA. So the
penalties will function as an effective deterrent, and hold
those responsible for unsafe working conditions accountable.
As you well know, my home state of Nevada is one of 22
states that has developed its own independent program. Now,
these state programs are required by law to be at least as
effective as the federal standards. And, yet, Title Four of the
Protecting America Work Act recognizes the fact that changes to
OSHA don't automatically apply to the states with an approved
state plan.
The bill instructs these states to change their plans to
conform with the federal law. But the question is: What if a
state chooses not to comply? Issues of state non-compliance
have recently been brought to light in Nevada. And what is very
clear from the recent OSHA special review of Nevada's program
is that we have not been doing a good job of enforcing those
standards in the state.
Yet, under current law, federal OSHA has only two options
to make Nevada comply and protect its workers. One is to ask
nicely. And the other is to take the much more drastic action
and take over the state plan. Now, this is an extreme step that
removes the state's control, leaves state and local government
employees unprotected, and adds cost to the federal government
for funding and running the state plan.
That is why, this morning, with the help of the chairwoman,
I introduced legislation called Ensuring Worker Safety Act. And
it would provide workers with safety standards and more
effective enforcement, but also would allow the states to still
play an important role, and protect states' rights. And it
would do this by giving OSHA some options other than just the
two extremes.
It would establish a formal mechanism for identifying a
problem with a state plan, and compel a remedy, without
beginning the process of withdrawing approval.
Now, I would like to ask you if such concurrent enforcement
would be a good tool for OSHA so that you don't have to take
one of the two extreme steps, and would allow states to remedy
the problem, but give you some control during that period; and
would also put some timelines in place so they can't drag this
process out forever?
So I would ask that to the--Secretary Michaels. And, then,
I would ask you, Mr. Cruden, if you would talk about how
concurrent enforcement has been effective in dealing with
environmental law.
Mr. Michaels. Congresswoman Titus, first, thank you for
your work examining the effectiveness of state plans, and,
particularly, the Nevada plan.
Too many Nevadans have died needlessly in workplaces
because of--and I think the inadequacies of OSHA regulation
have posed a difficult challenge there, and are--really need to
be addressed. And our audit there has determined some very
significant problems. And we are now looking at other states as
well. And I think, with your help, we have really begun to take
on this issue. And it is a very important one.
I haven't seen your legislation. I had heard it was coming.
We certainly need tools to--you have summarized the problem
very clearly. We have the death penalty available. We could
take over a state plan, or we could ask very nicely. But we
don't have anything in between.
And for us to have effective oversight of state plans, we
need additional tools. And so I think anything that helps us
get there will be very welcome. And I look forward to working
with you on this.
Ms. Titus. Thank you.
Mr. Cruden. In environmental law, we actually have a long
history of working with states, because they are an integral
part of what we try to accomplish in this notion that we refer
to as ``Cooperative Federalism,'' where states actually, in
environmental prosecution, bring most of the cases--civilly,
certainly--but there is, in fact, a place for federal actions,
and, then, at the very top of those, federal criminal actions.
But in the United States today, most of the--your
environmental prosecutions are done by state and local
governments, which I actually think is the right way to do it.
But there has to be a check and balance. There has to be a way
that we are assuring that those prosecutions are consistent
across the country, and meet the minimum standards that I
believe you are advocating.
Ms. Titus. Thank you.
And thank you, Madam Chairman. And I look forward to
working on this legislation with your guidance, and with help
from OSHA, as we move forward.
Chairwoman Woolsey. Oh, thank you, Congresswoman, for being
here.
Thank you, panel one. You have helped us a lot. You have
filled in a lot of the questions. And we will go forward from
here. And the next step forward is panel two. Thank you.
Look who is here.
We have been joined by our ranking member, Congresswoman
McMorris Rodgers.
I gave your apologies.
Mrs. McMorris Rodgers. Thank you.
Chairwoman Woolsey. I told them it was beyond your control,
which--if we could have put this off, we would have.
Mrs. McMorris Rodgers. Yes.
Chairwoman Woolsey. That was beyond our control.
So now I would like to introduce our second panel of very
distinguished witnesses.
First, in this order of presentation--Mr. Eric Frumin
serves as the health and safety coordinator for Change to Win.
Eric serves as chair of the Labor Advisory Committee on OSHA
Statistics to the U.S. Bureau of Labor Statistics from 1983 to
2003. He received his B.A. from the State University of New
York in 1979, and his master's degree from New York University
in 1981.
Next, Mr. Jonathan Snare is a partner in Morgan Lewis'
Labor and Employment Practice. Mr. Snare's practice focuses on
labor-related issues, including occupational safety and health,
mine safety and health, and whistleblower cases.
He received his J.D. from Washington and Lee University
School of Law and his B.A. from the University of Virginia.
And I think you heard me say that the--we do have a
lighting system here. The green light goes on when you start
speaking. And by the time it gets to yellow, if you are
wrapping up, you know you will get finished.
Thank you.
We will start with you, Mr. Frumin.
STATEMENT OF ERIC FRUMIN, HEALTH AND SAFETY COORDINATOR, CHANGE
TO WIN
Mr. Frumin. Thank you, Chairman Woolsey, Ranking Member
McMorris Rodgers, and members of the subcommittee, for the
opportunity to testify today.
I am Eric Frumin, Health and Safety Coordinator for Change
to Win. I have worked in this field for 36 years.
We greatly appreciate the leadership of Chairman Miller,
Ms. Woolsey, the subcommittee, for holding this hearing, and
for your determined interest in the serious problems
confronting workers, ethical employers, OSHA and others
concerned with the severe gaps in OSHA's enforcement,
including, specifically, the question of outdated penalties.
These shortcomings endanger workers' lives, and Congress
has the power to close the gaps and strengthen the protections
that workers deserve. We strongly support the Protecting
America's Workers Act. We also support the other changes that
we now understand the committee is considering, to further
improve the bill.
And I would note that the AFL-CIO has submitted a statement
of support as well.
First, let us recognize that the OSH Act has made a
substantial difference for workers and employers. But 40 years
on, the--OSHA's enforcement program is too weak in many
respects. OSHA's ability to effectively conduct enforcement
programs has been diminished. And even with the important
additional resources which President Obama and Secretary Solis
have added, the number of inspectors has still not kept pace
with the growth of the workforce.
Many of the deficiencies in enforcement rest with the act
itself, and must be addressed through congressional action. The
maximum and minimum penalties are too small to deter
misconduct, particularly in comparison with environmental and
other safety laws.
OSHA continues to find and cite repeated violations where
employers don't even fix the violations for which OSHA had
cited them before. Why should negligent managers feel free in
such--to engage in such negligence in the first place? Stronger
sanctions are clearly necessary to make them fix these
dangerous conditions the first time, without waiting for
workers to suffer injury.
And the problem of recidivist behavior is not limited to
smaller employers. Major employers, like BP, have just paid
tens of millions of dollars for failing to keep their promises
to their employees, their shareholders, and their communities,
not to mention, OSHA.
In 2005, the Cintas--OSHA cited the Cintas Corporation a
$2,000 penalty for failing to guard machinery which was very
dangerous, and which was the subject of a very--near-fatal
incident a year before. Shortly thereafter, Eleazar Torres
Gomes died at a Cintas plant in Oklahoma. And another Cintas
employee from Yakima, Washington--Mrs. McMorris Rodgers--close
to your district--was very severely injured at the same--around
the same time.
After multiple worker complaints, OSHA inspections, and a
$3 million penalty, Cintas finally agreed to fix the same
hazards in 106 locations in 36 states around the country. It
should not have required his death in order for Cintas to
accept its responsibilities to its employees, and fix those
problems, after being cited the first time, especially when
they knew how serious that problem was.
The current penalties are much too low. The message to
employers and workers in their communities, and shareholders,
is pretty clear: Workers' lives don't mean much, and corporate
executives have little to fear from the secretary of labor,
under current law.
In other cases, large companies like Xcel Energy,
Incorporated hire others to do hazardous work because they know
the work is dangerous. For instance, Xcel recently allowed a
very disreputable contractor with a history of OSHA violations
to work in a very dangerous situation. And it led to an
incident where five employees died. Under the current OSHA
statute, huge companies like Xcel, who hire these disreputable
contractors, are exempt from liability.
And this is the indictment that the U.S. attorney secured
against Xcel. And in this case, they did it for--they indicted
Xcel for aiding and abetting that contractor. I would like to
have this entered into the record.
But the corporate executives at----
Chairwoman Woolsey. Without objection.
[The information follows:]
------
Mr. Frumin. Thank you.
The corporate executives at Xcel fear no more than the ones
at Cintas do that they will lose their freedom. They are not
subject to the penalties--to the criminal sanctions under the
current regime.
It is time to fix these disparities once and for all,
between the OSH Act and the environmental statutes. And we need
to address the state-plan problems as well. The recent problems
that--the recent example in Wyoming shows that the states are
simply not going to fix these problems and address the penalty
structures--penalty weaknesses.
Finally, I would just like to close by responding to one of
the things that Mr. Snare says in his testimony. He said that
the effort to change the OSH Act is driven by a few outlier
employers. Is Cintas an outlier employer? They are the industry
leader. Is McWane an outlier employer? They are the industry
leader. Is BP or Xcel an outlier employer? They are major
members of the Chamber of Commerce; and their conduct is
reprehensible.
We are not dealing with outlier employers. We are dealing
with a law and a legal regimen which is simply not up to the
task of dealing with and preventing these kinds of outrageous
abuses by major American corporations.
Thank you very much. I would like my full statement entered
into the record.
[The statement of Mr. Frumin follows:]
Prepared Statement of Eric Frumin, Health and Safety Coordinator,
Change to Win
Chairman Woolsey, Ranking Member McMorris Rodgers, and members of
the Subcommittee, thank you for the opportunity to testify today.
I am Eric Frumin. I serve as the Health and Safety Coordinator for
Change to Win, and have worked in this field for 36 years. Change to
Win is a partnership of five unions and 5.5 million workers, in a wide
variety of industries, building a new movement of working people
equipped to meet the challenges of the global economy in the 21st
century and restore the American Dream: a paycheck that can support a
family, affordable health care, a secure retirement and dignity on the
job. The five partner unions are: International Brotherhood of
Teamsters, Laborers' International Union of North America, Service
Employees International Union, United Farm Workers of America, and
United Food and Commercial Workers International Union.
On behalf of Change to Win, we greatly appreciate the leadership of
Chairman Miller, Chairman Woolsey and this Subcommittee in holding this
hearing, and for your determined interest in the serious problems
confronting workers, ethical employers, OSHA and others concerned with
the severe gaps in OSHA's enforcement powers, including specifically
the question of outdated penalties.\1\ These shortcomings endanger
workers' lives, and Congress has the power to close the gaps and
strengthen the protections that workers deserve. We strongly support
the Protecting America's Workers Act's PAWA (HR 2067).
We also support the changes which we now understand the Committee
is considering to further improve the bill you introduced last year.
These include the improvements in Title II to protect workers whose
employers would rather ruthlessly retaliate against employees who
complain about hazards or violations--instead of holding themselves
accountable for violating the law and endangering their employees.
These improvements provide the protections that have served workers
well under other laws, and fixes a severe problem which has hindered
OSHA enforcement for decades.
In addition, we support other related legislation introduced by
your Committee to close the loopholes in the OSHAct, such as HR 2113,
to improve the reporting practices of large corporations regarding
their violations and their employees injuries on the job, and HR 2199
to better and more quickly protect workers facing imminent dangers of
severe hazards.
Let's first recognize that the OSHAct has made a substantial
difference for workers and employers. For 2008, BLS has reported that
5,071 workers died from injuries on the job, an average of 14 workers
every day. While still completely unacceptable, it is down from
significantly from the 6,632 that BLS reported in 1994.\2\ (An
estimated 50,000 more workers lost their lives due to occupational
diseases, which necessitates long-overdue action to reduce and wherever
possible eliminate the widespread hazards from toxic materials in the
workplace.)
And for 2008, the BLS tells us that employers reported 3.7 million
work-related injuries and illnesses.\3\ We know's and the Labor
Department and others have conceded--that this number does not reflect
the full extent of job injuries.\4,5\ And we believe the real number is
estimated to be substantially greater. But it is also unquestionable
that the actual numbers and rates of non-fatal injuries and illnesses
has declined substantially since 1970's particularly in highly
hazardous industries and occupations.
But 40 years on, the OSHAct's enforcement program is too weak in
many respects. Over the years OSHA's ability to effectively conduct
enforcement programs has been greatly diminished.\6\ Even with the very
important additional resources which President Obama and Secretary
Solis have added, the number of inspectors has still not nearly kept
pace with the growth of the American workforce. We certainly welcome
these additional resources, as well as the many enforcement initiatives
adopted by Secretary Solis and the other new leaders within the Labor
Department. However, we also recognize that no Secretary, Assistant
Secretary or Labor Solicitor can overcome the basic and severe limits
of the Act itself.
The Administration's improvements in OSHA's enforcement and penalty
policies could and should help strengthen enforcement's as soon as
possible. And they will need to be supported by Congressional action to
provide the necessary resources, especially if the new penalty
provisions are adopted.
But many of the deficiencies in enforcement rest with the OSHAct
itself and must be addressed through Congressional action. The OSHAct's
enforcement program is too weak's especially the maximum and minimum
penalties's to deter misconduct, particularly in comparison with
environmental and other safety laws.
For example, the penalties for serious violations are absurdly low.
Serious violations of the OSH Act are violations capable of causing
``death or serious physical harm's'' hazards that can very seriously
injure, sicken or even kill workers.
For such violations, the current law allows a maximum penalty of
$7,000. However, OSHA's own data shows that the average penalty issued
by Federal inspectors for such serious violations in FY 2009 was only
$970. Excluding California, where the law already calls for higher
penalties, the average serious penalty assessed by state plans is only
65 percent of the federal OSHA average.\7\
Aside from OSHA, every other federal enforcement agency--except the
IRS--is covered by the Federal Civil Penalties Inflation Adjustment
Act, which requires increases in penalties for inflation. The last time
that the Congress adjusted these penalties was in 1990's the only time
in 40 years that Congress has increased the penalties since it passed
the Act in 1970. Thus, the real effect of OSHA penalties has been
reduced by about 40% since 1990. The penalty provisions of PAWA would
do so by increasing the maximum penalties for Serious and Other
violations from $7,000 to $12,000, and for Willful and Repeat
violations from $70,000 to $120,000. It is high time to correct this
terrible disparity.
Grossly inadequate deterrence
The current penalties do not provide a serious deterrent to serious
misbehavior by employers. OSHA continues to find and cite repeated
violations as well as so-called ``failure-to-abate'' penalties where
employers don't even fix the violations for which OSHA has cited them
at the same worksites. Cases involving willful and repeated violations
commonly trigger the additional detailed investigations and higher
penalties in subsequent inspections. But why should negligent managers
feel free to engage in such negligence in the first place? Stronger
sanctions are clearly necessary to make them fix these dangerous
conditions the first time rather than see workers suffer needless
additional injury.
The problem of recidivist behavior is not limited to small
employers. Major employers in particular fail to get the message. OSHA
recently announced a record $87 million penalty at BP, after a previous
citations with record penalties of $21 million.Of that $87 million,
nearly $57 million was to penalize BP for failing to keep its previous
promises to OSHA, its employees, its shareholders and the community to
stop these abusive practices and to abate serious hazards which OSHA
had already identified.
In 2005, OSHA cited the Cintas Corp. for failing to guard its
heavy-duty automated laundry equipment's despite a near fatal incident
the year before on a similar piece of equipment, and common knowledge
in the industry about this hazard. OSHA only imposed a penalty of
$2125, which itself was later reduced. Shortly thereafter, Eleazar
Torres Gomez was killed after being thrown into an industrial dryer
while trying to clear a large conveyor, and another employee was
severely injured in Washington state. Eventually, multiple Cintas
plants in eight states across the country were found to have repeatedly
violated the same or similar applicable standards. Only many months
later, after these multiple worker complaints, OSHA inspections and a
nearly $3 million penalty, did Cintas finally agree to fix all its 106
locations in 36 states across the country with similar hazards.
It should not have required Mr. Torres Gomez's gruesome death in an
industrial dryer, and the significant sanctions that OSHA later
imposed, to force Cintas to take seriously its simple legal obligation
to guard hazardous machines and protect its hardworking and loyal
employees. The first citation and penalty in 2005, for a deadly hazard
that was already well-known to the employer, should have been
sufficient to trigger action across the company's particularly in a
company whose own policies require local management compliance with
corporate directives.
In other cases, where there are no willful or repeat violations,
OSHA is confronting a fatality and potential violations for the first
time. In these cases, the deterrence is even worse. The current
penalties for common serious violations, in cases of worker deaths, are
completely unacceptable.
When WalMart's managers in Valley Stream, NY completely failed to
plan for the huge crowds at their major store on the Thanksgiving
Friday, 2008, and a store employee was literally trampled to death as a
result of that poor planning, the only sanction WalMart suffered was a
$7000 penalty. And despite this negligible sanction, WalMart is still
vigorously challenging that penalty on appeal.
In 2008, Raul Figueroa, a mechanic at Waste Management, Inc. (WMI)
in South Florida was killed by the hydraulic arm of the garbage truck
he was repairing. The ultimate penalty was only $6,300.\8\ Waste
Management is one of the largest companies in the solid waste industry.
What difference does a $6,300 penalty make to a giant corporation?
As revealed by the 2008 study by the Majority Staff for the Senate
Committee on Health, Education, Labor and Pensions, among all federal
OSHA fatality investigations conducted in FY 2007, the median initial
penalty was just $5,900.\9\ Worse, after negotiation and settlement,
the median final penalty for workplace fatalities was reduced to only
$3,675. For willful violations in fatality cases, the median final
penalty was $29,400, less than half the statutory maximum of $70,000
for such violations.
The message to employers, workers, their communities and corporate
shareholders is pretty clear: workers' lives don't mean much, and
corporate executives have little to fear from the Secretary of Labor
under the current law.
Where employers use contract labor for especially hazardous tasks,
the potential sanctions are non-existent for the corporations and
executives who control the workplace.
In many cases, such as that of Xcel Energy, Inc., the employer
hires others to do the most hazardous jobs, in part because the
employer is fully aware of the dangers of doing the work with its own
employees. Having hired a disreputable painting contractor with a
history of OSHA violations to paint the inside of a large hydroelectric
tunnel,\10\ the Xcel Corp. ignored its own confined space policy and
allowed the contractor's work to proceed under very hazardous
conditions. Shortly thereafter, five men died when a fire started among
the chemicals they were handling in the tunnel. Under the current OSHA
statute, with the exception of the construction industry, only the
contractor business itself as well as its officers, could be held
accountable for allowing those conditions to exist in the first place.
The huge corporations which hire these disreputable contractors are
exempt from liabililty for OSHA violations and subsequent prosecution.
Fortunately, the US Attorney in Denver decided to take a more
creative approach, and secured an indictment of not just the contractor
and its officers, but also against Xcel Corp. for ``aiding and
abetting'' the contractor.\11\ But the corporate executives at Xcel
Corp. still faced no more of a threat than did the ones at Cintas's
since it was only the corporation itself that was charged. It remains
to be seen now whether or not the Xcel executives take the steps to
fully protect their employees. But it is certain that none of them will
suffer any personal loss of freedom or penalties for the horrific
consequences of their company's abysmal failures.
A better model exists under environmental and other criminal law
The negligible penalties commonly provided under the OSHAct's and
the lack of deterrence they exact--contrasts very strongly with the
comparable provisions under other Federal laws on human and
environmental health and safety. Whether we look at financial
penalties, the severity of the available criminal sanctions, the degree
of harm required to impose serious sanctions, or other measures, the
OSHAct shows a blatant disregard for the lives and health of American
workers.
Environmental laws have explicit criminal sanctions with jail terms
of up to 15 years for knowing violations of environmental protection
regulations and knowing endangerment of workers. There is no need under
these laws to demonstrate that anyone was actually harmed, much less
actually killed.
For nearly 20 years, EPA's enforcement policies have also placed
deterrence as its top priority in enforcement proceedings ahead of
``Fair and Equitable Treatment of the Regulated Community'' or ``Swift
Resolution of Environmental Problems.'' \12\ And EPA has used its
criminal authority vigorously and frequently at least in comparison to
the lackluster track record on criminal sanctions by the Labor and
Justice Departments under the OSHAct. As the previous Assistant
Attorney General Ronald Tenpas said recently in his comments on their
prosecutions of employers with both environmental and worker safety
violations:
``There are obviously plenty of good corporate citizens out there
who want to do right by their workers and want to do the right thing,
but there are always going to be some for whom it's important that they
know there's the threat of prosecution and there's the threat of going
to jail and there's the threat that their company bottom line is going
to be hit and hit significantly if they don't comply with the law.''
``At the end of the day, we work with the penalties that Congress
has decided over time are the appropriate ones to provide. In some of
those cases, McWane being an example, we have found there may be
violations related to worker safety, but there are also more serious
violations related to the environment where penalties are typically
much more significant: maximum five years, 10 years, jail time. So
we've tried to make sure we're using the full-range of enforcement
options we have, including the environmental statutes for those
situations.'' \13\
It is time to fix this disparity, once and for all.
Criminal sanctions and prosecutions
Finally, only a small handful of OSHA cases with willful
violations, and only those involving fatalities, are prosecuted for
criminal violations. With hundreds of fatality investigations annually,
only a literal handful are referred to the Justice Department for
prosecution, and some of those are never pursued. One reason so few
cases are treated this way is that the worst penalty these criminals
face is a six-month sentence, a mere misdemeanor. Given the average
caseload of an Assistant U.S. Attorney, it is no surprise that such
cases fail to attract the prosecutorial zeal that is required to
investigate complicated, non-routine cases involving issues that
federal prosecutors rarely see in their careers.
Contrast that with the average of 360 cases referred annually by
EPA to DOJ for criminal prosecutions during the last 7 years of the
Bush Administration alone. In 2009, the prosecutions yielded 176
defendants receiving in 57 years of jail time and $64 million in
penalties, more cases, fines and jail time in one year than during
OSHA's entire history.\14\
Why are these cases treated so differently? One reason is that, as
the Committee heard last year, the environmental laws carry maximum
penalties of three to five years per substantive count, and 15 years
for crimes involving knowing endangerment (regardless of whether any
injury occurs).\15\
The OSH Act should be amended to provide similar penalties. PAWA
goes part of the way by raising the maximum sentence to 5 years for the
first offense, and 10 years for a second offense, far less than the 15
years available to prosecutors under environmental law, but, as
felonies, a substantial improvement over the mere six-month misdemeanor
under current the current OSHAct.
To make matters worse, the criminal sanctions only apply to cases
where the willful violations actually kill a worker. Short of that, no
matter how badly the worker was injured or diseased, and no matter how
egregious the employer's behavior, there is not even the threat of
criminal prosecution.
Again, PAWA fixes this serious gap by applying the criminal
sanctions to not only those willful violations that kill workers, but
also to the same kinds of violations that seriously injury or sicken
them. Again, this is considerably less jail time than would be the case
if the same hazard were prohibited under our environmental laws.\16\
But it is vast improvement over the virtual immunity which negligent
employers now enjoy from criminal prosecution when they willfully
endanger the safety of their employees.
Finally, we understand that the Committee is considering applying
such penalties to cases of ``knowing'' violations, rather than the
``willful'' violations under current OSHA law, a category which does
not exist elsewhere in environmental or other criminal law. As the
Committee heard last year,\17\ this is a much better grounds for
prosecution, since it is already familiar to prosecutors, and denies
employers the defense that they were ignorant of the law. We strongly
support this change, and urge the Committee to assure that it is
included in any final legislation.
The disparity in criminal sanctions is evident: as long as it is
only a misdemeanor to kill a worker or lie to an OSHA inspector, many
such cases will linger and die while cases under other laws promising
greater deterrence will get the attention of prosecutors. Simply put,
under the OSHAct, there is nothing resembling justice for the families
and co-workers of those who suffer or die at the hands of negligent
employers.
State Plan inadequacies
Notwithstanding the strengths and weaknesses of the current Federal
OSHA enforcement program, state plans have greatly different approaches
to fatality investigations and sanctions, in addition to the much
weaker practices on penalties mentioned above. These variations include
not only the level of penalty,\18\ but also whether to classify
violations as serious in the first place,\19\ as well as the nature of
the follow-up enforcement involving other locations of the same
company. Thus, our problems with the absence of strong deterrence
through higher penalties is magnified further for the millions of
workers in the 23 states where the enforcement is administered by state
authorities.
Under the current OSHAct, the Secretary of Labor has had
exceptional difficulty forcing states to conform their enforcement
programs to the performance levels of federal OSHA. However, at a
minimum, PAWA would force states to increase their penalties and
criminal sanctions as well.
Recently, the Wyoming Governor's Worker Fatality Prevention Task
Force recommended that the state legislature adopt the same penalties
that you have proposed in PAWA to help stop the fatalities in the
state's construction and oil/gas drilling industries, deaths that have
kept Wyoming's place as having the highest rate of worker deaths in the
entire country. Outrageously, after both bi-partisan sponsorship as
well as an overwhelming vote for passage by the state's House, the
Wyoming Senate voted it down two weeks ago in a tie vote. And this was
after the state's oil/gas industry, publicly, at least--supported this
legislation.
As the Wyoming example makes clear, even where governors or
legislators recognize the same faults with the penalties under their
own OSHA laws as you have recognized with federal law, the challenge of
fixing that problem is a practical impossibility. Other than
California, no state has increased its penalties above the federal
minimums, and we should not expect the states to do so short of action
by the Congress in passing PAWA. Only action by the US Congress is
going to close this gap.
Conclusion
The penalties proposed by PAWA are very modest. The new criminal
sanctions are equally modest. Even with these improvements, we all
recognize that if passed, PAWA will not put the OSHAct on an even par
with the sanctions that negligent employers have already faced for
years under our environmental laws.
However, these updated penalties and criminal sanctions will begin
to give government inspectors and civil and criminal prosecutors the
essential tools they need to more effectively deter abusive employer
conduct, tools that their counterparts in many other federal agencies
already routinely use to enforce similar laws on environmental
protection. Indeed, Congress has increased the penalties under other
laws, while allowing OSHA's penalties to linger in their weakened
state. Honest, responsible employers will survive, and indeed even
thrive, with a safer, secure and more productive workforce if you give
OSHA the same powers. And until then, dishonest and irresponsible
employers will continue to injure and kill workers with virtual
impunity.
We respectfully call upon Congress to modernize and strengthen
OSHAct's penalties, as soon as possible. In this way, our nation can
better strive to deliver the promise the Congress made when it passed
OSHA 40 years ago: ``* * * to assure safe and healthful working
conditions for each working man and woman and * * * by providing an
effective enforcement program.''
I will be happy to answer any questions.
ENDNOTES
\1\ We will not attempt to repeat all the relevant testimony
offered at the other recent hearings that the Committee and the
Subcommittee have held on the issues covered by PAWA, including those
on March 12, April 23, June 18 and June 24, 2008, and April 28, April
30 and October 28, 2009.
\2\ US Bureau of Labor Statistics, Census of Fatal Occupational
Injuries.
\3\ US Bureau of Labor Statistics, Annual Survey of Occupational
Injuries and Illnesses.
\4\ HIDDEN TRAGEDY--Underreporting of Workplace Injuries and
Illnesses: A Report By the Majority Staff Of The Committee On Education
And Labor U.S. House Of Representatives; June 2008.
\5\ Enhancing OSHA's Records Audit Process Could Improve the
Accuracy of Worker Injury and Illness Data, US Government
Accountability Office, GAO 10-10, October 15, 2010.
\6\ Testimony of Ms. Margaret Seminario, House Committee on
Education and Labor, April 28, 2009, p. 13.
\7\ Data supplied by the Occupational Safety and Health
Administration, from its Integrated Management Information System.
\8\ OSHA Inspection # 311088033
\9\ Discounting Death: OSHA's Failure to Punish Safety Violations
That Kill Workers, Report of the Majority Staff of the Committee on
Health, Education, Labor and Pensions, U. S. Senate, April 29, 2008.
\10\ M. McPhee, Xcel, contractor fined $1 million in Georgetown
tunnel deaths,, Denver Post, March 24, 2008; http://www.denverpost.com/
search/ci--8679504
\11\ Indictment: United States v. Xcel Energy Corp and others, Case
1:09-cr-00389-WYD, District Court, Middle District of Colorado, Aug.
27, 2009.
\12\ EPA Civil Penalty Policy GM-21, 1984.
\13\ Interview of Ronald Tenpas, Frontline: A Dangerous Business
Revisted, Dec. 13, 2007; http://www.pbs.org/wgbh/pages/frontline/
mcwane/interviews/tenpas.html
\14\ Testimony of Ms. Margaret Seminario, House Committee on
Education and Labor, April 28, 2009, p. 9.
\15\ Testimony of Mr. David Uhlmann, House Committee on Education
and Labor, April 28, 2009, p. 2.
\16\ Ibid, p. 5.
\17\ Ibid, p. 12.
\18\ Testimony of Ms. Margaret Seminario, House Committee on
Education and Labor, April 28, 2009, p. 14-15.
\19\ Statement of Chairman George Miller, House Committee on
Education and Labor, Oct. 29, 2009: ``only 29 percent of Nevada's
citations were classified as ``serious.' Compare that to 44 percent for
other state plans and 77 percent for federal OSHA.''
______
Chairwoman Woolsey. Without objection.
Mr. Snare?
STATEMENT OF JONATHAN SNARE, PARTNER, MORGAN, LEWIS & BOCKIUS
LLP, ON BEHALF OF THE CHAMBER OF COMMERCE
Mr. Snare. Good morning, Chairman Woolsey, Ranking Member
McMorris Rodgers----
Chairwoman Woolsey. Your microphone is not on, sir.
Mr. Snare. I am sorry.
Chairwoman Woolsey. Okay.
Mr. Snare [continuing]. And members of the subcommittee.
I appreciate the opportunity to appear before you to
address a number of these very important issues raised by the
Protecting America Workers Act, and the changes under
consideration today.
I am testifying on behalf of the U.S. Chamber of Commerce.
At the outset, I would like to provide you, the
subcommittee, a brief overview of my background and experience,
to allow you to appreciate and understand the relevance of my
testimony, and my perspective on these very important issues.
As mentioned, I am a partner with Morgan Lewis Law Firm,
having joined the law firm last February 2009. And my practice
is involved in the area of labor and employment and,
specifically, workplace safety issues.
Prior to the time I joined Morgan Lewis, I had the
privilege of serving, for over 5 years, in several positions at
the U.S. Department of Labor. I served as the deputy assistant
secretary for OSHA from December 2004 through July 2006, as
well as served as the acting assistant secretary for OSHA for
most of that period from January 2005 through April 2006. I
then served as the deputy solicitor of labor from July 2006
through January 2009. And I also served as the acting solicitor
for most of 2007.
While serving in those positions, I believe I have an
understanding on the many different strategies and tools that
OSHA has used to implement its very important mission. I
believe the goals behind get Protecting America Workers Act are
laudable. This legislation is intended to enhance OSHA on its
mission to assure a safe and health workplace environment, and
reduce the number of injuries and fatalities. I do believe,
however, that the revisions to PAWA under consideration, as
well as the legislation itself, would have unintended
consequences, and may not achieve the intent behind the bill.
Penalties alone will not solve the problem. Remember--
penalties are imposed after an injury or a fatality. The
critical mission of OSHA is to assist employers to make sure
that injuries and fatalities never occur in the first place. It
is also important to note, as part of this discussion, the
Bureau of Labor Statistics--according to the Bureau of Labor
Statistics, workplace injuries and illnesses and fatalities
have declined over the last decade, and the most recent
available statistics for fiscal year 2008--injuries and
fatalities were at the lowest level ever recorded.
While even one workplace fatality is one too many, progress
has been made. At the core, PAWA can be described under the old
adage, ``Bad facts make bad law.'' This is an effort to change
the OSH Act within enforcement-only sanctions appears to be
driven by the conduct, as Mr. Frumin mentioned, by a few
outlier employers who fail in their workplace safety and health
obligations.
The proposed penalty increases and other sanctions will do
nothing to assist employers to understand their obligations for
workplace safety and health, such as the small-business owner
who is trying to understand how to comply with the applicable
requirements. How will increasing penalties help her design a
more effective workplace-safety program when she knows she is
unlikely to see an inspection unless there is an accident or a
fatality?
This employer is obviously better served with more outreach
and compliance-assistance materials than increased penalties.
Again, the goal here is compliance and prevention, not
sanction.
We have a few following concerns with the provisions of
PAWA and the revisions under consideration. The abatement of
hazards pending contests of citations--this proposal will
reduce and eliminate the ability of the employer to challenge a
citation through OSHRC by requiring immediate abatement.
Immediate abatement, as you have already heard in panel one, is
already available through the emergency-shutdown mechanism that
Mr. Fairfax described for you.
The signaled modification would substitute an employer's
ability to suspend abatement while contesting a citation, to
allow him to have the right to have his citation adjudicated by
substituting a higher burden of proof akin to securing a
temporary injunction. The civil-penalty changes under PAWA--
while some of the changes proposed for the failure to abate in
the ``other than serious'' are laudable in the proposed
modifications, the civil penalties themselves raise the issues
I already mentioned.
Penalties themselves do not solve the problem.
The criminal penalties in the sanctions under PAWA--the
change from ``willful'' to ``knowing''--would upend a decade of
OSHA law, introduce tremendous uncertainty, and furthering a
huge increase in contested cases.
The issue of adding a responsible corporate officer, as
originally in PAWA, as well as now the revision to officer or
director, will also result, in my judgment, in a witch hunt,
for officers and directors responsible. Those terms are
undefined, confusing; will cause a lot of problems on the job
site; will cause problems for safety director and other
employees trying to manage safety and health on the job site.
The whistleblower provisions are also problematic, as
mentioned in my written statement.
And, again, I think it is important for the subcommittee to
understand the unintended consequence and the impact of higher
penalties imposed under this act. And that will clog and delay
the judicial process under OSHRC, and result in significant
delays and adjudication for OSHA penalties, and will cause a
diminution and reduction in workplace safety and health.
I would ask the committee to enter my written statement
into the record. And I will be happy to address any questions
you may have.
Thank you, Madam Chairman.
[The statement of Mr. Snare follows:]
Prepared Statement of Jonathan L. Snare, Partner,
Morgan Lewis & Bockius LLP, on Behalf of the Chamber of Commerce
Good morning Chairwoman Woolsey, Ranking Member McMorris Rodgers
and Members of the Subcommittee. My name is Jonathan Snare. I am an
attorney and I am currently a partner with the DC office of Morgan
Lewis & Bockius LLP law firm. I appreciate the opportunity to appear
before you at this hearing to address a number of the important issues
raised by the Protecting America's Workers Act legislation (HR 2067; S
1580). I am testifying today on behalf of the U.S. Chamber of Commerce,
the world's largest business federation with over three million
businesses of all sizes, sectors, and regions, as well as state and
local chambers and industry associations. Importantly for the purposes
of this hearing, over 96 percent of the Chamber's members are small
businesses employing 100 or fewer employees. I am a member of the
Chamber's Labor Relations Committee and serve on the OSHA Subcommittee.
My testimony and comments are not intended to represent the views of
Morgan Lewis & Bockius LLP or any of our clients.
Background
At the outset, I would like to provide you and the Subcommittee
with a brief overview of my background and experience to allow you to
appreciate and understand the relevance of my testimony and my
perspective on these very important issues.
I have been a practicing attorney for close to twenty-five years,
and I am a graduate of the University of Virginia and Washington & Lee
University School of Law.
As I mentioned, I am a partner with Morgan Lewis & Bockius LLP,
having joined the firm in February 2009. My practice is focused on
advising clients in the labor and employment field, largely in areas of
workplace safety and health, as well as whistleblower matters,
regulatory issues, government prevailing wage requirements, wage and
hour/FLSA, and other related matters. The focus of my practice is to
provide advice and counsel to a wide variety of clients in the area of
workplace safety and health--ranging from assisting clients with
investigations from government agencies such as the Chemical Safety
Board, to representing clients in enforcement proceedings brought by
OSHA and its state plan state partners, as well as to assisting clients
with safety and health compliance issues, recordkeeping questions,
workplace audits, and the like. On this compliance side of the
practice, I have been working with my law firm colleagues (several of
whom have over 30 years of experience in this field) to advise clients
large and small with a variety of matters to assist them in complying
with all applicable OSHA workplace safety and health requirements.
Prior to the time I joined the Morgan Lewis law firm last year, I
had the privilege of serving for over five years in several positions
at the U.S. Department of Labor. Most relevant for the purposes of this
hearing, I served as the Deputy Assistant Secretary for the
Occupational Safety and Health Administration (OSHA) from December 2004
through July 2006, as well as serving as the Acting Assistant Secretary
for OSHA for most of that period, from January 2005 through April 2006.
I then served as the Deputy Solicitor of Labor from July 2006 through
January 2009 and I served as the Acting Solicitor of Labor for most of
2007. I also served as the Senior Advisor to the Solicitor in 2003 to
2004.
Having had the privilege of running two of the Department of
Labor's largest agencies, OSHA and the Solicitor's Office, I once had
the responsibility of overseeing OSHA's critically important mission of
assuring a safe and healthy workplace for every working American, and
of the Solicitor's Office crucial role of providing legal support to
OSHA to assist the agency in implementing the goals of its mission. In
so doing, I believe I developed an understanding and insight on the
many different strategies and tools that OSHA has available to
implement these important goals.
We share the common goals of the Protecting America's Workers Cct
I believe that the goals behind the Protecting America's Workers
Act are laudable--this legislation is intended to enhance OSHA in its
mission to assure a safe and healthy workplace environment and to
reduce the number of workplace injuries/illnesses and fatalities. I do
believe, however, that the revisions to PAWA under consideration today
as well as legislation itself may have unintended consequences and may
not achieve the intent behind this bill. Penalties alone will not solve
the problem--remember, penalties are imposed after the fact of an
injury or fatality. The critical mission of OSHA is to assist employers
to make sure these injuries and fatalities never occur in the first
place. To understand my concerns, I think it would be helpful for the
Subcommittee to hear about the recent activities of OSHA as well as its
record in achieving its mission.
Overview of OSHA's record over the last decade
During the last Administration, I believe that OSHA demonstrated
that its ``balanced approach'' of using enforcement, compliance
assistance and cooperative programs, and outreach and training to
respond to the challenge of workplace safety and health was successful
in its continuing mission of improving workplace safety and health.
On the enforcement side, OSHA endeavored to focus its resources on
those employers who demonstrated a complete disregard for their
obligations under the OSH Act and the many standards and regulations
promulgated there under. As part of that effort, OSHA conducted on
average approximately 38,000 inspections every year; focused the
agency's resources and enforcement on employers who had failed to value
the lives and safety/health of their employees; expanded the use of
procedures for the agency to seek intervention by a federal court of
appeals to take action against employers when necessary; increased the
number of referrals to the Department of Justice for possible criminal
prosecution from an average of 6 per year in the 1990s to approximately
12 per year; utilized the available tools of egregious citations when
necessary, and OSHA took steps to clarify through rulemaking the
application of the egregious policy to respond to a court decision
which had created confusion as the use of that policy; and issued a
number of significant citation penalties including the largest citation
penalty in OSHA's history up to that time.
For the vast majority of employers who understand the value of
their most precious resources--their employees--and who want to do the
right thing and comply with workplace safety and health requirements,
OSHA offered the assistance to enable them to better understand and
comply with their obligations. The agency did this through our expanded
compliance assistance programs including the expansion of the VPP
program which I believe had a significant positive impact on workplace
safety over the past decade. OSHA also continued with outreach efforts
and expanded training programs in many different and innovative ways to
provide employees, employee groups, community groups and employers
resources to better understand the safety requirements and to learn
better ways to improve safety on the jobsite. One of the initiatives of
which I am most proud were the efforts to focus on the challenge of
reaching the non-English speaking and immigrant workforce through a
variety of programs including projects designed to outreach to Hispanic
workers through an OSHA task force a well as working with a number of
governments and consulates from Mexico as well as Central America to
produce materials and guidance in Spanish.
The record on workplace injuries, illnesses and fatalities over the
past decade shows continued improvement. As has been reported by the
Bureau of Labor Statistics (BLS), workplace injuries and illnesses
declined throughout the decade and the most recent available
statistics, for FY 2008 are at the lowest levels ever recorded.
Nonfatal workplace injuries and illnesses among private industry
employers in 2008 occurred at a rate of 3.9 cases per 100 equivalent
full-time workers--a decline from 4.2 cases in 2007. Workplace
fatalities have likewise declined over the past decade, and the most
recent available statistics, show that fatalities are at the lowest
levels ever recorded. For FY 2008, 5,071 workplace fatalities were
recorded, down from a total of 5,657 fatal work injuries reported for
2007. While the 2008 results are preliminary, this figure represents
the smallest annual preliminary total since the Census of Fatal
Occupational Injuries (CFOI) program was first conducted in 1992. Based
on these preliminary counts, the rate of fatal injury for U.S. workers
in 2008 was 3.6 fatal work injuries per 100,000 full-time equivalent
(FTE) workers, down from the final rate of 4.0 in 2007 While even one
workplace fatality is one too many, and tragic to every family who
suffers such a loss (which I can attest to since my family lost a
member to a workplace accident), the facts are clear that OSHA has
achieved significant success in reducing these injuries and fatalities
throughout its history including these record low numbers of fatalities
and injuries in the last decade.
By every available factual and statistical measure, OSHA has been
successful in its mission. Something must have been working for these
results to have been achieved. In my judgment, the way to achieve these
types of results is for OSHA to use the wide variety of resources
available to assist employers who have the ultimate responsibility
under our system for workplace safety and health, which includes
motivating employers in some cases through enforcement or the risk of
enforcement, as well as offering outreach and compliance assistance to
employers to enable them to understand and comply with their
obligations. This balanced approach to workplace safety makes sense
particularly given the structure of the OSH Act and the reality of
agency funding, and the nature of OSHA's responsibilities for workplace
safety.
All in all, I am proud of the record of OSHA and the efforts of its
dedicated employees over the past decade. I believe these efforts
contributed to achieving the lowest number of workplace fatalities and
injuries ever recorded.
I understand that there are those who disagree, some vigorously,
with the approach of the last Administration. These types of debates
concerning the best way for OSHA to achieve its mission and the varying
combinations and emphasis of the available tools for OSHA given the
current funding structure--whether it be enforcement, regulatory
requirements, compliance assistance, cooperative programs, training and
who should be the beneficiary of training programs--have been around
since the passage of the OSH Act and inception of the agency, and will
continue in the future. I think these types of debates are healthy--
they show that stakeholders from all sides are looking for the best
approach to improving workplace safety.
OSHA's mission and structure, and employers' responsibility for
workplace safety and health
The OSH Act tasked OSHA with the mission to assure workplace safety
and health but it has always been the responsibility of the employers,
not OSHA itself, to ensure safety and health on the jobsite. OSHA has
never had the resources, even when the agency had its largest number of
employees, to inspect the 6 million worksites now within its
jurisdiction. When you take into account that federal OSHA conducts
approximately 38,000 inspections it would take the agency over 90 to
100 years to inspect every worksite. Clearly, enforcement alone will
never be able to reach every workplace or serve as an effective
deterrent. OSHA does not have the funds, and will never have the funds,
to hire the staff large enough to reach each worksite on a regular
basis through enforcement. The only way to leverage OSHA's resources to
reach the greatest number of worksites and have the most positive
impact on workplace safety and health is to use these other programs
like compliance assistance, outreach, and training.
Underlying OSHA's enforcement efforts is the employer's
responsibility to comply with all applicable workplace safety and
health obligations. This system, then, depends on employers taking it
upon themselves to implement the necessary steps and programs. The goal
here is to prevent workplace fatalities as well as injuries and
illnesses from happening in the first place. Enforcement and penalties
do not prevent workplace fatalities and injuries; they are imposed
after workplace fatalities and injuries have occurred. Simply put, the
best approach to workplace safety and health under this existing system
and structure is a proactive approach that reaches employers before
there is a problem and provides them with the support and guidance they
need to protect their employees.
My experience in government service, as well as in private law
practice, is that most employers want to do the right thing in terms of
workplace safety and health, as most employers care about their most
valuable resource, their employees. For most employers, workplace
safety and health makes sense for business and economic reasons, as
those with safe worksites are often the most productive and efficient,
with the lowest overhead and workers' compensation rates, and it makes
sense because it is the right thing to do.
OSHA already has sufficient available enforcement tools and penalties
to impose sanctions against employers where the circumstances
warrant
I want to make clear that the U.S. Chamber of Commerce does not
condone those employers who have intentionally flouted their
obligations to protect their employees and fail to comply with their
workplace safety and health obligations. Those employers--a small
minority of employers--deserve the full range of enforcement sanctions
by OSHA depending on the particular facts of the violation in question.
There are already sufficient penalties and enforcement tools to
take action against those employers. Under the OSH Act, there are
currently five general categories of civil penalties available to OSHA
to impose on employers: Willful; Repeat; Failure to Abate; Serious; and
Other than Serious. Under the current structure, penalties for willful
violations can be imposed up to $70,000 for each willful violation of
an OSHA standard or the General Duty Clause. While not defined in the
statute, a willful violation has come to mean one where the employer is
established to have been aware of and intentionally violated these
requirements or acted with reckless disregard or plain indifference to
workplace safety. OSHA can also impose a civil penalty of up to $70,000
for each repeat violation which is a violation of the same or
substantially similar requirement by the same employer at the same or
different facility. Additionally, OSHA has the ability to impose
instance by instance penalties (the egregious policy) under certain
circumstances so that the agency could impose willful violations for
each instance of conduct, for example it could impose a willful penalty
for each employee affected. In other words, the agency already has the
prosecutorial authority to impose penalties in large amounts (sometimes
in the multiple of millions of dollars) in these cases, as we have
seen.
For those violations which are serious, the agency can impose a
civil penalty of $7000. The agency can also impose a civil penalty of
$7000 per day for a failure to abate violation for each day beyond the
required abatement date that the particular condition or hazard remains
unabated.
As to potential and available criminal sanctions, the OSH Act
provides that an employer can be subject to a criminal fine of up to
$250,000 and six months in jail for the first willful violation
resulting in the death of an employee, and a criminal fine of up to
$500,000 and twelve months in jail for the second willful violation
resulting in an employee fatality. And as I already noted in my
testimony, OSHA did not hesitate during the previous administration to
refer cases that met this criteria to the Department of Justice for
review and consideration for criminal prosecution.
Problems with the Protecting America's Workers Act and the revisions
under consideration
The proposed changes to the OSH Act by the PAWA legislation and the
revisions to PAWA under discussion at today's hearing will simply not
achieve the desired results in terms of improving workplace safety and
health. Further, many provisions of this legislation and these
revisions will result in adverse consequences to OSHA in terms of the
administration of its enforcement, and to the Solicitor's Office which
is charged with the responsibility of litigating contested cases. The
revisions to PAWA under consideration at today's hearing (I reviewed
the summary available late last week and the legislative language which
I received only yesterday) will also not improve this bill's ability to
improve workplace safety. I have not had the chance to conduct a
thorough review of the legislative language under consideration, and I
would like to reserve the right to offer the Subcommittee any further
comments after I have had the full opportunity to conduct a more
careful review of that language.
In general, the proposals to increase civil and criminal penalties;
dramatically revise the whistleblower structure under the OSH Act;
require immediate abatement; and expand victim's rights, will cause
delays in the ultimate resolution of contested enforcement cases, and
unduly strain the resources of OSHA and the Solicitor's Office. Data on
MSHA and the increase in penalties over the last few years, and other
increases in sanctions to employers, which resulted in huge increases
in contested cases, delays in resolving cases, as well as challenging
burdens on the Solicitor's Office and which were the subject of a
hearing in this committee earlier this year demonstrated the unintended
and negative consequences of these approaches.
At its core, PAWA can be described under the old adage ``bad facts
make bad law.'' This effort to change the OSH Act with enforcement-only
sanctions appears to be driven by the conduct of the few outlier
employers who fail in their workplace safety and health obligations.
These proposed penalty increases and other sanctions will do nothing to
assist employers to understand their obligations for workplace safety
and health, such as the small business owner who is trying to
understand how to comply with applicable requirements. How will
increasing penalties help her design a more effective workplace safety
program when she knows she is unlikely to see an inspection unless
there is an accident or fatality? This employer is obviously better
served with more outreach and compliance assistance materials than
increased penalties. Again, the goal here is compliance and prevention,
not sanction. This approach benefits employers but more importantly it
benefits employees.
Specifically, we have the following concerns with these provisions
of PAWA and the revisions under consideration at today's hearing:
Abatements of hazards pending contests of citations: This provision
will reduce or eliminate the ability of an employer to challenge a
citation through the OSHRC administrative process by requiring
immediate abatement. Immediate abatement is already available through
the emergency shutdown mechanism when OSHA identifies an imminent
hazard. This provision will also eliminate one source of leverage that
OSHA and the Solicitor's Office can use to resolve cases by settling
appropriate cases with the requirement of immediate abatement imposed.
The signaled modification to this mandatory abatement provision
which would substitute an employer's ability to suspend abatement while
contesting the citation with a higher burden of proof akin to what is
required for securing a temporary injunction is simply unjustified and
an outrageous trampling of due process rights. Abatement is more than
just protecting against a hazard; it is part of accepting
responsibility for the violation. Mandating abatement before allowing
the employer to exhaust their adjudicative process would be like asking
a criminal or civil defendant to pay a fine or serve a sentence before
the trial is held.
In addition, this provision will eliminate OSHA and the Solicitor's
Office prosecutorial discretion in handling these contested cases. This
provision strikes me as unduly punitive and makes it much more
difficult for employers, particularly smaller employers who lack
resources, to challenge certain citations which they may believe in
good faith are incorrect or improperly imposed by the agency in the
first place. By making it harder to settle cases this will increase the
rate of contest cases.
Expanding Victims' Rights: The signaled modification to this
provision of PAWA would allow an employee who has sustained a work-
related injury or a family member if that employee was killed or unable
to exercise their rights, to make a statement before an Administrative
Law Judge at OSHRC for those cases which have been contested. Under
PAWA these employees or their family members are permitted to make a
presentation to the meet with the Secretary or the designated
representative and to be kept informed of the investigation and any
citations that may be issued. Further, PAWA also provides these
employees, or their representatives, the opportunity to learn of any
modifications to the citations or settlement negotiations, and to
object to such modifications or settlements. 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.
Civil Penalties: The signaled change to PAWA's expansion of civil
penalties, the elimination of the $50,000 penalty for fatalities under
``other than serious'' violations is appropriate, not because it
reduces the penalty amount, but because of the lower level of violation
involved. Similarly the signaled elimination of the penalty for failure
to abate sounds sensible.
However, the remaining increases in civil penalties under PAWA
raise the issues already mentioned about the impact of increasing
penalties, the unintended consequences, and the flaw in thinking that
merely increasing penalties will result in improved workplace safety.
Criminal Penalties: The signaled modifications to PAWA's increase
in criminal penalties would change the level of intent necessary for
criminal penalties from the current ``willful'' to ``knowing.'' Such a
change would upend decades of OSHA law--dating to the passage of the
act in 1970 and introduce tremendous uncertainty, further guaranteeing
substantial increases in contested cases. While the ``knowing''
standard is used in EPA law, it has not been the standard for OSHA
criminal culpability. As there is no further definition in the bill of
this standard, employers (and OSHA inspectors) will be left to guess
what this means and when it should apply. This is a prescription for
utter confusion and legal challenges that will be costly to both the
employer and the agency.
Changing ``any responsible corporate officer'' to ``an officer or
director'' will result in a witch hunt to hold officers or directors
responsible. Even the original ``any responsible corporate officer''
term in PAWA would be problematic, but expanding this to any officer or
director will make corporate personnel unduly subject to prosecution
when they generally have no involvement in day to day operations. All
of these definitions are vague and ambiguous as to who would fall
within these categories. These definitions are also vague as to how
they would be applied in the legal process; do they apply only to the
corporate entity or other legal entities such as partnerships? Does
this mean that any limited partner or director would now be subject to
potential criminal prosecution? None of these changes will improve
workplace safety and health, and actually, this new requirement, if
adopted, could result in adverse impact as corporate employees would
now fear that any decision they could make on the jobsite could subject
them to prosecution. Imagine that a safety director or E, H & S
employee--they would be faced with the reality that every one of their
decisions would be micromanaged, potentially by employees who have
little or no expertise in safety and health. This would result in a
chilling effect on these employees in trying to simply do their job.
This could create uncertainty on the jobsite with a net reduction of
workplace safety and health.
New whistleblower requirements: The signaled changes to PAWA's
whistleblower expansions are described as ``align[ing] OSHA
whistleblower provisions with other modern whistleblower laws'' which
is ironic since most whistleblower provisions in other laws are modeled
after OSHA's provision, and there is no evidence that expansion of
whistleblower protections is appropriate. Although I have not had the
opportunity to give these revisions under consideration a thorough
review, as I just received the legislative language yesterday, the
original PAWA language expanding whistleblower protections raises some
difficulties.
The initial language in PAWA concerning the underlying
justification for whistleblower status--that the employee has a
``reasonable apprehension'' that a particular job duty would result in
a serious injury--and protect that employee who then refuses to perform
that job function is itself a significant departure from other
whistleblower statutes and would potentially create significant
confusion and disruption in the workplace. While we understand the need
for employees to avoid putting themselves at risk, we are concerned by
the potential for disruption and the absence of any objective criteria
governing this decision. This language is simply too vague and
ambiguous to apply in a practical workplace context.
We also note that the new whistleblower provisions being discussed
today allow employees to recover, against the employer, their
attorneys' fees and costs if they are successful in getting an order
for relief from either the Secretary or a court. Similarly, allowing
small businesses that successfully defend themselves against an OSHA
citation to recover their attorneys' fees has long been one of our key
goals. Bills to permit this have passed the House with bipartisan
support in previous Congresses. While inclusion of this idea would not
cure the problems we see with these whistleblower provisions, we
believe allowing small businesses the same opportunity as employees to
recover attorney's fees is only fair.
Adverse impact of OSHA contested caseloads and adverse impact on
administration of OSHA litigation: ``justice delayed is justice
denied''
The net result of the proposed increase in penalties and sanctions
is that employers will contest cases at a higher rate, which will
impose an adverse impact on OSHA and the Solicitor's Office resources
and will greatly delay the administrative litigation process and delay
the resolution of OSHA contested cases.
We do not need to look any further than the recent example of MSHA
to see the difficulties and challenges. Indeed, the full Education and
Labor held a hearing on this subject on February 23. In the case of
MSHA, the increased penalties under the Miner Act, combined with the
aggressive use of existing tools, such as the Pattern of Violation
mechanism, resulted in a dramatic increase in contest cases. For
example, the percentage of contest MSHA violations went from just over
5 percent in 2005 (the year prior to the Miner Act), jumping to over 20
percent by 2007, and over 25 percent in 2008 and 2009.
From personal experience I can attest to the challenges these
increases posed for the Solicitor's Office and MSHA. During this same
period, I was the Acting Solicitor and Deputy Solicitor and we devoted
significant time and effort to manage the impact of these higher
contest rates. We had to shift resources within the Solicitor's Office,
and take other often difficult steps, to assist with this dramatic
increase in the workload. Due to the risk of the Pattern of Violations
and the significantly higher penalties, it was much more difficult to
settle cases, further adding to the problem. The MSHRC also faced
problems in that they simply did not have enough ALJs to hear all of
the cases. Funding increases partially solved this problem but it still
remains a huge problem and the resolution of many cases has been
delayed for months, if not years. The current backlog of cases is
16,000 and the caseload docket increased from 2,700 cases in FY 2006 to
more than 14,000 cases in FY 2009.
I think it is important for this Subcommittee to carefully consider
the practical real world impact of any of these proposed changes to the
penalty structure which will have a significant impact on the
administration of the OSHA contested caseload.
Conclusion
The Protecting America's Workers Act would radically restructure
the OSHA civil and criminal penalty regime, as well as make other
significant changes to how OSHA proceeds with its enforcement
functions. Unfortunately, nothing in this bill, nor the revisions under
consideration today, will do anything to actually help employers, and
most importantly small businesses, improve safety in their workplaces.
The goal is to prevent workplace fatalities and injuries from
occurring, not merely punishing the employer after they occur. As
recent data makes clear, the best way to achieve continuous
improvements in workplace safety and health is to utilize a proactive
approach with enforcement when appropriate, and offer outreach,
training, and compliance assistance to that vast majority of employers
who want to do the right thing and comply with their workplace safety
and health obligations.
Thank you for this opportunity to speak to you on these important
issues, and I would now be happy to respond to any questions that you
may have.
______
Chairwoman Woolsey. Without objection.
Mr. Frumin, in the BP situation--now, contractors are
employers, because every size contractor--I mean, every size
employer is covered by the OSH laws. So why would the
contractor send their employee into an unsafe situation,
without being held liable for that?
I mean, how do we bridge that without it getting--``You
said,'' ``I said,'' ``I didn't know''--I mean, isn't the
contractor supposed to know whether it is safe or not when they
send their employer to work?
Mr. Frumin. Well----
Chairwoman Woolsey. Employee to work. I am sorry.
Mr. Frumin. You know, contractors can be, you know, two-
person operations. They can be larger companies. They should
know. One would hope they would know. What is terrifying about
the case of the Xcel Energy plant in Colorado was that, here,
you have an extremely sophisticated company hiring a contractor
with repeated instances of very severe violations in other
states, including in California, on the Bay Bridge. Workers
died. And----
Chairwoman Woolsey. Excuse me. The contractor had the
repeated----
Mr. Frumin. Yes. Yes, the----
Chairwoman Woolsey [continuing]. Violation?
Mr. Frumin. And Xcel hires them to do a highly hazardous
job.
A high-school student could get on OSHA's Website and find
those violations. This was years before this--this incident in
Colorado. And then, to make matters worse, Xcel discusses with
them how to protect not only the contractor employees, but
Xcel's employees, and then leaves it all up to the contractor--
doesn't--doesn't impose Xcel's own supervision that might have
potentially prevented this outrage.
We can't count on contractors being, in fact, the
knowledgeable party. And, instead, what we are seeing in this
industry and others is big companies----
Chairwoman Woolsey. All right, so what would you do to fix
this disparity? Do you have some recommendations to us? What we
are doing in PAWA--will that help?
Mr. Frumin. Well, it will certainly help by forcing the
contractors themselves to take their own future security more
seriously, because they, themselves, could end up in--facing
criminal provisions. And with the additional severe violations
that we see here for obstruction of justice and so forth, for
lying to inspectors, we would make it much more difficult for
companies like Xcel to collaborate in the way they did in this
terrible incident.
What it will not do, unfortunately, is impose upon Xcel the
same liability that they would have to--if it were a
construction site. We have multi-employer liability in
construction. So it is one more example of how modest--how very
modest this legislation is. There are many loopholes that still
remain. We hope that, if it passes, it will force employers to
behave differently. But it is still a very modest piece of
legislation.
Chairwoman Woolsey. Thank you.
Mr. Snare, when you talked about the--that there are
sufficient penalties already available for enforcement tools--
well, since it appears, with the Water--the Clean Water Act and
the Clean Air Act--that we must certainly prefer and appreciate
our fish and birds and--a lot more than we do our workers--
don't you think we should have kept up with inflation at least,
from--since the last time we raised the penalties?
Mr. Snare. Well, again, as your--I think your question,
earlier, to Dr. Michaels--I would echo what he indicated in the
sense that it is hard--I don't know what the intent of Congress
was under those particular environmental statutes. I understand
what they say.
Again, on the workplace safety and health, it is my
position, and the position of the Chamber, that the penalties
are already sufficient. And if you look at some of the examples
in my written statement about the tools that OSHA already has--
for example, the Egregious Policy, where the agency can issue
an instance-by-instance violation on very, you know, particular
circumstances. They can have penalties in the millions of
dollars. There were a number of cases that I reviewed and
approved during my tenure at the Department of Labor that were
multi-million-dollar citations, using that particular policy to
impose against particular employers.
But the general proposition, which we all are here for, is
to improve workplace safety and health, reduce injury and
illnesses across every job site in America. And in my judgment
and the judgment and the judgment of the Chamber of Commerce,
it is better served with a balanced approach--compliance
programs, outreach to allow a small-business owner to
understand how to comply within OSHA standards, which may be
unclear.
Chairwoman Woolsey. Well, my time is just about up.
But in 2009, the average OSHA penalty for a serious
violation--the average--was $970. It must have taken an awful
lot of those suits to add up to millions and millions of
dollars. I don't see how that all comes together.
I would like to yield to Ranking Member McMorris Rodgers.
Mrs. McMorris Rodgers. Thank you, Madam Chairwoman, and I
thank you for holding this hearing today. And we do have a
shared goal of ensuring that our workplace is safe.
I think that we have to be careful about picking one or two
examples, and then passing sweeping legislation that could,
potentially, add more burdensome and complicated rules on
employers that really are trying--and it is their goal to
have--provide a safe workplace.
Mr. Snare, I wanted to ask: What do you believe are the
public-policy implications of changing the standard of criminal
penalties from ``willful'' to ``knowing''?
Mr. Snare. Again, as I mentioned briefly in my opening
remarks, and elaborated more in my written statement, it is--
you are changing and upending an entire 40-year period of law
that has developed under the OSHA standard under ``willful.''
In my judgment, it is going to create significant confusion in
litigation and adjudication of cases.
And you can see the difficulties by the example of MSHA
over the last few years, and the increase of penalties, and
what has that done to the entire litigation process, and the
delays that everyone has suffered by delays in resolution of
cases. That situation, as you have described--changing that
provision from ``willful'' to ``knowing'' would cause a lot of
those same problems and difficulties, and would create problems
for the entire system, in my judgment.
Mrs. McMorris Rodgers. Thank you.
You know, Madam Chairwoman, I just think we have to be very
careful about not creating an adversarial relationship within
the workplace. And you look over the last 10 years, and we
have--and we have seen some good cooperation take place--
providing more assistance to both employers and employees--
particularly small businesses. And, during that same period,
there has been a decline in workplace-fatality rates, as well
as injury and illness rates.
Such, Mr. Snare, I would like to ask what you think about--
I am concerned--about moving back to more of a ``Got you''
mentality on the part of OSHA, rather than continuing some of
these positive trends?
Mr. Snare. I would echo your concern, Ranking Member
McMorris Rodgers.
I mean, the reality is, over the last decade, if you look
at the statistics and look at the numbers, workplace injuries
and illnesses and fatalities have been at record lows. They
have been declining for most of the decade. And you have got to
look at--those are the facts. And what was the agency doing
during most of that time period? Using a mixture and a balanced
approach--enforcement where necessary.
Against the companies in some of the examples that Mr.
Frumin and others have mentioned, enforcement is, obviously,
necessary. But at the same time, for--most employers want to do
the right thing. You want to provide them with the materials,
the outreach, the compliance, to allow them to comply and
understand, because there are 6 million job sites. And the
agency is never going to be able to reach all of them. It is
more effective to leverage those resources and do it with the
way of a balanced approach, which--all the things I described--
that leads to safer job sites in America.
Mrs. McMorris Rodgers. So what should be the measurement
for improvement in workplace safety and health? An increase in
the level of written violations? More money collected from
penalties or a decrease in the number of fatalities and
injuries?
Mr. Snare. I think it is the latter. It is the reduction in
injuries and fatalities. Penalties, as I mentioned in my
opening statement, are imposed after the fact. The goal here is
to be proactive and prevent injuries and illnesses from
occurring in the first place.
Mrs. McMorris Rodgers. Does OSHA already have the power to
shut down a company in imminent danger or that is in an
imminent-danger situation, and force abatement?
Mr. Snare. Yes, they do. And you heard some testimony or--
actually, you were not here, Ranking Member. I am sorry.
But Richard Fairfax, the director of enforcement at OSHA
talked about the provision. It is under Section 13 of the OSH
Act. And it does provide for an imminent shutdown of an
employer's facility in the event of an imminent danger. And
there is procedures by which you post a notice, ask the
employer to shut down. If not, you have the right to go to
court.
We had several of those situations occur when I was in the
Labor Department. And we took action accordingly, under the
existing provisions in the OSH Act to effectuate a shutdown and
an abatement.
Mrs. McMorris Rodgers. What do you believe Congress could
do to clarify OSHA's standards, and help employers comply with
workplace regulations?
Mr. Snare. Again, I think, generally speaking, the system
is working. I think it is important for the agency to make sure
it provides the resources available for employers, to allow
them to understand and comply, and to work through--in
improving workplace safety and health.
Most employers want to do the right thing. A lot of them
already are doing the right thing. And to those small-business
owners, it is incumbent on the agency to help them learn to do
the right thing, prevent those injuries and illnesses from
occurring.
But, again, when there is an employer in certain situations
who has a disregard for their obligations, that is when
enforcement is necessary. And there are already tools, in my
judgment, to achieve that.
Mrs. McMorris Rodgers. Thank you.
Chairwoman Woolsey. Congressman Payne?
Mr. Payne. Thank you very much.
Mr. Snare, you mentioned that enforcement, in your
opinion--enforcement and penalties did not prevent workplace
fatalities and injuries. They are imposed after fatalities and
injuries have occurred. But isn't it the case that OSHA levies
penalties during complaint and programmed inspections, and that
these actions help prevent accidents? Isn't that the reason
that OSHA leveled a $87 million penalty against BP in Texas
City--in order to prevent future explosions?
I mean, you say it is totally unrelated--it is all after-
the-fact; therefore, it can't have much worth. But, of course,
it can't do anything about what happened. But what about the
future? You feel it has no impact?
Mr. Snare. I think, Congressman Payne, what I mentioned is
that the issue of penalties being imposed after the fact--I am
talking about that generally. Under OSHA enforcement, there are
a variety of ways the agency can enforce--under programmed
inspections, using the site-specific targeting program, as well
as coming in for a complaint or an imminent danger, or an
incident like what happened in a refinery explosion or BP, or
whatever example you can cite.
The agency is coming in and handling enforcement. I think
my point is, generally, if penalties are imposed after the
fact--they are not proactive. They do nothing to improve
workplace safety and health from a general standpoint. But yet,
when there is an employer who has violated their obligations
under the OSH Act, and under the applicable standards, it is
appropriate. I am not saying it is not. I am saying it is
appropriate for the agency to come in and enforce. And there
are sufficient tools under the act now for them to do so.
And, again, when I was--during my tenure at the Labor
Department, we had a very strong enforcement program. And when
there were employers who had violated their obligations, we
took aggressive steps where necessary--and where the facts and
circumstances warranted it--against those employers.
Mr. Payne. What is your opinion on that, Mr. Frumin?
Mr. Frumin. Thank you, Mr. Payne.
Well, I am a little shocked to hear Mr. Snare's description
of the act, because it is really counter to the reality. And,
after all, he was there, so he must know the reality.
The reality is that the vast majority of instances in which
OSHA imposes a penalty is not in reaction to injuries or
fatalities, but because a compliance officer, for one reason or
another, is in a workplace, finds violations--and thank
goodness the Congress required first-instance penalties--
imposes a penalty.
If we were only imposing penalties after fatalities, I
think the math would require us to have four of five times
number of fatalities than we have now. I mean, it is
nonsensical what he is saying.
So that is simply a misstatement. And the vast number of
times that OSHA imposes penalties, and the vast majority of the
penalties that OSHA imposes are not in response to injuries and
fatalities.
And the other thing I would quickly add is that one of the
things that--one of the improvements in OSHA's enforcement
program was in collaboration with the Justice Department, in
recognition of--as the Justice Department pointed out today--in
recognition of the severe weaknesses in the OSH Act. And, of
course, that was during Mr. Snare's term.
Mr. Payne. As a matter of fact, Mr. Snare, I was looking
at--as you cited in your opening remarks--the fact that you
were with the Department of Labor, and even the solicitor
general, which, really, is the important issue of bringing
cases before.
And your testimony--you state that there is no evidence
that expanding whistle-blowing protection is appropriate.
According to OSHA data, however, only 6.7 percent of all
meritorious whistleblower claims under OSHA are ever prosecuted
by the solicitor. And some 60 percent are simply discarded,
leaving workers with no recourse under the law.
To me, you know, I mean, in all due respect, this is sort
of disgraceful. And, as the former solicitor for labor, it
seems like it should be a source of embarrassment, to be
honest.
And maybe you could explain why giving workers a chance to
have their anti-discrimination claims heard before an
administrative law judge is unwarranted. Isn't giving someone--
as an attorney--someone due process--the American way? And I do
recall, even at the beginning of the 2000 administration, I
guess, of President Bush, there was a move to actually change
OSHA, where it was being proposed that OSHA inspectors be paid
by the company, and that the results would not be made public--
that it would only be given to the company, and they should,
therefore, work for it.
I recall, during the time, I guess, that you served--that
there was, to me, sort of an assault on occupational safety. So
I just wondered if maybe you can clarify your record as
solicitor general, and your work with the Department of Labor
at that time.
I mean, those were the days when we saw the move to do away
with overtime. We had this whole business of flex time, where
you work overtime, but then you would give time at some other
period. And, therefore, overtime was not work. It seemed to me
that that was really an assault on workers' rights. Maybe you
can----
Mr. Snare. I would be happy to, Congressman Payne.
As to your statistic about the whistleblowers getting to
the ALJ--I mean the one thing you need to--everyone needs to
understand, in the committee--there are a number of variety of
whistleblower statutes--I think it may be up to 14 now--that
OSHA investigates. And the procedures under those--each of
those statutes--is different in some--in a number of cases.
As a first step, OSHA will conduct an investigation and
determine whether there is any merit to the complaint. And in a
certain percentage--and it varies by statute--they will find a
no-merit finding and issue a letter accordingly. And, then,
there are a variety of other steps by which the complainant--
and if there is a merit finding, then they go on. The case can,
in some cases--goes to a contested-case proceeding--and the
complainant is either represented by private counsel or, in
some cases, the solicitor's office.
And then the process will continue. A lot of these cases
will settle along the way. So the 6 percent figure you are
citing--it, frankly, may not be completely clear as to the
number of whistleblowers that, ultimately, are getting the
right to have the case adjudicated. A lot of them are settling
the cases in advance; or, separately, OSHA has issued a no-
merit finding based on OSHA, and the career officials and
employees of OSHA that are conducting the investigation are
finding that there is no merit to that particular complaint.
The proposal that you mentioned about the investigators
paid by private employers--I am not familiar with that at all.
I have no understanding of whether that was--what proposal that
was, or who offered it.
And as to the other issues you mentioned, including
overtime--as I mentioned in my written statement, I am proud of
the record we had of the department at OSHA. And if you look at
the overtime statistics, frankly, there is an increase in
employees getting overtime under the reforms in 2004.
Chairwoman Woolsey. Okay. Thank you.
I have two questions for Mr. Frumin--or two subjects I
would like you to comment on.
One, I would like to hear your perspective on ``knowing''
versus ``willful,'' and I would like to hear your perspective
regarding ``adversarial'' versus ``safe,'' or ``adversarial''
versus ``leveling the playing field'' for the--most of the
employers who are good at--employers--versus those who would
consider fines--especially these low fines--as a cost of doing
business.
Mr. Frumin. Thank you, Ms. Woolsey.
With regard to the question of ``knowing'' versus
``willful,'' I would defer to the Justice Department's
testimony about the importance of adopting the ``knowing''
definition. But a commonsense understanding tells us that if a
prosecutor has to prove that you were actually--that you knew
that you were actually violating the law--that requires a much
higher degree of proof than simply proving that you were aware
of the dangerous conditions themselves.
And if it is good enough for the Justice Department and
good enough for the Supreme Court, and it is widely used in
every other statute--or comparable statutes--then, I think, Mr.
Snare's concern about introducing confusion is actually quite
misplaced.
What is confusing is when prosecutors are handed a standard
of proof, like ``willful,'' now--and, frankly, they have no
experience with it--and it makes it quite difficult for them.
So I think we need to move to clarity.
And then on a--quickly, on the other point--I am sorry. I
have forgotten what it was.
Chairwoman Woolsey. ``Adversarial'' versus ``leveling the
playing''----
Mr. Frumin. Oh, yes.
Listen, there are plenty of examples of employers and their
employees getting along, and working well on safety. And we
could provide examples of those for the record. But there is no
substitute for a strict enforcement program. And that is true
not only with worker safety--and with environmental safety and
so forth.
We need to have the incentives and deterrent built into
this law so that what happened in the Cintas Company never
happens again--when an employer knows about the problem, knows
where it is, because it is its own equipment, and fails to do
anything about it. And if we allow companies to think that they
can just get away with it, because there is no strict
enforcement. You know what? Too many of them will, and will
continue with, you know, horrendous conditions that we see
erupting in different workplaces. Thank you.
Chairwoman Woolsey. Okay. Thank you.
Congressman Payne?
Mr. Payne. Yes.
Mr. Snare, in your testimony, you stated that, in your
opinion, eliminating the loophole in OSHA which allows
employers to postpone abatement of serious violations pending
litigation of their case is unjustified and outrageously
tampering of due-process right. This appears to be contradicted
by the provisions of the Mine Act. Are you familiar with that?
Mr. Snare. Yes, I am, generally, Congressman Payne.
I mean, again----
Mr. Payne. Yes, do you feel that--you know, that it is
contradictory?
Mr. Snare. Again, what I would say in response to the
question is the position that I outlined. Changing the OSH Act
to require immediate abatement--as I mentioned in my written
statement--it causes employers concerns.
It is an adverse impact on their due-process rights. Again,
you have got to look at--the OSH Act covers a wide range of
industries, with a wide range of procedures and processes. Some
of them involve performance-oriented standards, like process
safety management, which are very different from the
application of MSHA and the Mine Act, which have much more
limited set of circumstances.
And the employer, under the OSH Act, has the right to
adjudicate and contest a citation if they believe in their own
honest judgment that the agency has improperly issued a
citation. And this gives them the right to do so without having
to abate a hazard. It is like asking them to admit and confess
to a crime before they have even had their rights adjudicated.
Now, again, in certain circumstances where there is an
imminent danger or a problem on the job site, there already is
a mechanism under Section 13 of the OSH Act to come in and--for
the agency to come in and put a shutdown order because there is
imminent danger. And that would reduce the danger to employees.
You heard Mr. Fairfax talk about that. We did it several
times when I was at the agency. I had a number of discussions
with Mr. Fairfax about it at the time.
So there already is a power and authority to do that under
the OSH Act, currently.
Mr. Payne. Mr. Frumin? Yes?
Mr. Frumin. Mr. Payne, if I might, I think there is a bit
of bait-and-switch going on here. Mr. Snare is equating the
administrative-law provisions of OSHA enforcement with a
criminal proceeding. And it--it is simply not appropriate to do
that.
To say that an employer who has been cited by OSHA for
violating a standard in a civil proceeding, where OSHA feels
they have the facts--these are serious violations--they could
hurt someone--could even kill someone--to say that, for that
employer to have to fix that while they are challenging the
penalty is like ``accepting a sentence in a criminal
proceeding''--I mean, this is completely inappropriate.
The fact is that workers continue to be exposed after OSHA
inspectors go on-site, develop a case, run it by their
supervisors. The overwhelming number of OSHA violations every
single year, whether employers contest them or not, end up
being--staying on the books. And to put this on its head and
say--as if employers have--you know, are--by and large, they
walk off scot-free--OSHA gets it wrong. This is simply untrue.
OSHA inspectors are professionals. Most of the overwhelming
number of violations stay on the books--even the ones that
employers challenge. And workers are the ones who are paying
the price by continuing to be exposed because of this loophole
in the abatement process.
Mr. Payne. Thank you very much.
Mr. Snare, during the time of the two tragic mine accidents
in--I think it was 2005 and 2006--were you with the department
of--what was your position then?
Mr. Snare. You are referring to--there were three tragedies
in early 2006; one starting on January 2nd at Sago Mine. And
there was Americoma and Darby, I believe, throughout the spring
of 2006. And, then, there was a subsequent tragedy out in Utah,
in 2007, at Crandall Canyon. During the early 2006 timeframe, I
was the head of OSHA. And, then, starting the summer of 2006, I
was the deputy solicitor. And in 2007, I was actually the
solicitor, and was involved in a number of those matters and
investigations.
Mr. Payne. Well, since that time, as you know, we have
passed legislation that, in my opinion--the things that we had
to--you know, people say, ``Government is best which governs
least.'' But when those in charge tend not to try to work on
behalf of the worker--some of the things that we imposed with
the Miner Act seemed like they were things that should have
been already procedures in the mines.
And do you think that it--we were unjust by coming down
hard on the mine owners--the mine industry, when we came up
with the new regulations?
Mr. Snare. I am not sure--I guess, for your general
proposition, it is hard for me to comment on that. I don't
necessarily think it was unjust. The Miner Act was passed in
the judgment of Congress, and signed into law, by the
president. And, again, there was strong enforcement in MSHA, I
believe, before those accidents occurred. And there was
certainly strong enforcement at MSHA after those accidents
occurred.
And there were--even in the year or two prior to those
three accidents, mine fatalities were, I believe, at their
lowest level ever--either in 2004 or 2005. So, again, things
were working. There were accidents. The Congress, in their
judgment, passed an act, and the president signed it into law,
and then we enforced it. And, there were also a number of
things that were going on at MSHA during the last
administration, including utilizing a 30-year-old provision
under ``pattern of violation'' that, again, was strong
enforcement. The record is clear under the facts. The agency
had a strong enforcement program at the time.
Mr. Payne. My time has expired.
Chairwoman Woolsey. For concluding remarks, Ranking Member
McMorris Rodgers.
Mrs. McMorris Rodgers. Thank you, Madam Chairwoman.
You know, from a committee standpoint, there is no greater
asset than an employee. And we should all be committed to
ensuring that our employees are working in the safest
environment possible. The statistics reveal that the workplace
safety is improving. The fatality rate has dropped 14% since
2001. And injury and illnesses has steadily dropped 21% over
the same timeframe.
It seems a cooperative approach is the best approach. And I
speak from a Washington state perspective where, by and large,
we have taken a more collaborative approach. And it has has
resulted in an effective relationship between our state plans
administered through labor and industries, the employers, and
labor.
As we have heard here today, I think we have to be careful
not to create a hostile environment between OSHA and employers,
which doesn't make a safer workplace. Instead, let us foster an
atmosphere that ensures a proactive approach that makes
employers welcome OSHA and the agency's experience to improve
safety and health.
If we decide to legislate in this area, I hope that that
will be taken into consideration.
At this time, I would also like to introduce the following
statements for the record--one from Coalition for Workplace
Safety, and another from the Associated Builders and
Contractors.
Chairwoman Woolsey. Without objection.
[The information follows:]
Prepared Statement of the Coalition for Workplace Safety (CWS)
The Coalition for Workplace Safety (CWS) is a broad coalition
comprised of associations and employers who believe in improving
workplace safety through cooperation, assistance, transparency,
clarity, and accountability. The Coalition believes that workplace
safety is everyone's concern. Improving safety can only happen when all
parties--employers, employees, and OSHA--have a strong working
relationship. We thank you for this opportunity to express our views on
the Protecting America's Workers Act (PAWA), and, specifically, the
proposed changes being discussed here today.
Workplace Safety Is Improving
Workplace safety has steadily improved over the last 40 years and
BLS data shows that workplaces are safer than now than they have ever
been. Workplace fatalities have declined 23 percent since 1994. This
drop occurred even as the workforce expanded, with the economy adding
23 million new jobs over the same time period. Workplace injury and
illness rates have shown a similar drop. Since 1994, the total case
rate has declined by 50 percent and the lost days from work rate has
declined by 44 percent. While the government's reporting system may not
capture every workplace injury or illness, the data undeniably reveals
the trend of declining workplace injury and illness rates.
This decline is the product of various factors, including
employers, employees, OSHA, insurers, safety experts and business and
professional associations working together to increase understanding
about safe work practices and their importance and how employers and
employees can reduce workplace accidents. The advent of modern
communications and the internet have also facilitated sharing
information and safety related guidance.
CWS applauds OSHA for its role in decreasing injuries, illnesses
and fatalities, in particular its work in the last 15 years to promote
workplace safety through outreach and education. Since its inception,
OSHA has established standards employers must meet through its
regulations and enforcement activities. For the first 25 years, the
agency did not, however, focus on assisting employers and employees to
understand OSHA standards and related safe work practices. Beginning in
the Clinton Administration, this changed and OSHA developed an array of
approaches that focused on educating and working cooperatively with
employers to improve workplace safety. The CWS is committed to
supporting these approaches as they have contributed to the increase in
workplace safety--as indicated by the BLS workplace injuries and
illness rates.
PAWA Will Not Improve Workplace Safety
CWS is concerned about several of the provisions in the Protecting
America's Workers Act (S. 1580/H.R. 2067).
PAWA is unnecessary and will not improve workplace safety. It
focuses on increasing penalties and enforcement and does nothing to
assist employers in their efforts to make workplaces safer. Increasing
penalties on employers will only serve to increase litigation, drain
OSHA and DOL resources and harm our economy and hinder job growth.
Experience with the Mine Safety and Health Administration (MSHA)
reinforces this point. A hearing in the Education and Labor Committee
on February 23, revealed that as a result of the increased penalties
from the MINER Act passed in 2006 and MSHA's regulations taking effect
in 2007, the backlog at the review commission is now 16,000 cases worth
$195 million, and expected to rise further as the current policy at
MSHA is to not engage in settlements. This backlog has impacted safety
in the mining industry by absorbing an unprecedented amount of MSHA
resources which would otherwise be devoted to field and other
activities. Increasing OSHA's penalty regimes in a similar way will
neither increase safety in the workplace nor give employers the tools
necessary to create solutions towards workplace safety. Our concerns
with some of the specific aspects of PAWA that are being discussed
today are set forth below in more detail.
Abatement of Hazards Pending Contest
The change to Title III, Abatement of Hazards Pending Contest,
eliminates the employers' right to use the administrative appeals
process to thoroughly investigate its obligation to abate serious
hazards. This is a dangerous diminishment, if not outright elimination,
of due process protections for employers. Mandating abatement before a
review process can be completed is like asking a defendant in a court
case to pay a fine or serve a sentence before the completion of the
trial. Additionally, requiring abatement prior to a full investigation
may lead to inaccurate changes to be made, which can lead to
unnecessary costs for employers. Conversely, allowing due process to
proceed in the normal order will allow employers--especially small
businesses--the time and resources needed to find solutions to any
workplace safety issues. This is the best way to keep workers safe on
the job. OSHA already has the ability to seek injunction in cases where
there is an imminent danger and the employer refuses to abate the
hazard.
Penalty Changes
The proposed changes to criminal penalties under Title III would
alter the mental state requirements for criminal penalties from
``willful'' to ``knowing.'' While we agree those who intentionally
violate the law should be held accountable, this is a significant
change to 40 years of settled law that will cause uncertainty among
employers, employees, compliance officers, prosecutors and
adjudicators. The uncertainty about potential liability would cause
employers to engage in a more defensive posture with OSHA and on
workplace safety issues. Not only will this inevitability result in
increased litigation, but would severely disrupt the cooperative
approach towards workplace safety that has been so successful over the
past 15 years.
Furthermore, the language changes the definition of employer in the
currently proposed PAWA from ``any responsible corporate officer'' to
``an officer or director.'' The original PAWA language will create
unprecedented confusion and disincentives to being a corporate officer,
but this new language is a startlingly vague change that will result in
a further focus on litigation avoidance and not workplace safety. This
proposed change would have a chilling effect on how employers dedicate
staff and resources that maintain safety programs. These changes do
nothing to give employers--especially small businesses--the tools to
stay well-informed of safety concerns in the workplace. Increasing
penalties and lawsuits does not get to the heart of the problem
necessary to find solutions in the workplace.
The bill would also increase civil penalties dramatically which
will also lead to more contested cases with the associated impacts
already noted above.
Conclusion
The Coalition on Workplace Safety continues to stand ready to work
with OSHA and Congress to enhance workplace safety. However, PAWA--and
the changes presented here--undermine efforts to promote cooperative
engagement between employers and the agency, and will not assist
employers in making workplaces safer. We will continue to work towards
the goal of increasing workplace safety by working together through
cooperation, assistance, transparency, clarity, and accountability.
______
Associated Builders and Contractors,
March 16, 2010.
Hon. Lynn Woolsey, Chair; Hon. Cathy McMorris Rodgers, Ranking Member,
Subcommittee on Workforce Protections, 112 Cannon House Office
Building, Washington, DC 20515
Dear Chairwoman Woolsey and Ranking Member McMorris Rodgers: On
behalf of Associated Builders and Contractors (ABC), a national
association with 77 chapters representing 25,000 merit shop
construction and construction--related firms with 2 million employees,
we appreciate the opportunity to submit this statement as part of
today's Subcommittee hearing entitled, ``Protecting America's Worker
Act: Modernizing OSHA Penalties.'' ABC and its members are ardent
advocates of workplace safety, which is demonstrated through our proven
record of cooperation and collaboration with OSHA and dedication to
workplace safety education and training. ABC, however, strongly opposes
H.R. 2067, Protecting America's Workers Act (PAWA). We believe, if
enacted, the PAWA will increase litigation, creative disincentive for
cooperation between employers, associations and OSHA, while failing to
improve workplace safety and health.
Over the years, ABC and its 77 chapters nationwide have had the
privilege of building excellent working relationships with OSHA's
national, regional and area offices. OSHA staff members have addressed
ABC members at our annual Construction Education Conference, worked
with our chapters to conduct safety training courses throughout the
country. Communication between both OSHA and ABC members has increased
understanding of workplace safety, which has contributed to the
decrease in the number of fatalities and injuries in the construction
industry since 1994.
The PAWA changes to OSH Act's penalty scheme, in particular change
in mens rea requirements for criminal liability from ``willful'' to
``knowing'' and the broadening to the definition of employers from
``any responsible corporate officer'' to ``officer or director,'' would
create uncertainty that will lead to increased litigation and create a
more combative relationship between OSHA and employers. This will
likely negatively impact cooperative programs, which have been
effective in promoting workplace safety.
We also oppose the PAWA's provision requiring immediate abatement
and the limits the provision imposes on an employer's ability to
challenge a citation. This denies employers due process rights and OSHA
already has the authority to seek an injunction if a hazard poses an
imminent threat.
The construction industry is already strained with job loss, with
unemployment at 27.1 percent--nearly three times the national average,
and adding more bureaucratic layers to an already burdened industry is
not conducive to expedient economic recovery. Jobsite safety and health
is a top priority for ABC, whose objective is to have ``zero accident''
worksites.
ABC supports legislation that seeks to protect our members' most
important asset--their employees. This must be achieved through
legislation and regulations, which provide consistent enforcement,
incentive programs to increase compliance, and education efforts,
rather than efforts that will increase litigation, stifle cooperative
programs and deny employer due process rights. We look forward to
working with the Committee to address our concerns with this
legislation.
______
Mrs. McMorris Rodgers. Thank you, and I yield back.
Chairwoman Woolsey. Thank you very much.
Thank you all for attending this legislative hearing on the
penalty provisions of Protecting America's Workers Act, PAWA.
As our witnesses have testified, it has been 40 years since
the OSH Act was amended. And in those 40 years, we have learned
a lot about what is working and what needs changing. PAWA
modernizes the OSH Act, and gives OSHA the tools it needs to
keep workers safe and healthy.
I am looking forward to this bill proceeding through the
committee and to the floor for a vote.
Before we adjourn, or I turn--well, before we adjourn,
without objection, I would like to place the following
documents into the record: H.R. 2067, the Protecting America
Workers Act; number two, summary of proposed changes in H.R.
2067, and clarification of the standards; three, March 9, 2010
discussion draft; four, table comparing civil and criminal
penalties under the current Occupational Safety and Health Act
and H.R. 2067; five, April 29, 2008 report by the Senate
Health, Education, Labor and Pensions Committee, ``Discounting
Death: OSHA's Failure to Punish Safety Violations That Kill
Workers;'' six, letter from the governor of Wyoming in support
of the penalty increases in H.R. 2067; seven, statement of Peg
Seminario, health and safety director, AFL-CIO; eight, letter
from the American Industrial Hygiene Association; nine,
statement of Thomasina Rogers, chair of the Occupational Safe
and Health Review Commission; ten, letter from Tonya Ford
concerning the death of her uncle Robert Fitch, with
attachments; and, eleven, tables showing current maximum civil
penalties adjusted for inflation, 2000 to 2010.
[The information follows:]
111th CONGRESS
1st Session
H. R. 2067
To amend the Occupational Safety and Health Act of 1970 to
expand coverage under the Act, to increase protections
for whistleblowers, to increase penalties for certain
violators, and for other purposes.
------
IN THE HOUSE OF REPRESENTATIVES
April 23, 2009
Ms. Woolsey (for herself, Mr. Abercrombie, Ms. Berkley, Mr. Brady of
Pennsylvania, Mr. Cohen, Mr. Hare, Mr. Hinchey, Ms. Hirono, Mr. Holt,
Mrs. Maloney, Mr. George Miller of California, Mr. Payne, Mr. Rothman
of New Jersey, Ms. Schakowsky, Ms. Shea-Porter, Mr. Yarmuth, and Mr.
McGovern) introduced the following bill; which was referred to the
Committee on Education and Labor
------
A BILL
To amend the Occupational Safety and Health Act of 1970 to
expand coverage under the Act, to increase protections
for whistleblowers, to increase penalties for certain
violators, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting America's Workers Act''.
SEC. 2. REFERENCES.
Except as otherwise expressly provided, wherever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651 et seq.).
TITLE I--COVERAGE AND APPLICATION OF ACT
SEC. 101. COVERAGE OF PUBLIC EMPLOYEES.
(a) In General.--Section 3(5) (29 U.S.C. 652(5)) is amended by
striking ``but does not include'' and all that follows through the
period at the end and inserting ``including the United States, a State,
or a political subdivision of a State.''.
(b) Construction.--Nothing in this Act shall be construed to affect
the application of section 18 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 667).
SEC. 102. APPLICATION OF ACT.
Section 4(b) (29 U.S.C. 653(b)(1)) is amended----
(1) by redesignating paragraphs (2), (3), and (4) as paragraphs
(5), (6), and (7), respectively; and
(2) by striking paragraph (1) and inserting the following:
``(1) If a Federal agency has promulgated and is enforcing a
standard or regulation affecting occupational safety or health of some
or all of the employees within that agency's regulatory jurisdiction,
and the Secretary determines that such a standard or regulation as
promulgated and the manner in which the standard or regulation is being
enforced provides protection to those employees that is at least as
effective as the protection provided to those employees by this Act and
the Secretary's enforcement of this Act, the Secretary may publish a
certification notice in the Federal Register. The notice shall set
forth that determination and the reasons for the determination and
certify that the Secretary has ceded jurisdiction to that Federal
agency with respect to the specified standard or regulation affecting
occupational safety or health. In determining whether to cede
jurisdiction to a Federal agency, the Secretary shall seek to avoid
duplication of, and conflicts between, health and safety requirements.
Such certification shall remain in effect unless and until rescinded by
the Secretary.
``(2) The Secretary shall, by regulation, establish procedures by
which any person who may be adversely affected by a decision of the
Secretary certifying that the Secretary has ceded jurisdiction to
another Federal agency pursuant to paragraph (1) may petition the
Secretary to rescind a certification notice under paragraph (1). Upon
receipt of such a petition, the Secretary shall investigate the matter
involved and shall, within 90 days after receipt of the petition,
publish a decision with respect to the petition in the Federal
Register.
``(3) Any person who may be adversely affected by----
``(A) a decision of the Secretary certifying that the Secretary has
ceded jurisdiction to another Federal agency pursuant to paragraph (1);
or
``(B) a decision of the Secretary denying a petition to rescind
such a certification notice under paragraph (1),
may, not later than 60 days after such decision is published in the
Federal Register, file a petition challenging such decision with the
United States court of appeals for the circuit in which such person
resides or such person has a principal place of business, for judicial
review of such decision. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the Secretary. The Secretary's
decision shall be set aside if found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
``(4) Nothing in this Act shall apply to working conditions covered
by the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et
seq.).''.
TITLE II--INCREASING PROTECTIONS FOR WHISTLE BLOWERS
SEC. 201. EMPLOYEE ACTIONS.
Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting
before the period at the end the following: ``, including reporting any
injury, illness, or unsafe condition to the employer, agent of the
employer, safety and health committee involved, or employee safety and
health representative involved''.
SEC. 202. PROHIBITION OF DISCRIMINATION.
Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
(2) and inserting the following:
``(2) No person shall discharge or in any manner discriminate
against an employee for refusing to perform the employee's duties if
the employee has a reasonable apprehension that performing such duties
would result in serious injury to, or serious impairment of the health
of, the employee or other employees. The circumstances causing the
employee's apprehension of serious injury or serious impairment of
health shall be of such a nature that a reasonable person, under the
circumstances confronting the employee, would conclude that there is a
bona fide danger of a serious injury, or serious impairment of health,
resulting from the circumstances. In order to qualify for protection
under this paragraph, the employee, when practicable, shall have sought
from the employee's employer, and have been unable to obtain, a
correction of the circumstances causing the refusal to perform the
employee's duties.''.
SEC. 203. PROCEDURE.
Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
(3) and inserting the following:
``(3) Any employee who believes that the employee has been
discharged, disciplined, or otherwise discriminated against by any
person in violation of paragraph (1) or (2) may, within 180 days after
such alleged violation occurs, file (or have filed by any person on the
employee's behalf) a complaint with the Secretary alleging that such
discharge or discrimination violates paragraph (1) or (2). Upon receipt
of such a complaint, the Secretary shall notify the person named in the
complaint (referred to in this subsection as the `respondent') of the
filing of the complaint.
``(4)(A)(i) Not later than 60 days after the receipt of a complaint
filed under paragraph (3), the Secretary shall conduct an investigation
and determine whether there is reasonable cause to believe that the
complaint has merit. During the investigation, the Secretary shall
notify the respondent of the charges made in the complaint, and shall
provide such person with an opportunity to meet with the inspector
conducting the investigation, to submit a response to such charges, and
to present witnesses to rebut such charges. The Secretary shall also
consider the result of any grievance proceeding provided for in a
collective bargaining agreement, that may have been held with respect
to such charges. Upon completion of the investigation, the Secretary
shall issue findings and notify the complainant and the respondent of
the Secretary's findings. If the Secretary has concluded that there is
reasonable cause to believe that a violation has occurred, the
Secretary's findings shall be accompanied by a preliminary order
providing the relief prescribed by subparagraph (B).
``(ii)(I) Not later than 30 days after the Secretary has issued
findings under clause (i), either the respondent or the complainant may
file objections to the findings or preliminary order, and request a
hearing on the record, except that the filing of such objections shall
not operate to stay any reinstatement remedy contained in the
preliminary order.
``(II) If a hearing described in subclause (I) is not requested in
the 30-day period described in such subclause with respect to a
preliminary order, the order shall be deemed to be a final order and
not subject to judicial review.
``(iii) If the Secretary does not issue findings under clause (i)
with respect to a complaint within 90 days after the receipt of the
complaint, the complainant may request a hearing on the record on the
complaint.
``(iv) The Secretary shall expeditiously conduct a hearing
requested under clause (ii) or (iii). Upon the conclusion of such
hearing, the Secretary shall issue a final order within 120 days. Until
the issuance of a final order, such hearing may be terminated at any
time on the basis of a settlement agreement entered into by the
Secretary, the complainant, and the respondent.
``(B)(i) If, in response to a complaint filed under paragraph (3),
the Secretary determines that a violation of paragraph (1) or (2) has
occurred, in issuing an order under subparagraph (A)(iv), the Secretary
shall require----
``(I) the respondent who committed such violation to correct the
violation;
``(II) such respondent to reinstate the complainant to the
complainant's former position together with the compensation (including
backpay), terms, conditions, and privileges of the complainant's
employment; and
``(III) such respondent to pay compensatory damages.
``(ii) On issuing an order requiring a remedy described in clause
(i), the Secretary, at the request of the complainant, may assess
against the respondent against whom the order is issued a sum equal to
the aggregate amount of all costs and expenses (including attorney's
fees) reasonably incurred, as determined by the Secretary, by the
complainant for, or in connection with a complaint upon which the order
was issued.
``(5)(A) Any person adversely affected or aggrieved by an order
issued after a hearing conducted under paragraph (4)(A) may obtain
review of the order in the United States court of appeals for the
circuit in which the violation, with respect to which the order was
issued, allegedly occurred, or the circuit in which such person resided
on the date of such violation. The petition for review shall be filed
within 60 days after the issuance of the Secretary's order. Such review
shall be conducted in accordance with the provisions of chapter 7 of
title 5, United States Code. The court shall conduct the review and
issue a decision expeditiously.
``(B) If a respondent fails to comply with an order issued under
paragraph (4)(A), the Secretary shall file a civil action in the United
States district court for the district in which the violation was found
to occur in order to enforce such order. In actions brought under this
subparagraph, the district court shall have jurisdiction to grant all
appropriate relief, including injunctive relief, reinstatement, and
compensatory damages.
``(6) The legal burdens of proof set forth in section 1221(e) of
title 5, United States Code, shall govern adjudication of violations
under this subsection.''.
SEC. 204. RELATION TO ENFORCEMENT.
Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the
period the following: ``, including the history of violations, under
section 11(c)''.
TITLE III--INCREASING PENALTIES FOR VIOLATORS
SEC. 301. POSTING OF EMPLOYEE RIGHTS.
Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the
end the following new sentence: ``Such regulations shall include
provisions requiring employers to post for employees information on the
protections afforded under section 11(c).''.
SEC. 302. PROHIBITION ON DISCOURAGING EMPLOYEE REPORTS OF INJURY OR
ILLNESS.
Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the
end the following new sentence: ``Such regulations shall prohibit the
adoption or implementation of policies or practices by the employer
that discourage the reporting of work-related injuries or illnesses by
any employee or in any manner discriminate or provide for adverse
action against any employee for reporting a work-related injury or
illness.''
SEC. 303. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS.
Section 8(e) (29 U.S.C. 657) is amended by inserting after the
first sentence the following: ``Time spent by an employee participating
in or aiding any such inspection shall be deemed to be hours worked and
no employee shall suffer any loss of wages, benefits, or other terms
and conditions of employment for having participated in or aided any
such inspection.''.
SEC. 304. INVESTIGATIONS OF FATALITIES AND SERIOUS INCIDENTS.
Section 8 (29 U.S.C. 657) is amended by adding at the end the
following new subsection:
``(i)(1) The Secretary shall investigate any incident resulting in
death or serious incident, that occurs in a place of employment covered
by this Act.
``(2) If an incident resulting in death or serious incident occurs
in a place of employment covered by this Act, the employer shall notify
the Secretary of the incident involved and shall take appropriate
measures to prevent the destruction or alteration of any evidence that
would assist in investigating the incident. The appropriate measures
required by this paragraph do not prevent an employer from taking
action on a worksite to prevent injury to employees or substantial
damage to property. If an employer takes such action, the employer
shall notify the Secretary of the action in a timely fashion.
``(3) In this subsection:
``(A) Incident resulting in death.--The term `incident resulting in
death' means an incident that results in the death of an employee.
``(B) Serious incident.--The term `serious incident' means an
incident that results in the hospitalization of 2 or more employees.''.
SEC. 305. PROHIBITION ON UNCLASSIFIED CITATIONS.
Section 9 (29 U.S.C. 658) is amended by adding at the end the
following:
``(d) The Secretary may not designate a citation issued under this
section as an unclassified citation.''.
SEC. 306. VICTIMS' RIGHTS.
The Act is amended by inserting after section 9 (29 U.S.C. 658) the
following:
``SEC. 9A. VICTIM'S RIGHTS.
``(a) Definition.--In this section, the term `victim' means----
``(1) an employee who has sustained a work-related injury or
illness that is the subject of an inspection or investigation conducted
under section 8, or
``(2) a family member of an employee, if----
``(A) the employee is killed as a result of a work-
related injury or illness that is the subject of an inspection or
investigation conducted under section 8; or
``(B) the employee sustains a work-related injury or illness that
is the subject of an inspection or investigation conducted under
section 8, and the employee cannot reasonably exercise the employee's
rights under this section.
``(b) Rights.--On request, a victim or the representative of a
victim, shall be afforded the right, with respect to a work-related
injury or illness (including a death resulting from a work-related
injury or illness) involving an employee, to----
``(1) meet with the Secretary, or an authorized representative of
the Secretary, regarding the inspection or investigation conducted
under section 8 concerning the employee's injury or illness before the
Secretary's decision to issue a citation or take no action; and
``(2)(A) receive, at no cost, a copy of any citation or report,
issued as a result of such inspection or investigation, on the later of
the date the citation or report is issued and the date of the request;
``(B) be informed of any notice of contest filed under section 10;
and
``(C) be provided an explanation of the rights of employee and
employee representatives to participate in proceedings conducted under
section 10.
``(c) Modification of Citation.--Before entering into an agreement
to withdraw or modify a citation issued as a result of an inspection or
investigation of an incident resulting in death or serious incident
under section 8, the Secretary, on request, shall provide an
opportunity to the victim or the representative of a victim to appear
and make a statement before the parties conducting settlement
negotiations.
``(d) Notification and Review.--The Secretary shall establish
procedures----
``(1) to inform victims of their rights under this section; and
``(2) for the informal review of any claim of a denial of such a
right.''.
SEC. 307. RIGHT TO CONTEST CITATIONS AND PENALTIES.
The first sentence of section 10(c) (29 U.S.C. 659(c)) is amended--
--
(1) by inserting after ``the issuance of a citation'' the
following: ``(including a modification of a citation issued)''; and
(2) by inserting after ``files a notice with the Secretary
alleging'' the following: ``that the citation fails properly to
designate the violation as serious, willful, or repeated, that the
proposed penalty is not adequate, or''.
SEC. 308. ABATEMENT OF SERIOUS HAZARDS DURING EMPLOYER CONTESTS TO A
CITATION.
(a) Citations and Enforcement.--Section 10(b) (29 U.S.C. 659(b)) is
amended----
(1) by inserting after ``which period'' the following: ``for other
than serious violations''; and
(2) by adding at the end the following: ``In lieu of providing the
notification required by this subsection, where a notice of contest to
a citation is pending before the Commission, the Secretary may by
appropriate motion in that proceeding assert that the employer has
failed to abate the violation within the time period fixed in the
citation.''.
(b) Employer Contest.--Section 10(c) (29 U.S.C. 659) is amended by
inserting after the first sentence the following: ``The pendency of a
contest before the Commission shall not bar the Secretary from
inspecting a place of employment or from issuing a citation under
section 9.''.
SEC. 309. OBJECTIONS TO MODIFICATION OF CITATIONS.
Section 10 (29 U.S.C. 659) is amended by adding at the end the
following new subsection:
``(d)(1) If the Secretary intends to withdraw or to modify a
citation issued under section 9(a) as a result of any agreement with
the cited employer, the Secretary shall provide (in accordance with
rules of procedure prescribed by the Commission) prompt notice to
affected employees or representatives of affected employees, and that
notice shall include the terms of the proposed agreement.
``(2) Not later than 15 working days after the receipt of a notice
provided in accordance with paragraph (1), any employee or
representative of employees, regardless of whether such employee or
representative has previously elected to participate in the proceedings
involved, shall have the right to file a notice with the Secretary
alleging that the proposed agreement fails to effectuate the purposes
of this Act and stating the respects in which the agreement fails to
effectuate the purposes.
``(3) Upon receipt of a notice filed under paragraph (2), the
Secretary shall consider the statements presented in the notice, and if
the Secretary determines to proceed with the proposed agreement, the
Secretary shall respond with particularity to the statements presented
in the notice.
``(4) Not later than 15 working days following the Secretary's
response provided pursuant to paragraph (3), the employee or
representative of employees shall, on making a request to the
Commission, be entitled to a hearing before the Commission as to
whether adoption of the proposed agreement would effectuate the
purposes of this Act, including a determination as to whether the
proposed agreement would adequately abate the alleged violations
alleged in the citation.
``(5) If the Commission determines that the proposed agreement
fails to effectuate the purposes of this Act, the proposed agreement
shall not be entered as an order of the Commission and the citation
shall not be withdrawn or modified in accordance with the proposed
agreement.''.
SEC. 310. CIVIL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) is amended----
(1) in subsection (a)----
(A) by striking ``$70,000'' and inserting ``$120,000'';
(B) by striking ``$5,000'' and inserting ``$8,000''; and
(C) by adding at the end the following: ``If such a violation
causes the death of an employee, such civil penalty amounts shall be
increased to not more than $250,000 for such violation, but not less
than $50,000 for such violation, except that for an employer with 25 or
fewer employees such penalty shall not be less than $25,000 for such
violation.'';
(2) in subsection (b)----
(A) by striking ``$7,000'' and inserting ``$12,000''; and
(B) by adding at the end the following: ``If such a violation
causes the death of an employee, such civil penalty amounts shall be
increased to not more than $50,000 for such violation, but not less
than $20,000 for such violation, except that for an employer with 25 or
fewer employees such penalty shall not be less than $10,000 for such
violation.'';
(3) in subsection (c)----
(A) by striking ``$7,000'' and inserting ``$12,000''; and
(B) by adding at the end the following: ``If such a violation
causes the death of an employee, such civil penalty amounts shall be
increased to not more than $50,000 for such violation, but not less
than $20,000 for such violation, except that for an employer with 25 or
fewer employees such penalty shall not be less than $10,000 for such
violation.'';
(4) in subsection (d)----
(A) by striking ``$7,000'' and inserting ``$12,000''; and
(B) by adding at the end the following: ``If such a violation
causes the death of an employee, such civil penalty amounts shall be
increased to not more than $50,000 for such violation, but not less
than $20,000 for such violation, except that for an employer with 25 or
fewer employees such penalty shall not be less than $10,000 for such
violation.'';
(5) by redesignating subsections (e) through (l) as subsections (f)
through (m), respectively; and
(6) in subsection (j) (as redesignated in paragraph (5)), by
striking ``$7,000'' and inserting ``$12,000;''.
(b) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended
by subsection (a)) is further amended by inserting after subsection (d)
the following:
``(e) Amounts provided under this section for civil penalties shall
be adjusted by the Secretary at least once during each 4-year period to
account for the percentage increase or decrease in the Consumer Price
Index for all urban consumers during such period.''.
SEC. 311. OSHA CRIMINAL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) (as amended by section
310) is further amended----
(1) by amending subsection (f) to read as follows:
``(f)(1) Any employer who willfully violates any standard, rule, or
order promulgated pursuant to section 6 of this Act, or of any
regulations prescribed pursuant to this Act, and that violation caused
death to any employee, shall, upon conviction, be punished by a fine in
accordance with section 3571 of title 18, United States Code, or by
imprisonment for not more than 10 years, or both; except that if the
conviction is for a violation committed after a first conviction of
such person under this subsection or subsection (i), punishment shall
be by a fine in accordance with section 3571 of title 18, United States
Code, or by imprisonment for not more than 20 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any responsible corporate officer.'';
(2) in subsection (g), by striking ``fine of not more than $1,000
or by imprisonment for not more than six months,'' and inserting ``fine
in accordance with section 3571 of title 18, United States Code, or by
imprisonment for not more than 2 years,'';
(3) in subsection (h), by striking ``fine of not more than $10,000,
or by imprisonment for not more than six months,'' and inserting ``fine
in accordance with section 3571 of title 18, United States Code, or by
imprisonment for not more than 5 years,'';
(4) by redesignating subsections (j) through (m) as subsections (k)
through (n), respectively; and
(5) by inserting after subsection (i) the following:
``(j)(1) Any employer who willfully violates any standard, rule, or
order promulgated pursuant to section 6, or any regulation prescribed
pursuant to this Act, and that violation causes serious bodily injury
to any employee but does not cause death to any employee, shall, upon
conviction, be punished by a fine in accordance with section 3571 of
title 18, United States Code, or by imprisonment for not more than 5
years, or by both, except that if the conviction is for a violation
committed after a first conviction of such person under this subsection
or subsection (e), punishment shall be by a fine in accordance with
section 3571 of title 18, United States Code, or by imprisonment for
not more than 10 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any responsible corporate officer.''.
(b) Definition.--Section 3 (29 U.S.C. 652) is amended by adding at
the end the following:
``(15) The term `serious bodily injury' means bodily injury that
involves----
``(A) a substantial risk of death;
``(B) protracted unconsciousness;
``(C) protracted and obvious physical disfigurement; or
``(D) protracted loss or impairment, of the function of a bodily
member, organ, or mental faculty.''.
(c) Jurisdiction for Prosecution Under State and Local Criminal
Laws.--Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is
further amended by adding at the end the following:
``(o) Nothing in this Act shall preclude a State or local law
enforcement agency from conducting criminal prosecutions in accordance
with the laws of such State or locality.''.
TITLE IV--EFFECTIVE DATE
SEC. 401. EFFECTIVE DATE.
(a) General Rule.--Except as provided for in subsection (b), this
Act and the amendments made by this Act shall take effect 90 days after
the date of enactment of this Act.
(b) Exceptions for States and Political Subdivisions.--The
following are exceptions to the effective date described in subsection
(a):
(1) A State that has a State plan approved under section 18 (29
U.S.C. 667) shall amend its State plan to conform with the requirements
of this Act and the amendments made by this Act not later than 12
months after the date of enactment of this Act. Such amendments to the
State plan shall take effect not later than 90 days after the adoption
of such amendments by such State.
(2) This Act and the amendments made by this Act shall take effect
not later than 36 months after the date of the enactment of this Act in
a State, or a political subdivision of a State, that does not have a
State plan approved under section 18 (29 U.S.C. 667).
______
Summary of the Protecting America's Workers Act (H.R. 2067)
The Protecting America's Workers Act (PAWA) makes significant
changes to the Occupational Safety and Health Act (OSH Act), which was
passed in order to ensure that employees work in safe and healthy
workplaces. PAWA strengthens the OSH Act, which has not been
significant altered since its original passage in 1970.
Specifically, PAWA expands the OSH Act's coverage to include state
and local public employees, federal government workers and millions of
other workers who are inadequately covered by other laws. These include
employees who work for airlines, railroads and Department of Energy
contractors who fall between the cracks because their health and safety
coverage is left to other government agencies that don't treat worker
safety as a priority.
PAWA raises civil penalties on employers for violations of the OSH
Act, establishes mandatory minimum penalties for violations involving
worker fatalities and indexes penalties to inflation. It authorizes
felony criminal prosecutions against employers who commit willful
violations that result in death or serious bodily injury and extends
the reach of such penalties to responsible corporate officers.
PAWA improves upon current whistleblower protections, including
codifying regulations that give workers the right to refuse to do
hazardous work. It clarifies that employees cannot be discriminated
against for reporting injuries, illnesses or unsafe conditions, and
brings the procedures for investigating and adjudicating discrimination
complaints into line with other safety and health and whistleblower
laws.
The bill requires the Occupational Safety and Health Administration
(OSHA), the health and safety arm of the Department of Labor, to
investigate all cases of death and serious injuries (i.e. incidents
that result in the hospitalization of 2 or more employees); it provides
workers and employee representatives the right to contest OSHA's
failure to issue citations, the characterization of citations that are
issued and proposed penalties; and it gives injured workers and the
families of workers injured or who have died in work-related incidents
the right to meet with investigators, to receive copies of citations
and to have an opportunity to appear and make a statement before
parties involved in any settlement negotiation.
In recent years, OSHA had reached settlement agreements with
employers that, at the employer's request, have changed the designation
of willful citations to an ``unclassified'' citation's meaning that the
employer avoids the potential consequences of having a ``willful'' OSHA
violation on its record. PAWA prohibits OSHA from designating a
citation as an unclassified citation.
In addition, any worker or his or her representative can object to
the modification or withdrawal of a citation due to a settlement with
the employer on the grounds that the proposed agreement fails to
``effectuate the purposes'' of the OSH Act, and be entitled to a
hearing before the Occupational Safety and Health Review Commission.
PAWA clarifies that the time spent by an employee accompanying an
OSHA inspector during an investigation is considered ``time worked,''
for which a worker must be compensated.
Since the passage of the OSH Act, much progress has been made. It
has been reported that over 390,000 lives have been saved. Nonetheless,
too many workers are still dying and millions of others are injured or
become ill by working in unsafe and unhealthy conditions. The
Protecting America's Workers Act strengthens and enhances the OSH Act
so that it can fully meet its promise to ensure safe and healthy
workplaces for all Americans.
______
Clarification of the Mens Rea Requirement
Another proposed change would alter the mens rea (mental state)
requirements for a criminal case from ``willful'' to ``knowing.'' Under
the introduced PAWA, an employer cannot be convicted under the criminal
law unless that employer has acted ``willfully'' and such willful act
caused the death or serious injury to a worker. Courts interpreting the
``willful'' requirement under the OSH Act require proof that an
employer has taken a ``deliberate action with knowledge of the OSH
Act's requirements or with plain indifference to those requirements.''
\1\ Proof of malice is not required. In other criminal cases, the
``wilfull'' standard means that an actor knew his conduct was unlawful,
or he acted with evil intent.\2\
---------------------------------------------------------------------------
\1\ Rabinowitz, Randy (editor), Occupational Safety and Health Law,
2d Edition, ABA Section of Labor and Employment Law (2002), p. 269.
\2\ Testimony of David Uhlmann before the U.S. House of
Representatives, Committee on Education and Labor (April 28, 2009.
---------------------------------------------------------------------------
Notwithstanding criminal mental state requirement under the OSH
Act, the ``willful'' standard is not a familiar one in the criminal law
context, and the norm is to require a ``knowing'' standard of proof in
which an actor knows that his or her conduct was wrong. Under this
standard, employers cannot escape liability by claiming that they did
not know what the law required. Note: under either standard a
prosecutor would still have to prove that an actor is guilty beyond a
reasonable doubt.
______
[DISCUSSION DRAFT]
[as of March 9, 2010]
------
[Modifications to HR 2067, Protecting America's Workers Act]
------
111th CONGRESS
2d Session
H. R. __
To amend the Occupational Safety and Health Act of 1970 to
expand coverage under the Act, to increase protections
for whistleblowers, to increase penalties for certain
violators, and for other purposes.
------
IN THE HOUSE OF REPRESENTATIVES
Ms. Woolsey introduced the following bill; which was referred to the
Committee on _______________
------
A BILL
To amend the Occupational Safety and Health Act of 1970 to
expand coverage under the Act, to increase protections
for whistleblowers, to increase penalties for certain
violators, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Protecting America's Workers Act''.
SEC. 2. REFERENCES.
Except as otherwise expressly provided, wherever in this Act an
amendment or repeal is expressed in terms of an amendment to, or repeal
of, a section or other provision, the reference shall be considered to
be made to a section or other provision of the Occupational Safety and
Health Act of 1970 (29 U.S.C. 651 et seq.).
TITLE I--COVERAGE OF PUBLIC EMPLOYEES AND APPLICATION OF ACT
SEC. 101. COVERAGE OF PUBLIC EMPLOYEES.
(a) In General.--Section 3(5) (29 U.S.C. 652(5)) is amended by
striking ``but does not include'' and all that follows through the
period at the end and inserting ``including the United States, a State,
or a political subdivision of a State.''.
(b) Construction.--Nothing in this Act shall be construed to affect
the application of section 18 of the Occupational Safety and Health Act
of 1970 (29 U.S.C. 667).
SEC. 102. APPLICATION OF ACT.
Section 4(b) (29 U.S.C. 653(b)(1)) is amended--
(1) by redesignating paragraphs (2), (3), and (4) as
paragraphs (5), (6), and (7), respectively; and
(2) by striking paragraph (1) and inserting the following:
``(1) If a Federal agency has promulgated and is enforcing a
standard or regulation affecting occupational safety or health of some
or all of the employees within that agency's regulatory jurisdiction,
and the Secretary determines that such a standard or regulation as
promulgated and the manner in which the standard or regulation is being
enforced provides protection to those employees that is at least as
effective as the protection provided to those employees by this Act and
the Secretary's enforcement of this Act, the Secretary may publish a
certification notice in the Federal Register. The notice shall set
forth that determination and the reasons for the determination and
certify that the Secretary has ceded jurisdiction to that Federal
agency with respect to the specified standard or regulation affecting
occupational safety or health. In determining whether to cede
jurisdiction to a Federal agency, the Secretary shall seek to avoid
duplication of, and conflicts between, health and safety requirements.
Such certification shall remain in effect unless and until rescinded by
the Secretary.
``(2) The Secretary shall, by regulation, establish procedures by
which any person who may be adversely affected by a decision of the
Secretary certifying that the Secretary has ceded jurisdiction to
another Federal agency pursuant to paragraph (1) may petition the
Secretary to rescind a certification notice under paragraph (1). Upon
receipt of such a petition, the Secretary shall investigate the matter
involved and shall, within 90 days after receipt of the petition,
publish a decision with respect to the petition in the Federal
Register.
``(3) Any person who may be adversely affected by--
``(A) a decision of the Secretary certifying that the
Secretary has ceded jurisdiction to another Federal agency
pursuant to paragraph (1); or
``(B) a decision of the Secretary denying a petition to
rescind such a certification notice under paragraph (1),
may, not later than 60 days after such decision is published in the
Federal Register, file a petition challenging such decision with the
United States court of appeals for the circuit in which such person
resides or such person has a principal place of business, for judicial
review of such decision. A copy of the petition shall be forthwith
transmitted by the clerk of the court to the Secretary. The Secretary's
decision shall be set aside if found to be arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.
``(4) Nothing in this Act shall apply to working conditions covered
by the Federal Mine Safety and Health Act of 1977 (30 U.S.C. 801 et
seq.).''.
TITLE II--INCREASING PROTECTIONS FOR WHISTLEBLOWERS
SEC. 201. EMPLOYEE ACTIONS.
Section 11(c)(1) (29 U.S.C. 660(c)(1)) is amended by inserting
before the period at the end the following: ``, including the reporting
of any injury, illness, or unsafe condition to the employer, agent of
the employer, safety and health committee involved, or employee safety
and health representative involved''.
SEC. 202. PROHIBITION OF DISCRIMINATION.
Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
(2) and inserting the following:
``(2) No person shall discharge or in any manner
discriminate against an employee for refusing to perform the
employee's duties if the employee has a reasonable apprehension
that performing such duties would result in serious injury to,
or serious impairment of the health of, the employee or other
employees. The circumstances causing the employee's
apprehension of serious injury or serious impairment of health
shall be of such a nature that a reasonable person, under the
circumstances confronting the employee, would conclude that
there is a bona fide danger of a serious injury, or serious
impairment of health, resulting from the circumstances. In
order to qualify for protection under this paragraph, the
employee, when practicable, shall have sought from the
employee's employer, and have been unable to obtain, a
correction of the circumstances causing the refusal to perform
the employee's duties.''.
SEC. 203. PROCEDURE.
Section 11(c) (29 U.S.C. 660(c)) is amended by striking paragraph
(3) and inserting the following:
``(3) Complaint.--Any employee who believes that the
employee has been discharged, disciplined, or otherwise
discriminated against by any person in violation of paragraph
(1) or (2) may seek relief for such violation by filing a
complaint with the Secretary under paragraph (5).
``(4) Statute of limitations.--
``(A) In general.--An employee may take the action
permitted by paragraph (3)(A) not later than 180 days
after the later of--
``(i) the date on which an alleged
violation of paragraph (1) or (2) occurs; or
``(ii) the date on which the employee knows
or should reasonably have known that such
alleged violation occurred.
``(B) Repeat violation.--Except in cases when the
employee has been discharged, a violation of paragraph
(1) or (2) shall be considered to have occurred on the
last date an alleged repeat violation occurred.
``(5) Investigation.--
``(A) In general.--An employee may, within the time
period required under paragraph (4)(B), file a
complaint with the Secretary alleging a violation of
paragraph (1) or (2). If the complaint alleges a prima
facie case, the Secretary shall conduct an
investigation of the allegations in the complaint,
which--
``(i) shall include--
``(I) interviewing the complainant;
``(II) providing the respondent an
opportunity to--
``(aa) submit to the
Secretary a written response to
the complaint; and
``(bb) meet with the
Secretary to present statements
from witnesses or provide
evidence; and
``(III) providing the complainant
an opportunity to--
``(aa) receive any
statements or evidence provided
to the Secretary;
``(bb) meet with the
Secretary; and
``(cc) rebut any statements
or evidence; and
``(ii) may include issuing subpoenas for
the purposes of such investigation.
``(B) Decision.--Not later than 90 days after the
filing of the complaint, the Secretary shall--
``(i) issue a decision on whether to order
relief; and
``(ii) notify, in writing, the complainant
and the respondent named in the complaint of
such decision.
``(6) Preliminary order following investigation.--If, after
completion of an investigation under paragraph (5)(A), the
Secretary finds reasonable cause to believe that a violation of
paragraph (1) or (2) has occurred, the Secretary shall issue a
preliminary order providing relief authorized under paragraph
(14) at the same time the Secretary issues a decision under
paragraph (5)(B). If a de novo hearing is not requested within
the time period required under paragraph (7)(A)(i), such
preliminary order shall be deemed a final order of the
Secretary and is not subject to judicial review.
``(7) Hearing.--
``(A) Request for hearing.--
``(i) In general.--A de novo hearing on the
record before an administrative law judge may
be requested--
``(I) by the complainant or
respondent within 30 days after
receiving notification of a decision or
preliminary order for relief issued
under paragraph (5)(B) or (6),
respectively;
``(II) by the complainant within 30
days after the date the complaint is
dismissed without investigation by the
Secretary under paragraph (5)(A); or
``(III) by the complainant within
120 days after the date of filing the
complaint, if the Secretary has not
issued a decision under paragraph
(5)(B).
``(ii) Reinstatement order.--The request
for a hearing shall not operate to stay any
preliminary reinstatement order issued under
paragraph (6).
``(B) Procedures.--
``(i) In general.--A hearing requested
under this paragraph shall be conducted
expeditiously and in accordance with rules
established by the Secretary for hearings
conducted by administrative law judges.
``(ii) Subpoenas; production of evidence.--
In conducting any such hearing, the
administrative law judge may issue subpoenas.
The respondent or complainant may request the
issuance of subpoenas that require the
deposition of, or the attendance and testimony
of, witnesses and the production of any
evidence (including any books, papers,
documents, or recordings) relating to the
matter under consideration.
``(iii) Decision.--The administrative law
judge shall issue a decision not later than 90
days after the date on which a hearing was
requested under this paragraph and promptly
notify, in writing, the parties and the
Secretary of such decision, including the
findings of fact and conclusions of law. If the
administrative law judge finds that a violation
of paragraph (1) or (2) has occurred, the judge
shall issue an order for relief under paragraph
(14). If review under paragraph (8) or (11) is
not timely requested, such order shall be
deemed a final order of the Secretary that is
not subject to judicial review.
``(8) Administrative appeal.--
``(A) In general.--Not later than 30 days after the
date of notification of a decision and order issued by
an administrative law judge under paragraph (7), the
complainant or respondent may file, with objections, an
administrative appeal with the Secretary (or an
administrative review body designated by the
Secretary).
``(B) Standard of review.--In reviewing the
decision and order of the administrative law judge, the
Secretary (or designated administrative review body)
shall affirm the decision and order if it is determined
that the factual findings set forth therein are
supported by substantial evidence and the decision and
order are made in accordance with applicable law.
``(C) Decision.--If the Secretary grants the
administrative appeal and finds that a violation of
paragraph (1) or (2) has occurred, the Secretary shall
issue, within 60 days of receipt of the administrative
appeal, a final decision and order providing relief
authorized under paragraph (14), and such decision and
order shall constitute a final agency action.
``(9) Settlement in the administrative process.--
``(A) In general.--At any time before issuance of a
final order, an investigation or proceeding under this
subsection may be terminated on the basis of a
settlement agreement entered into by--
``(i) the Secretary or an administrative
law judge conducting a hearing under this
subsection;
``(ii) the complainant; and
``(iii) the respondent.
``(B) Public policy considerations.--The Secretary
or an administrative law judge conducting a hearing
under this subsection may not accept a settlement that
contains conditions conflicting with the rights
protected under this Act or that are contrary to public
policy, including a restriction on a complainant's
right to future employment with employers other than
the specific employers named in a complaint.
``(10) Inaction by the secretary or administrative law
judge.--
``(A) In general.--The complainant may bring a de
novo action described in subparagraph (B) if--
``(i) an administrative law judge has not
issued a decision and order within the 90-day
time period required under paragraph
(7)(B)(iii); or
``(ii) the Secretary has not issued a
decision and order within the 60-day time
period required under paragraph (8)(C).
``(B) De novo action.--Such de novo action may be
brought at law or equity in the United States district
court for the district where a violation of paragraph
(1) or (2) allegedly occurred or where the complainant
resided on the date of such alleged violation. The
court shall have jurisdiction over such action without
regard to the amount in controversy and to order
appropriate relief under paragraph (14). Such action
shall, at the request of either party to such action,
be tried by the court with a jury.
``(11) Judicial review.--
``(A) Timely appeal to the court of appeals.--Any
party adversely affected or aggrieved by a final
decision and order issued under this subsection may
obtain review of such decision and order in the United
States Court of Appeals for the circuit where the
violation, with respect to which such final decision
and order was issued, allegedly occurred or where the
complainant resided on the date of such alleged
violation. To obtain such review, a party shall file a
petition for review not later than 60 days after the
final decision and order was issued. Such review shall
conform to chapter 7 of title 5, United States Code.
The commencement of proceedings under this subparagraph
shall not, unless ordered by the court, operate as a
stay of the final decision and order.
``(B) Limitation on collateral attack.--An order
and decision with respect to which review may be
obtained under subparagraph (A) shall not be subject to
judicial review in any criminal or other civil
proceeding.
``(12) Enforcement of order.--If a respondent fails to
comply with an order issued under this subsection, the
Secretary or the complainant on whose behalf the order was
issued may file a civil action for enforcement in the United
States district court for the district in which the violation
was found to occur to enforce such order. If both the Secretary
and the complainant file such action, the action of the
Secretary shall take precedence. The district court shall have
jurisdiction to grant all appropriate relief including,
injunctive relief, compensatory or exemplary damages, and
reasonable attorneys' fees and costs.
``(13) Burdens of proof.--
``(A) Criteria for determination.--In adjudicating
a complaint pursuant to this subsection, the Secretary
or a court may determine that a violation of paragraph
(1) or (2) has occurred only if the complainant
demonstrates that any conduct described in paragraph
(1) or (2) with respect to the complainant was a
contributing factor in the adverse action alleged in
the complaint.
``(B) Prohibition.--Notwithstanding subparagraph
(A), a decision or order that is favorable to the
complainant shall not be issued in any administrative
or judicial action pursuant to this subsection if the
respondent demonstrates by clear and convincing
evidence that the respondent would have taken the same
adverse action in the absence of such conduct.
``(14) Relief.--
``(A) Order for relief.--If the Secretary or a
court determines that a violation of paragraph (1) or
(2) has occurred, the Secretary or court, respectively,
shall have jurisdiction to order all appropriate
relief, including injunctive relief, compensatory and
exemplary damages, including--
``(i) affirmative action to abate the
violation;
``(ii) reinstatement without loss of
position or seniority, and restoration of the
terms, rights, conditions, and privileges
associated with the complainant's employment,
including opportunities for promotions to
positions with equivalent or better
compensation for which the complainant is
qualified;
``(iii) compensatory and consequential
damages sufficient to make the complainant
whole, (including back pay, prejudgment
interest, and other damages); and
``(iv) expungement of all warnings,
reprimands, or derogatory references that have
been placed in paper or electronic records or
databases of any type relating to the actions
by the complainant that gave rise to the
unfavorable personnel action, and, at the
complainant's direction, transmission of a copy
of the decision on the complaint to any person
whom the complainant reasonably believes may
have received such unfavorable information.
``(B) Attorneys' fees and costs.--If the Secretary
or a court grants an order for relief under
subparagraph (A), the Secretary or court, respectively,
shall assess, at the request of the employee against
the employer--
``(i) reasonable attorneys' fees; and
``(ii) costs (including expert witness
fees)) reasonably incurred, as determined by
the Secretary or court respectively, in
connection with bringing the complaint upon
which the order was issued.
``(15) Procedural rights.--The rights and remedies
provided for in this subsection may not be waived by any
agreement, policy, form, or condition of employment, including
by any pre-dispute arbitration agreement or collective
bargaining agreement.
``(16) Savings.--Nothing in this section shall be construed
to diminish the rights, privileges, or remedies of any employee
who exercises rights under any Federal or State law or common
law, or under any collective bargaining agreement.
``(17) Election of venue.--
``(A) In general.--An employee of an employer who
is located in a State that has a State plan approved
under section 18 may file a complaint alleging a
violation of paragraph (1) or (2) by such employer
with--
``(i) the Secretary under paragraph (5); or
``(ii) a State plan administrator in such
State.
``(B) Referrals.--If--
``(i) the Secretary receives a complaint
pursuant to subparagraph (A)(i), the Secretary
shall not refer such complaint to a State plan
administrator for resolution; or
``(ii) a State plan administrator receives
a complaint pursuant to subparagraph (A)(ii),
the State plan administrator shall not refer
such complaint to the Secretary for
resolution.''.
SEC. 204. RELATION TO ENFORCEMENT.
Section 17(j) (29 U.S.C. 666(j)) is amended by inserting before the
period the following: ``, including the history of violations under
section 11(c)''.
TITLE III--INCREASING PENALTIES FOR VIOLATORS
SEC. 301. POSTING OF EMPLOYEE RIGHTS.
Section 8(c)(1) (29 U.S.C. 657(c)(1)) is amended by adding at the
end the following new sentence: ``Such regulations shall include
provisions requiring employers to post for employees information on the
protections afforded under section 11(c).''.
SEC. 302. EMPLOYER REPORTING OF WORK-RELATED DEATHS AND
HOSPITALIZATIONS AND PROHIBITION ON DISCOURAGING
EMPLOYEE REPORTS OF INJURY OR ILLNESS.
Section 8(c)(2) (29 U.S.C. 657(c)(2)) is amended by adding at the
end the following new sentences: ``Such regulations shall require
employers to promptly notify the Secretary of any work-related death or
work-related injury or illness that results in the in-patient
hospitalization of an employee for medical treatment. Such regulations
shall also prohibit the employer from adopting or implementing policies
or practices by the employer that have the effect of discouraging
accurate recordkeeping and the reporting of work-related injuries or
illnesses by any employee or in any manner discriminates or provides
for adverse action against any employee for reporting a work-related
injury or illness.''
SEC. 303. NO LOSS OF EMPLOYEE PAY FOR INSPECTIONS.
Section 8(e) (29 U.S.C. 657(e)) is amended by inserting after the
first sentence the following: ``Time spent by an employee participating
in or aiding any such inspection shall be deemed to be hours worked and
no employee shall suffer any loss of wages, benefits, or other terms
and conditions of employment for having participated in or aided any
such inspection.''.
SEC. 304. INVESTIGATIONS OF FATALITIES AND SIGNIFICANT INCIDENTS.
Section 8 (29 U.S.C. 657) is amended by adding at the end the
following new subsection:
``(i) Investigation of Fatalities and Serious Incidents.--
``(1) In General.--The Secretary shall investigate any significant
incident or an incident resulting in death that occurs in a place of
employment.
``(2) Appropriate Measures.--If a significant incident or an
incident resulting in death occurs in a place of employment, the
employer shall promptly notify the Secretary of the incident involved
and shall take appropriate measures to prevent the destruction or
alteration of any evidence that would assist in investigating the
incident. The appropriate measures required by this paragraph do not
prevent an employer from taking action on a worksite to prevent injury
to employees or substantial damage to property or to avoid disruption
of essential services necessary to public safety. If an employer takes
such action, the employer shall notify the Secretary of the action in a
timely fashion.
``(3) Definitions.--In this subsection:
``(A) Incident resulting in death.--The term `incident
resulting in death' means an incident that results in the death
of an employee.
``(B) Significant incident.--The term `significant
incident' means an incident that results in the in-patient
hospitalization of 2 or more employees for medical
treatment.''.
SEC. 305. PROHIBITION ON UNCLASSIFIED CITATIONS.
Section 9 (29 U.S.C. 658) is amended by adding at the end the
following:
``(d) No citation for a violation of this Act may be issued,
modified, or settled under this section without a designation
enumerated in section 17 with respect to such violation.''.
SEC. 306. VICTIMS' RIGHTS.
The Act is amended by inserting after section 9 (29 U.S.C. 658) the
following:
``SEC. 9A. VICTIM'S RIGHTS.
``(a) Rights Before the Secretary.--A victim or the representative
of a victim, shall be afforded the right, with respect to an inspection
or investigation conducted under section 8 to--
``(1) meet with the Secretary regarding the inspection or
investigation conducted under such section before the
Secretary's decision to issue a citation or take no action;
``(2) receive, at no cost, a copy of any citation or
report, issued as a result of such inspection or investigation,
at the same time as the employer receives such citation or
report;
``(3) be informed of any notice of contest or addition of
parties to the proceedings filed under section 10(c); and
``(4) be provided notification of the date and time or any
proceedings, service of pleadings, and other relevant
documents, and an explanation of the rights of the employer,
employee and employee representative, and victim to participate
in proceedings conducted under section 10(c).
``(b) Rights Before the Commission.--Upon request, a victim or
representative of a victim shall be afforded the right with respect to
a work-related bodily injury or death to--
``(1) be notified of the time and date of any proceeding
before the Commission; and
``(2) receive pleadings and any decisions relating to the
proceedings; and
``(3) be provided an opportunity to appear and make a
statement in accordance with the rules prescribed by the
Commission.
``(c) Modification of Citation.--Before entering into an agreement
to withdraw or modify a citation issued as a result of an inspection or
investigation of an incident under section 8, the Secretary shall
notify a victim or representative of a victim and provide the victim or
representative of a victim with an opportunity to appear and make a
statement before the parties conducting settlement negotiations. In
lieu of an appearance, the victim or representative of the victim may
elect to submit a letter to the Secretary and the parties.
``(d) Secretary Procedures.--The Secretary shall establish
procedures--
``(1) to inform victims of their rights under this section;
and
``(2) for the informal review of any claim of a denial of
such a right.
``(e) Commission Procedures.--The Commission shall establish
procedures relating to the rights of victims to be heard in proceedings
before the Commission.
``(f) Definition.--In this section, the term `victim' means--
``(1) an employee, including a former employee, who has
sustained a work-related injury or illness that is the subject
of an inspection or investigation conducted under section 8, or
``(2) a family member (as further defined by the Secretary)
of a victim described in paragraph (1), if--
``(A) the victim dies as a result of a incident
that is the subject of an inspection or investigation
conducted under section 8; or
``(B) the victim sustains a work-related injury or
illness that is the subject of an inspection or
investigation conducted under section 8, and the victim
because of incapacity cannot reasonably exercise the
rights under this section.''.
SEC. 307. RIGHT TO CONTEST CITATIONS AND PENALTIES.
Section 10 (20 U.S.C. 659) is amended--
(1) in the first sentence of subsection (b)--
(A) by inserting ``, with the exception of
violations designated as serious, willful, or
repeated,'' after ``(which period shall not begin to
run'';
(2) in subsection (c)--
(A) in the first sentence--
(i) by inserting after ``that he intends to
contest a citation issued under section (9)''
the following: ``(or a modification of a
citation issued under this section)'';
(ii) by inserting after ``the issuance of a
citation under section 9'' the following:
``(including a modification of a citation
issued under such section)'';
(iii) by inserting after ``files a notice
with the Secretary alleging'' the following:
``that the citation fails properly to designate
the violation as serious, willful, or repeated,
that the proposed penalty is not adequate,
or'';
(B) by inserting after the first sentence, the
following: ``The pendency of a contest before the
Commission shall not bar the Secretary from inspecting
a place of employment or from issuing a citation under
section 9.''; and
(C) by amending the last sentence--
(i) by inserting ``employers and'' after
``Commission shall provide''; and
(ii) by inserting before the period at the
end ``, and notification of any modification of
a citation''.
(3) by adding at the end the following:
``(d) Correction of Serious, Willful, or Repeated Violations;
Abatement Pending Contest and Procedures for a Stay.--
``(1) Period permitted for correction of serious, willful,
or repeated violations.--For each violation which the Secretary
designates as serious, willful, or repeated, the period
permitted for the correction of the violation shall begin to
run upon receipt of the citation.
``(2) Filing of a motion of contest.--The filing of a
notice of contest by an employer--
``(A) shall not operate as a stay of the period for
correction of a violation designated as serious,
willful, or repeated; and
``(B) may operate as a stay of the period for
correction of a violation not designated by the
Secretary as serious, willful, or repeated.
``(3) Criteria and rules of procedure for stays.--
``(A) Motion for a stay.--An employer may file with
the Commission a motion to stay a period for the
correction of a violation designated as serious,
willful, or repeated.
``(B) Criteria.--In determining whether a stay
should be issued on the basis of a motion filed under
subparagraph (A), the Commission shall consider
whether--
``(i) the employer has demonstrated a
substantial likelihood of success on its
contest to the citation;
``(ii) the employer will suffer irreparable
harm absent a stay; and
``(iii) a stay will adversely affect the
health and safety of workers.
``(C) Rules of procedure.--The Commission shall
develop rules of procedure for conducting a hearing on
a motion filed under subparagraph (A) on an expedited
basis. At a minimum, such rules shall provide:
``(i) That a hearing before an
administrative law judge shall occur not later
than 15 days following the filing of the motion
for a stay (unless extended at the request of
the employer), and shall provide for a decision
on the motion not later than 15 days following
the hearing (unless extended at the request of
the employer).
``(ii) That a decision of an administrative
law judge on a motion for stay is rendered on a
timely basis.
``(iii) That if a party is aggrieved by a
decision issued by an administrative law judge
regarding the stay, such party has the right to
file an objection with the Commission not later
than 5 days after receipt of the administrative
law judge's decision. Within 10 days after
receipt of the objection, a Commissioner, if a
quorum is seated pursuant to section 12(f),
shall decide whether to grant review of the
objection. If, within 10 days after receipt of
the objection, no decision is made on whether
to review the decision of the administrative
law judge, the Commission declines to review
such decision, or no quorum is seated, the
decision of the administrative law judge shall
become a final order of the Commission. If the
Commission grants review of the objection, the
Commission shall issue a decision regarding the
stay not later than 30 days after receipt of
the objection. If the Commission fails to issue
such decision within 30 days, the decision of
the administrative law judge shall become a
final order of the Commission.
``(iv) For notification to employees or
representatives of affected employees of
requests for such hearings and shall provide
affected employees or representatives of
affected employees an opportunity to
participate as parties to such hearings.''.
SEC. 308. CONFORMING AMENDMENTS.
(a) Section 17.--Section 17(d) (29 U.S.C. 666(d)) is amended to
read as follows:
``(d) Any employer who fails to correct a violation designated by
the Secretary as serious, willful or repeated and for which a citation
has been issued under section 9(a) within the period permitted for its
correction (and a stay has not been issued by the Commission under
section 10(d)) may be assessed a civil penalty of not more than $7,000
for each day during which such failure or violation continues. Any
employer who fails to correct any other violation for which a citation
has been issued under section 9(a) of this title within the period
permitted for its correction (which period shall not begin to run until
the date of the final order of the Commission in the case of any review
proceeding under section 10 initiated by the employer in good faith and
not solely for delay of avoidance of penalties) may be assessed a civil
penalty of not more than $7,000 for each day during which such failure
or violation continues.''.
(b) Section 11(a).--The first sentence of section 11(a) (29 U.S.C.
660(a)) is amended by--
(1) by inserting ``(or the failure of the Commission,
including an administrative law judge, to make a timely
decision on a request for a stay under section 10(d))'' after
``an order'' ;
(2) by striking ``subsection (c)'' and inserting
``subsections (c) and (d)''; and
(3) by inserting ``(or in the case of a petition from a
final Commission order regarding a stay under section 10(d), 15
days)''after ``sixty days''.
SEC. 309. CIVIL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) is amended--
(1) in subsection (a)--
(A) by striking ``$70,000'' and inserting
``$120,000'';
(B) by striking ``$5,000'' and inserting
``$8,000''; and
(C) by adding at the end the following: ``If such a
violation causes the death of an employee, such civil
penalty amounts shall be increased to not more than
$250,000 for each such violation, but not less than
$50,000 for each such violation, except that for an
employer with 25 or fewer employees such penalty shall
not be less than $25,000 for each such violation.'';
(2) in subsection (b)--
(A) by striking ``$7,000'' and inserting
``$12,000''; and
(B) by adding at the end the following: ``If such a
violation causes the death of an employee, such civil
penalty amounts shall be increased to not more than
$50,000 for each such violation, but not less than
$20,000 for each such violation, except that for an
employer with 25 or fewer employees such penalty shall
not be less than $10,000 for each such violation.'';
(3) in subsection (c), by striking ``$7,000'' and inserting
``$12,000'';
(4) in subsection (d), by striking ``$7,000'' and inserting
``$12,000'';
(5) by redesignating subsections (e) through (l) as
subsections (f) through (m), respectively; and
(6) in subsection (j) (as redesignated by paragraph (5)),
by striking ``$7,000'' and inserting ``$12,000;''.
(b) Inflation Adjustment.--Section 17 (29 U.S.C. 666) (as amended
by subsection (a)) is further amended by inserting after subsection (d)
the following:
``(e) Amounts provided under this section for civil penalties shall
be adjusted by the Secretary at least once during each 4-year period to
account for the percentage increase or decrease in the Consumer Price
Index for all urban consumers during such period.''.
SEC. 310. OSHA CRIMINAL PENALTIES.
(a) In General.--Section 17 (29 U.S.C. 666) (as amended by section
309) is further amended--
(1) by amending subsection (f) to read as follows:
``(f)(1) Any employer who knowingly violates any standard, rule, or
order promulgated under section 6 of this Act, or of any regulation
prescribed under this Act, and that violation caused or contributed to
death to any employee, shall, upon conviction, be punished by a fine in
accordance with section 3571 of title 18, United States Code, or by
imprisonment for not more than 10 years, or both, except that if the
conviction is for a violation committed after a first conviction of
such person under this subsection or subsection (i), punishment shall
be by a fine in accordance with section 3571 of title 18, United States
Code, or by imprisonment for not more than 20 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any officer or director.'';
(2) in subsection (g), by striking ``fine of not more than
$1,000 or by imprisonment for not more than six months,'' and
inserting ``fine in accordance with section 3571 of title 18,
United States Code, or by imprisonment for not more than 2
years,'';
(3) in subsection (h), by striking ``fine of not more than
$10,000, or by imprisonment for not more than six months,'' and
inserting ``fine in accordance with section 3571 of title 18,
United States Code, or by imprisonment for not more than 5
years,'';
(4) by redesignating subsections (j) through (m) as
subsections (k) through (n), respectively; and
(5) by inserting after subsection (i) the following:
``(j)(1) Any employer who knowingly violates any standard, rule, or
order promulgated under section 6, or any regulation prescribed under
this Act, and that violation causes or contributes to serious bodily
harm to any employee but does not cause death to any employee, shall,
upon conviction, be punished by a fine in accordance with section 3571
of title 18, United States Code, or by imprisonment for not more than 5
years, or by both, except that if the conviction is for a violation
committed after a first conviction of such person under this subsection
or subsection (e), punishment shall be by a fine in accordance with
section 3571 of title 18, United States Code, or by imprisonment for
not more than 10 years, or by both.
``(2) For the purpose of this subsection, the term `employer'
means, in addition to the definition contained in section 3 of this
Act, any officer or director.
``(3) For purposes of this subsection, the term `serious bodily
harm' means any circumstance, deficiency, or shortfall that could
result in an injury or illness including, risk of death,
unconsciousness, physical disfigurement, or loss or impairment (whether
permanent or temporary) of the function of a bodily member, organ, or
mental facility.''.
(b) Jurisdiction for Prosecution Under State and Local Criminal
Laws.--Section 17 (29 U.S.C. 666) (as amended by subsection (a)) is
further amended by adding at the end the following:
``(o) Nothing in this Act shall preclude a State or local law
enforcement agency from conducting criminal prosecutions in accordance
with the laws of such State or locality.''.
TITLE IV--EFFECTIVE DATE
SEC. 401. EFFECTIVE DATE.
(a) General Rule.--Except as provided for in subsection (b), this
Act and the amendments made by this Act shall take effect not later
than 90 days after the date of the enactment of this Act.
(b) Exception for States and Political Subdivisions.--The following
are exceptions to the effective date described in subsection (a):
(1) A State that has a State plan approved under section 18
(29 U.S.C. 667) shall amend its State plan to conform with the
requirements of this Act and the amendments made by this Act
not later than 12 months after the date of the enactment of
this Act. The Secretary of Labor may extend the period for a
State to make such amendments to its State plan by not more
than 12 months, if the State's legislature is not in session
during the 12-month period beginning with the date of the
enactment of this Act. Such amendments to the State plan shall
take effect not later than 90 days after the adoption of such
amendments by such State.
(2) This Act and the amendments made by this Act shall take
effect not later than 36 months after the date of the enactment
of this Act in a State, or a political subdivision of a State,
that does not have a State plan approved under section 18 (29
U.S.C. 667).
______
------
[The U.S. Senate, Committee on Health, Education, Labor,
and Pensions Report, ``Discounting Death,'' may be accessed at
the following Internet address:]
http://www.philaposh.org/pdf/2008KennedyReport.pdf
______
Office of the Governor,
State Capitol,
Cheyenne, WY, March 11, 2010.
Hon. George Miller, Chairman,
Committee on Education and Labor, U.S. House of Representatives,
Washington, DC 20515.
Dear Chairman Miller: In the spring of 2009, my office formed a
Workplace Safety Task Force to determine root causes of why Wyoming
ranked number 1 in the nation in workplace fatalities. We were
fortunate to secure the assistance of two occupational epidemiologist
from the National Institute of Occupational Health and Safety (NIOSH)
of Anchorage, Alaska who made several trips to Wyoming to help the Task
Force collect and analyze the data from a variety of sources.
The Task Force divided into four sub-committees made, Oil and Gas,
Transportation, Construction and Data and each subcommittee made
recommendations which were:
Oil and Gas, Construction: increase OSHA penalties consistent with
HR 2067,
Transportation: raise penalty for violation of our secondary
seatbelt law,
Data: engage the services of a full time occupational
epidemiologist.
Wyoming HB 93, taken from HR-2067, SEC. 309, would have increased
the civil penalties to the same level proposed by the Congressional
Bill. Unfortunately the Wyoming Bill was defeated by the Wyoming
Senate.
As Governor, I would support SEC. 309 of HR 2067 as proposed. It is
my belief that with the increased OSHA Civil Penalties, it will
strongly encourage businesses, particularly small employers, to seek
courtesy inspections from OSHA, thereby ultimately reducing the number
of workplace fatalities and injuries.
Should you need additional information, please do not hesitate to
contact my office.
Best regards,
Dave Freudenthal, Governor.
______
Prepared Statement of Peg Seminario, Director,
Safety and Health, AFL-CIO
Chairman Woolsey, Ranking Member McMorris Rodgers and other members
of the committee, I appreciate the opportunity to submit this statement
on behalf of the AFL-CIO in strong support of the Protecting America's
Workers Act--legislation to strengthen and improve the Occupational
Safety and Health. Act.
Nearly four decades ago, Congress enacted the Occupational Safety
and Health Act (OSH Act) of 1970, promising America's workers the right
to a safe job. While progress has been made since the OSH Act was
passed, the toll of workplace injuries, illnesses and fatalities
remains enormous. In 2008, 5,071 workers were killed on the job--an
average of 14 deaths a day. An estimated 50,000 workers died from
occupational diseases and millions more were injured. Major hazards
including silica, toxic chemicals, infectious diseases and ergonomic
hazards have not been addressed.
For many groups of workers, workplace conditions are particularly
dangerous. Fatalities and injuries among immigrant and Latino workers
are much greater than among other groups of workers due to their
concentration in hazardous jobs, their vulnerability because of
immigration status and their lack of union representation. Workers in
the construction industry continue to be at especially high risk, with
fatality rates much higher than those of workers in other industrial
sectors.
Millions of workers still lack basic OSHA protections and rights.
More than 8 million state and local public employees in 25 states are
not covered by the OSH Act. Flight attendants, farm workers and other
groups of workers are caught in a jurisdictional limbo with limited or
no legal protection. And for federal workers, OSHA has no authority to
enforce the correction of cited violations.
Penalties for serious and willful violations of the job safety law
are weak, even in cases in which workers are killed or injured. The
median OSHA penalty in cases involving a worker's death is less than
$4,000, which is clearly inadequate and provides no deterrence.
Protections for workers who report hazards or job injuries are also
weak. There is a growing trend among employers to attempt to shift the
responsibility for safety and health onto workers, by adopting
behavioral safety and injury discipline programs, instead of fixing
workplace hazards. Workers' and unions' rights to participate in OSHA
enforcement actions are limited, resulting in settlements that fail to
protect workers.
Under the Obama administration, OSHA is getting back to its mission
of protecting workers. The agency is moving to issue new standards, to
strengthen enforcement and to ensure workers' rights. But many of the
deficiencies and weaknesses in OSHA protection can only be addressed
through changes in the law.
The Protecting America's Workers Act (PAWA)--H.R. 2067, S. 1580--
would address major weaknesses in the OSH Act and provide workers
stronger job safety rights and protections. The legislation would
extend coverage to millions of workers, including public sector
workers, who currently lack protection. It would improve anti-
discrimination protections so workers can raise job safety concerns
without fear of retaliation, and strengthen worker and victim rights.
And the legislation would provide stronger civil and criminal penalties
fro company that put workers in serious danger and repeatedly violate
job safety standards.
The AFL-CIO strongly supports all the provisions of this
legislation. This hearing and our testimony today will focus on PAWA's
penalty provisions--why they are needed and how they will enhance the
protection of workers' safety and health.
OSHA Enforcement and Penalties are Too Weak to Create an Incentive to
Improve Conditions and Deter Violations
The Occupational Safety and Health Act places the responsibility on
employers to protect workers from hazards and to comply with the law.
The law relies largely on the good faith of employers to address
hazards and improve conditions. For this system to work, it must be
backed up with strong and meaningful enforcement. But at present, the
Occupational Safety and Health Act and the OSHA enforcement program
provide limited deterrence to employers who put workers in danger. OSHA
inspections and oversight of workplaces are exceedingly rare. There are
no mandatory inspections even for the most dangerous industries or
workplaces. In FY 2009, there were approximately 2,200 federal and
state OSHA inspectors combined. OSHA has the capacity and resources to
inspect workplaces on average once every 94 years--once every 137 years
in the federal OSHA states.
Over the years OSHA's oversight capacity was diminished, as the
number of inspectors declined at the same time the workforce increased.
The FY 2010 appropriations provided for an increase in OSHA's
enforcement staff and an increase in funding for OSHA state plans, and
returned federal enforcement staffing levels back to their FY 2001
levels. Even with this recent increase, the number of federal OSHA
enforcement staff today is 450 fewer than it was in FY 1980, while the
size of the workforce is 40 percent larger than it was at that time.
Since there is no regular oversight, strong enforcement when
workplaces are inspected and violations are found is even more
important. But the penalties provided in the OSH Act are weak. Serious
violations of the law (those that pose a substantial probability of
death or serious physical harm to workers) are subject to a maximum
penalty of $7,000. Willful and repeated violations carry a maximum
penalty of $70,000 and willful violations a minimum of $5,000. These
penalties were last adjusted by the Congress in 1990 (the only time
they have been raised). Unlike all other federal enforcement agencies
(except the IRS), the OSH Act is exempt from the Federal Civil
Penalties Inflation Adjustment Act, so there have not even been
increases in OSHA penalties for inflation, which has reduced the real
dollar value of OSHA penalties by about 40%. For OSHA penalties to have
the same value as they did in 1990, they would have to be increased to
$11,600 for a serious violation and to $116,000 for a willful violation
of the law.
By comparison, the Mine Safety and Health Act requires mandatory
inspections--four per year at underground mines and two per year at
surface mines. As a result of Congressional action following the Sago
mine disaster and other disasters in 2006, the Mine Act now provides
for much tougher penalties. The MINER Act increased maximum civil
penalties for violations to $60,000 (from $10,000), which may be
assessed on an instance-by-instance basis. The 2006 mine safety
legislation also added a new provision for ``flagrant'' violations,
with a maximum civil penalty of $220,000. Since the MINER Act was
passed, there has been a significant increase in MSHA penalties. In CY
2009, MSHA assessed $141.2 million in penalties for violations,
compared to $35 million assessed in CY 2006, before the penalty
provisions of the MINER Act went into effect.
The maximum civil penalties provided for under the OSH Act are
rarely assessed. Indeed, just the opposite is the case. In FY 2009, the
average penalty for a serious violation of the law was $965 for federal
OSHA and $781 for the state OSHA plans combined. Again this is the
average penalty for violations that pose a substantial probability of
death or serious physical harm. California had the highest average
penalty for serious violations and South Carolina had the lowest. Both
of these are state plan states. California amended its OSHA law in 2000
to increase penalties, with the maximum penalty for a serious violation
in that state set at $25,000 compared to $7,000 maximum penalty under
federal OSHA and the other state plans.
For violations that are ``other'' than serious, which also carry a
statutory maximum under the OSH Act of $7,000, the average federal OSHA
penalty was just $234. Clearly, for most employers these levels of
penalties are not sufficient to change employer behavior, improve
workplace conditions or deter future violations.
OSHA penalties for violations that are willful or repeated also
fall well below the maximum statutory penalties. For both willful and
repeat violations, the OSH Act provides a maximum penalty of $70,000
per violation. For violations that are willful, a $5,000 mandatory
minimum penalty is also prescribed. In FY 2009, the average federal
OSHA penalty for a willful violation was $34,271, and the average
willful penalty for state plans was $20,270. For repeat violations, the
average federal OSHA penalty was only $3,871 and for state plans the
average was $1,757, a fraction of the statutory maximum penalty for
such violations.
Even in cases where workers are killed, penalties are abysmally
low. According to OSHA inspection data, the average serious penalty in
fatality cases for FY 2009 was just $2,425 for federal OSHA and $3,805
for the state plans combined. (The state plan average includes
penalties for California which higher due to the higher statutory
penalties provided for under the Cal/OSHA law). The average total
penalty assessed in fatality cases was just $7,668 nationally ($8,152
for federal OSHA and $7,032 for the OSHA state plans). These averages
include open cases, which when finally resolved, will result in a
reduction in these average penalty levels.
A state-by-state review shows that there is wide variability in
penalties assessed in cases involving worker deaths, with the penalties
in some states exceedingly low. For example, in FY 2009, in the state
of Colorado, the average penalty in worker fatality cases was $25,309,
but in the state of South Carolina the average penalty in such cases
was only $809, the lowest in the nation.
The overall average penalties for fatalities include a number of
high penalty cases, which can greatly increase the average. For
example, in Colorado in FY 2009, a proposed penalty of $128,500 in a
fatality case at a MillerCoors brewery, greatly increased the average
penalty in fatality cases. The median penalty, which is the mid-point
of penalties, is much more representative of the typical penalty in
fatality cases, and is much lower.
In 2008 the Senate Committee on Health, Education, Labor and
Pensions Majority staff conducted an in-depth investigation of OSHA
enforcement in fatality cases. Their study--Discounting Death: OSHA's
Failure to Punish Safety Violations That Kill Workers--analyzed
detailed enforcement data for thousands of fatality investigations and
individual case files for hundreds of enforcement cases. It found that
OSHA penalties in cases involving worker deaths were consistently low
and routinely reduced in settlement negotiations. For all federal OSHA
fatality investigations conducted in FY 2007, the median initial
penalty was just $5,900. But after negotiation and settlement, the
median final penalty for workplace fatalities was reduced to only
$3,675. For willful violations in fatality cases, the final median
penalty was $29,400, less than half the statutory maximum of $70,000
for such violations.
The following examples are typical of OSHA enforcement and
penalties in many fatality cases:
In January 2009, a worker was killed in a trench cave-in in
Freyburg, Ohio. The victim Andrew Keller was 22 years old. The company,
Tumbusch Construction, was cited for 3 serious violations and penalized
$6,300. The penalties were reduced to $4,500. Six months later, in June
2009, OSHA found similar violations at another jobsite of Tumbusch
Construction. This time the company was cited for both serious and
willful violations with a total of $53,800 in penalties proposed. The
company has contested the violations.
In July 2009, in Batesville, Texas, one worker was killed and two
workers injured when natural gas was ignited during oxygen/acetylene
cutting on a natural gas pipeline. The employer--L&J Roustabout, Inc.
was cited for 3 serious violations with $3,000 in penalties. The case
was settled for $1,500.
In August 2009, in Lamar, South Carolina, Andrea Taylor, 28, an
employee of Affordable Electric was killed on the job. South Carolina
OSHA cited the company for 5 serious violations of electrical and lock-
out standards with a proposed penalty of $6,600. In an October 2009
settlement, 3 of the violations were dropped and the penalties reduced
to $1,400.
In August 2009, at SMC, Inc. in Odessa, Texas, a worker was caught
in the shaft of milling machine and killed. The company was cited for 1
serious violation. The $2,500 proposed penalty was reduced at
settlement to $2,000.
In Michigan, in 2006, Midwest Energy Cooperative was fined $4,200
for 2 serious violations for excavation and safety program requirements
in the death of Danny Young, 27, who was killed when a backhoe hit a
gas line that exploded. The case was settled for $2,940.
What kind of message does it send to employers, workers and family
members, that the death of a worker caused by a serious or even
repeated violation of the law warrants only a penalty of a few
thousands dollars? It tells them that there is little value placed on
the lives of workers in this country and that there are no serious
consequences for violating the law.
The OSH Act and OSHA Enforcement Policies Discount Penalties for
Violations Even in Cases of Worker Death
So why are OSHA penalties for workplace fatalities and job safety
violations so low? The problems are largely systemic and start with the
OSH Act itself. The Act sets low maximum penalty levels, particularly
for serious violations, which carry a maximum of $7,000, clearly not a
deterrent for many companies. For example, in 2008, a Walmart store
employee in Valley Stream, New York was trampled to death, when the
company failed to provide for crowd control at a post-Thanksgiving
sale. The company was cited for one serious violation and penalized
$7,000, the maximum amount for a serious violation.
For a willful or repeat violation the maximum penalty is $70,000.
In assessing penalties, under the Act, employer size, good faith,
history, and gravity of the violation are to be taken into
consideration.
Throughout its history, OSHA procedures for considering these four
factors have resulted in proposed penalties that are substantially
below the maximum penalties. The agency starts with a gravity based
penalty, which is then reduced by specified percentages for each of the
other 3 factors (except in certain circumstances). Under OSHA's current
penalty policy, for high gravity serious violations, except in rare
cases, OSHA starts with a base of $5,000, not $7,000 to determine the
penalty. This is true even for fatality cases, which under OSHA policy
are supposed to be classified as high-gravity. In fatality cases, no
reductions are allowed for good faith, but penalty reductions are still
allowed for employer size and history.
Under the penalty policy, reductions for employer size range from
20 percent (for employers with 101-250 employees) to 60 percent (for
employers with 1-25 employees), but a larger reduction of 80 percent
reduction is provided for serious violations that are willful for
employers with 10 or fewer employees. The reduction for no history of
serious, willful or repeat violations in the past 3 years is an
additional 10 percent. So in many cases there is an automatic 30 to 90
percent discount in penalties, regardless of the gravity of the
violations that are found.
OSHA's general policy is to group multiple instances of the same
violation into one citation, with one penalty. So, for example, if five
workers are injured due to an employer's failure to provide guarding
for machines, the employer will only be cited once for the violation,
even though five workers were hurt. This policy further minimizes the
level of overall penalties in enforcement cases, including fatalities.
In 1986, OSHA instituted a policy to provide for instance-by-
instance penalties in those cases where there was a flagrant and
willful violation of the law. This ``egregious'' policy as it came to
be known, was designed to penalize employers who put workers at risk
and to send a message to other employers about the potential
consequences of not complying with the law. Over the years, the
egregious policy has had some positive impact, particularly when used
as part of an industry-wide enforcement initiative, as was the case in
the 1980's and early 1990's, when it was used for widespread injury
reporting and ergonomic hazard violations. But in recent years, the
impact of the policy was reduced, as Bush Administration appointees to
the Occupational Safety and Health Review Commission (OSHRC) took an
exceedingly restrictive view of the types of violations that may be
cited on an instance-by-instance basis.
The initial citations and penalties in OSHA enforcement cases, weak
to begin with, are reduced even further in the resolution of cases. Due
to limited staff and resources, OSHA area directors and Department of
Labor solicitors are under tremendous pressure to settle cases and
avoid time consuming and costly litigation. In both informal
settlements by the agency, and formal settlements after employer
challenges to OSHA citations, penalties are routinely cut by another
30--50 percent.
Another way the impact of OSHA enforcement is minimized is through
downgrading the classification of citations from willful to serious,
which greatly reduces civil penalties and undermines the possibility of
criminal prosecution under the OSH Act. In some cases OSHA has utilized
a practice of changing the characterization of willful or repeat
violations to ``unclassified,'' even though the OSH Act makes no
provision for the issuance of such citations. Employers will seek
``unclassified'' violations, particularly in fatality cases, not only
to undermine the potential for criminal prosecution, but to lessen the
impact of the violations in any civil litigation and to keep willful or
repeat violations off their safety and health record.
The use of these ``unclassified'' violations may allow for
settlements with higher monetary penalties or additional safety and
health requirements. But these ``unclassified'' violations greatly
weaken the deterrent effect of OSHA enforcement to prevent future
occurrence of similar violations.
For example, in a fatality investigation of a worker death at
McWane Inc. Atlantic States Cast Iron Pipe Company in March 2000, OSHA
downgraded four repeat violations to ``unclassified'' violations, even
though the company had been cited previously for serious violations in
a fatality that occurred at the same facility the year before. Within 6
months of these citations, 2 more workers were killed at other McWane
facilities. The company was subsequently prosecuted for a series of
violations at multiple facilities, with most of the criminal charges
being brought under environmental laws due to weaknesses in the OSH
Act.
In another case that involved a planned inspection at the Bayer
Cropscience chemical plant in Institute, West Virginia, in 2005 OSHA
originally cited the company for 2 willful violations and 8 serious
violations of the process safety management (PSM) standard and related
requirements and proposed $135,000 in penalties. In a formal settlement
the serious violations were deleted, and the 2 willful violations were
changed to ``unclassified'' with a $110,000 final penalty assessed.
In August 2008, there was a powerful explosion and fire at the
Bayer facility that killed two plant operators and threatened the
community. The explosion occurred when there was a runaway reaction
during the restart of a methomyl unit. Methomyl is a highly toxic
substance that is sold as a pesticide. In the preliminary report on its
investigation of the explosion, the Chemical Safety Board found
significant deficiencies in process safety management that according to
the Board likely contributed to the accident. The CSB also found that
the explosion could have been catastrophic. Within 80 feet of the site
of the explosion, there is a 37,000 pound capacity tank of methyl
isocyanate (MIC), the same chemical that caused the deaths of thousands
in the toxic gas release in Bhopal, India in 1994. The CSB found
explosion debris near the MIC unit, which if compromised could have led
to a catastrophic outcome.
The OSHA investigation of the 2008 Bayer explosion found extensive
violations of the process safety management standard. OSHA issued 11
serious and 2 repeat violations, but no willful violations, and
proposed $143,000 in penalties. The company contested all of the
citations.
OSHA Criminal Penalties Are Weak and Provide Almost No Deterrence
If the civil penalties under the Occupational Safety and Health Act
provide little deterrence or incentive for employers, the criminal
penalties are even weaker. Under the Occupational Safety and Health
Act, criminal penalties are limited to those cases where a willful
violation of an OSHA standard results in the death of a worker, and to
cases of false statements or misrepresentations. The maximum period of
incarceration upon conviction is six months in jail, making these
crimes a misdemeanor.
The criminal penalty provisions of the OSH Act have never been
updated since the law was enacted in 1970 and are weaker than virtually
every other safety and environmental law. For example, since 1977 the
Mine Safety and Health Act has provided for criminal penalties for
willful violations of safety and health standards and knowing
violations for failure to comply with orders or final decisions issued
under the law. Unlike the OSH Act, these criminal penalties are not
limited to cases involving a worker's death.
Federal environmental laws have also been strengthened over the
years to provide for much tougher criminal penalties. The Clean Air
Act, the Clean Water Act, and the Resource Conservation and Recovery
Act all provide for criminal prosecution for knowing violations of the
law, and for knowing endangerment that places a person in imminent
danger of death or serious bodily harm, with penalties of up to 15
years in jail. Again, there is no prerequisite for a death or serious
injury to occur.
The weak criminal penalties under the OSH Act result in relatively
few prosecutions. With limited resources, federal prosecutors are not
willing or able to devote significant time or energy to these cases.
According to information provided by the Department of Labor, since the
passage of the Act in 1970, only 79 cases have been prosecuted under
the Act, with defendants serving a total of 89 months in jail. During
this time, there were more than 360,000 workplace fatalities according
to National Safety Council and BLS data, about 20 percent of which were
investigated by federal OSHA. In FY 2009, there were 11 cases referred
by DOL for possible criminal prosecution. The Department of Justice
(DOJ) has declined to prosecute 2 of these cases; the other 9 are still
under review by DOJ.
By comparison, according to EPA in FY 2009 there were 387 criminal
enforcement cases initiated under federal environmental laws and 200
defendants charged resulting in 76 years of jail time and $96 million
in penalties--more cases, fines and jail time in one year than during
OSHA's entire history. The aggressive use of criminal penalties for
enforcement of environmental laws and the real potential for jail time
for corporate officials, serve as a powerful deterrent to environmental
violators.
In recent years the Justice Department launched a new Worker
Endangerment Initiative that focuses on companies that put workers in
danger while violating environmental laws. The Justice Department
prosecutes these employers using the much tougher criminal provisions
of environmental statutes. Under the initiative, the Justice Department
has prosecuted employers such as McWane, Inc. a major manufacturer of
cast iron pipe, responsible for the deaths of several workers; Motiva
Enterprises, which negligently endangered workers in an explosion that
killed one worker, injured eight others and caused major environmental
releases of sulfuric acid; and British Petroleum for a 2005 explosion
at a Texas refinery that killed 15 workers.
These prosecutions have led to major criminal penalties for
violations of environmental laws, but at the same time underscore the
weaknesses in the enforcement provisions of the Occupational Safety and
Health Act.
In the Motiva case, the company pleaded guilty to endangering its
workers under the Clean Water Act and was ordered to pay a $10 million
fine. The company also paid more than $12 million in civil penalties
for environmental violations. In contrast, in 2002 following the
explosion, OSHA initially cited the company for 3 serious and 2 willful
violations with proposed penalties of $161,000. As a result of a formal
settlement, the original serious and willful citations were dropped and
replaced with ``unclassified'' citations carrying $175,000 in
penalties, greatly undermining any possibility of criminal enforcement
under the OSH Act.
In the BP Texas City refinery disaster, where 15 workers were
killed and another 170 injured in 2005, under a plea agreement, the
company pleaded guilty to a felony violation of the Clean Air Act and
agreed to pay $50 million in penalties and serve a 3-year probation. BP
also agreed to pay $100 million in criminal penalties for manipulating
the propane market. But BP paid no criminal penalties under the OSH
Act, even though 15 workers died and OSHA issued hundreds of civil
citations for willful, egregious violations of the law. And under the
OSH Act, even if BP had paid criminal penalties, it would have been a
misdemeanor, not a felony. Instead, BP paid $21 million in civil
penalties in a settlement reached with OSHA. These civil penalties
issued by OSHA were not sufficient to change BP's practices. In
October, 2009, OSHA found that BP had failed to abate the hazardous
conditions that caused the 2005 explosion. OSHA issued 270 notices of
failure to abate previous hazards, cited the company for 439 new
willful violations and proposed $87.4 million in fines--the largest in
OSHA's history. But under the OSHAct, OSHA has no authority to take
criminal action against BP for these latest violations.
OSHA and the Congress Should Act to Strengthen Enforcement and
Penalties for Job Safety Violations
Current OSHA enforcement and penalties are far too weak to provide
meaningful incentives for employers to address job hazards or to deter
violations. As a result, workers are exposed to serious hazards that
put them in danger, and cause injury and death.
Under the Obama Administration, OSHA is taking action to make
enforcement more effective and to enhance penalties for violations that
put workers in serious danger and cause death and injury.
The agency is in the process of overhauling its penalty policy to
more fully utilize its the full statutory authority to impose more
meaningful penalties for serious, willful and repeat violations of the
law, particularly in cases involving worker deaths.
The Enhanced Enforcement Program (EEP) is being changed and
strengthened to provide for enhanced enforcement, stiffer penalties and
follow-up for employers who persistently violate the law. The new
Severe Violators Enforcement program is expected shortly.
Federal OSHA is also conducting in-depth reviews of the OSHA state
plans, including the enforcement and penalty policies and practices in
each of the state plan states.
These initiatives will improve and strengthen OSHA enforcement. But
they are not enough and cannot address the deficiencies in the OSH Act
itself. Congressional action is needed.
The Protecting America's Workers Act (H.R. 2067) introduced by Rep.
Lynn Woolsey and Rep. George Miller would strengthen the enforcement
provisions of the Occupational Safety and Health Act. It would increase
civil and criminal penalties to provide more meaningful penalties for
those who violate the law and provide a greater deterrent to prevent
future violations that put workers in danger.
Specifically the bill would update the base penalties amounts in
the OSH Act to adjust for inflationary increases since 1990 when the
penalties were last raised. The bill would increase the penalties for
serious violations to $12,000 from $7,000 and those for repeat and
willful violations to $120,000 from $70,000, and provide for
inflationary adjustments in the future.
To ensure that penalties for violations that result in worker
deaths are more than a slap on the wrist, the bill sets higher
penalties for such violations. For serious violations that result in a
worker death a maximum penalty of $50,000 and a minimum penalty of
$20,000 is provided, with a minimum of $10,000 for smaller employers.
For willful and repeat violations related to worker deaths, a maximum
penalty of $250,000 and minimum of $50,000 is provided, with a minimum
of $25,000 for small employers.
These proposed penalties are modest in comparison to those in other
safety and health and environmental statutes. For example, in 2006 the
Congress adopted the MINER Act which set the penalty for serious mine
safety violations at $60,000 and penalties for flagrant violations at
$220,000.
The bill would prohibit the use of ``unclassified'' citations for
violations of the law to ensure that the nature of a violation is
specified, and the employer's record of past history is clear.
PAWA also properly strengthens the criminal provisions of the
Occupational Safety and Health Act, which have not been modified since
the Act's passage in 1970. The bill would make criminal violations a
felony, instead of a misdemeanor as is now the case, making it more
worthwhile for prosecutors to pursue these violations. PAWA also
expands the criminal provisions to cases where violations cause serious
injury to workers. And it expands the criminal provisions to apply to
all responsible corporate officers, not just the top officer or
corporation itself. These enhanced criminal provisions will provide a
greater incentive for management officials to exercise management
responsibility over job safety and health, and give OSHA and the
Department of Justice the tools needed to prosecute corporations and
officials who cause the injury or death or workers.
The Protecting America's Workers Act is a good, sound bill that
should be enacted into law. The AFL-CIO urges the committee to move
quickly to report this legislation.
Four decades after the passage of the Occupational Safety and
Health Act, its time for the country and the Congress to keep the
promise to workers to protect them death, injury and disease on the
job.
______
Prepared Statement of the American Industrial Hygiene Association
Chairwoman Woolsey and Members of the Subcommittee: The American
Industrial Hygiene Association (AIHA) is pleased to submit the
following comments to the House Committee on Education and labor--
Subcommittee on Workforce Protections on today's hearing to discuss
legislation that would revise penalties under the Occupational Safety
and Health Act.
AIHA is the premier association serving the needs of professionals
involved in occupational and environmental health and safety practicing
industrial hygiene in industry, government, labor, academic
institutions, and independent organizations. The AIHA mission is to
promote healthy and safe environments by advancing the science,
principles, practice, and value of industrial and occupational hygiene.
AIHA is not only committed to protecting and improving worker health,
but the health and well-being of adults and children in our
communities. One of AIHA's goals is to bring ``good science'' and the
benefits of our workplace experience to the public policy process
directed at worker health and safety.
As the professionals entrusted to assist employees and employers in
making the workplace healthier and safer, AIHA is particularly pleased
to submit comments on the issue of civil and criminal penalties.
AIHA would also like to thank the Chairwoman and members of the
Subcommittee on behalf of the millions of Americans, both employees and
employers who desire a healthy and safe workplace, for your involvement
in addressing this issue. Your leadership is critical to improving this
country's record of workplace-related injury and illness impacting
workers, their families, and our communities.
Over the course of the last ten years, there have been numerous
bipartisan legislative proposals to amend the Occupational Safety and
Health Act to increase the penalty provisions, both civil and criminal,
for those who violate OSHA rules and regulations that result in serious
injury or a workplace fatality. While few of these proposals have made
their way into law, it goes without saying that the sponsors of these
measures all had the same goal--to assure the health and safety of
every worker. AIHA shares this goal.
In a position statement and white paper first adopted by AIHA more
than ten years ago, AIHA stated that ``OSHA penalties, including
criminal penalties, are woefully inadequate and should be at least as
stringent as penalties for violations of environmental laws''. AIHA's
position on this issue has not changed over the years.
With introduction of H.R. 2067, the Protecting America's Worker
Act, in this session of Congress, AIHA again reviewed the section
addressing the issue of civil and criminal penalties and provided the
following comments:
AIHA is supportive of efforts to increase penalties on those
employers that willfully violate OSH laws resulting in a fatality. AIHA
supports language that makes ``corporate officers'' responsible. AIHA
is also supportive of making willful violations that result in a
fatality a felony rather than a misdemeanor. OSHA penalties and
enforcement should be enhanced to penalize violators who willfully put
workers in serious danger and cause death and injury.
Employers and others who cause the death of an employee by
deliberately violating the law should be held accountable with
something more than a slap on the wrist. Amending the OSH Act to
address the issue of civil and criminal penalties is long overdue. AIHA
went on to say, however, that with increased penalties AIHA recommended
there be additional emphasis on correctly identifying the person who
was truly responsible for the willful violation. AIHA is concerned the
health and safety professional will become the ``fall guy'' even if an
investigation shows these individuals were making efforts to comply
with federal law and their recommendations were overruled or ignored by
those with more authority.
Proposed Changes to HR 2067 Penalty Provisions
AIHA understands the sponsors of HR 2067 intend to propose several
changes to the original legislation regarding the civil and criminal
penalty sections.
Civil Penalties
The proposed changes ``would eliminate the $50,000 penalty for
fatalities associated with the ``other than serious'' category of
violations--the lowest gravity violation under the Act. By definition
``other than serious violations'' are low gravity violations and not
linked to fatalities. The proposal also would eliminate the $50,000
penalty for fatalities associated with failure to abate. Failure to
abate violations are assessed on a daily basis for each day the
violation continues, and at a rate of $12,000 per day, the $50,000
could inadvertently serve as a ceiling after only 5 days of
violations''.
AIHA offers our support for this proposed change.
Criminal Penalties
Proposed changes ``would alter the mens rea (mental state)
requirements for a criminal case from ``willful'' to ``knowing.'' Under
the introduced PAWA, an employer cannot be convicted under the criminal
law unless that employer has acted ``willfully'' and such willful act
caused the death or serious injury to a worker. This requires proof
that an employer knew not only that its actions were wrong, but that
they were unlawful as well. This ``willful'' standard is not a familiar
one in the criminal law context, and the norm is to require a
``knowing'' standard of proof in which an actor knows that his or her
conduct was wrong. Under this standard, employers cannot escape
liability by claiming that they did not know what the law required.
Note: under either standard a prosecutor would still have to prove that
an actor is guilty beyond a reasonable doubt.''
AIHA offers our support for this proposed change.
Another proposed change ``would alter the definition of employer
(who could be subject to criminal penalties) from ``any responsible
corporate officer'' to an ``officer or director.'' Under current law,
only a corporation or sole proprietor can be liable for criminal
penalties. The introduced PAWA attempts to broaden this definition so
high-level officials (individuals) who act criminally can be
prosecuted. The change to ``officer or director'' simply clarified that
the criminal penalties can reach up to the higher levels of a company,
providing that an officer or director has engaged in criminal conduct
that causes the death or serious injury of a worker.''
AIHA offers our support for this proposed change.
In AIHA's original comments on HR 2067 we raised the concern that
there be additional emphasis on correctly identifying the person who
was truly responsible for the willful violation. AIHA was concerned the
health and safety professional would become the ``fall guy'' even if an
investigation showed these individuals were making efforts to comply
with federal law and their recommendations were overruled or ignored by
those with more authority. AIHA is pleased the sponsors of HR 2067 have
agreed this section was somewhat vague and language was needed to
assure all individuals are responsible for workplace health and safety.
There continues to be much debate on whether or not criminal
penalties are adequate to deter health and safety violations. While
this debate will likely continue, AIHA supports efforts to take the
next step in addressing this issue by raising both civil and criminal
penalties.
There are also those who argue that OSHA has been much too lenient
in allowing for penalties to be lowered for violations, but the fact is
the agency has been forced to negotiate lower penalties for various
reasons, including a lack of resources. It is the hope of AIHA that
Congress recognizes this problem and provides adequate resources. AIHA
still remains concerned that this lack of resources will force the
agency to appropriate already scarce resources from other sectors
within the agency in order to adequately investigate violations that
are both civil and criminal.
Conclusion
AIHA is aware there may be many additional thoughts that have been,
or will be, discussed when addressing specific sections of HR 2067.
AIHA stands ready to assist you and Congress in every way possible in
developing solutions that will best protect workers.
______
Prepared Statement of Hon. Thomasina V. Rogers, Chairman,
Occupational Safety and Health Review Commission
Thank you for requesting a statement for the record on the subject
of this hearing, the penalty provisions of H.R. 2067, ``Protecting
America's Workers Act.'' The Subcommittee has specifically requested a
statement concerning the effect that the proposed increase in civil
penalties contained in Section 310 would have on the workload of the
Occupational Safety and Health Review Commission (``Review
Commission''). In addition, I have included some brief comments on the
potential impact on the Review Commission of recent proposed changes to
H.R. 2067.
I. Background on the Review Commission
The Review Commission was established by the Occupational Safety
and Health Act of 1970 as an adjudicatory agency that serves as an
administrative court providing fair and expeditious resolution of
disputes involving the Department of Labor's Occupational Safety and
Health Administration (OSHA), employers charged with violations of OSHA
standards, and employees and/or their representatives. The Review
Commission is an independent agency, separate from the Department of
Labor and OSHA.
After an inspection or investigation, OSHA may issue an employer a
citation alleging a workplace health or safety violation. If the
employer disagrees with any part of the citation, including the
proposed penalty, it must notify OSHA by filing a written notice of
contest within 15 working days of receiving the citation. (An employee
or representative of employees may also file a notice of contest
alleging that the time period for abatement in the citation is
unreasonable.) The Secretary of Labor transmits the notice of contest
and all relevant documents to the Review Commission's Executive
Secretary for filing and docketing. After the case is docketed, it is
forwarded to the Office of the Chief Administrative Law Judge (ALJ) for
assignment to an ALJ. The case is generally assigned to an ALJ in the
Review Commission office closest to where the alleged violation
occurred. The Review Commission currently has twelve ALJs serving in
three offices--Atlanta, Denver, and Washington. Thereafter, the ALJ has
full responsibility for all pre-hearing procedures, and is charged with
providing a fair and impartial hearing in an expeditious manner and
promptly rendering a decision.
After the ALJ issues the decision, any party may file a Petition
for Discretionary Review requesting review of the decision by the
Commission, which is composed of three Members who are appointed by the
President, by and with the advice and consent of the Senate. Each
Commission member has the authority to direct a case for review by the
full Commission. Absent such a direction for review, the ALJ's decision
becomes final by operation of law, but is subject to further appeal to
a United States Court of Appeals. Once a case is directed for review,
the Commission has authority to review all aspects of a case, including
the ALJ's findings of fact, conclusions of law, and penalty
assessments. A final Commission decision may be also appealed to an
appropriate United States Court of Appeals.
Although the Review Commission is charged with the same goals under
the Act as OSHA, the advancement of worker safety, we play a different
but complementary role. OSHA is the rulemaking, enforcement, and policy
development agency, while the Review Commission is the neutral
adjudicatory agency, calling balls and strikes. Thus, we do not take a
position on the merits of the proposed legislation. Rather, we defer to
the policy-making role of agencies such as the Department of Labor and
the Department of Justice, and to the Congress. Our chief concern,
therefore, is how any proposed legislation might affect the Review
Commission's ability to fairly and expeditiously resolve disputes
within our resource constraints. Needless to say, we will faithfully
implement any new legislation that may be enacted to the best of our
ability.
II. Caseload Trends Under Current Law
Before discussing the proposed legislation, I should note that the
Review Commission has experienced a recent increase in the cases
received at the ALJ level. For example, between October 1, 2008 and
March 1, 2009, our ALJs received 790 cases. During the same period this
fiscal year, October 1, 2009 and March 1, 2010, our ALJs received 981
cases, an increase of approximately 24 percent. This increase in cases
so far this fiscal year may be part of a trend reflecting increased
enforcement activity by OSHA. Indeed, based on this trend, the Review
Commission expects to receive about 2,350 cases this fiscal year. In
addition, we understand that OSHA may be considering administrative
changes in its penalty proposal process and guidelines, which could
increase the number of citations that are contested and, in turn, our
caseload at the ALJ level and, over time, at the Commission level.
Looking further ahead, OSHA has projected an increase in
inspections from 40,549 in fiscal year 2009 to an estimated 42,250 in
fiscal year 2011, an increase of about four percent. In our fiscal year
2011 budget submission, we have projected an increase in new cases at
the ALJ level from 2,058 in fiscal year 2009 to an estimated 2,450 in
fiscal year 2011, an increase of approximately 19 percent.
III. The Proposed Legislation
The Subcommittee has asked me to address how the proposed increase
in civil penalty levels would affect the Review Commission and its
resource needs. Under the proposed legislation, the maximum penalty for
a serious or non-serious violation would generally increase from $7,000
to $12,000, while the maximum penalty for a willful or repeat violation
would generally increase from $70,000 to $120,000. The statutory
minimum penalty for a willful violation would increase from $5,000 to
$8,000. The maximum daily penalty for a failure to abate would increase
from $7,000 to $12,000. In addition, there would be enhanced penalties
where a violation causes the death of an employee. Finally, penalties
would be subject to periodic adjustment by the Secretary of Labor based
on inflation.
An increase in statutory penalty levels would likely lead to an
increase in the penalty amounts proposed by OSHA for cited violations.
In turn, employers may be more likely to challenge these higher
proposed penalties, increasing the contest rate and our caseload. The
increase in caseload would initially affect the ALJ level, and, over
time, would likely affect the Commission level as well.
I am hopeful that the Review Commission can handle this potential
increase in caseload with only minor adjustments and without a need for
significantly increased resources. Our dedicated corps of ALJs and
their use of innovative procedures has helped us successfully manage
our caseload at the ALJ level. For example, the use of ``simplified
proceedings'' has expedited the resolution of simpler cases and the use
of ``settlement part'' procedures, including the use of settlement
judges, has aided in the settlement of larger cases. We are continually
evaluating these programs to improve their effectiveness and will
continue to explore innovative dispute resolution techniques to help us
address any caseload increase.
The Review Commission has been very successful over the years in
meeting our performance goals under the Government Performance and
Results Act (GPRA) at the ALJ level. (Unfortunately, at the Commission
level we have been less successful in meeting our GPRA goals, largely
due to turnover in membership, Commission vacancies, and an inventory
of complex legacy cases, which we hope to resolve in the near future.)
Indeed, in fiscal year 2009, the ALJs decided 98 percent of non-complex
cases and 96 percent of complex cases within a year. Ninety-nine
percent of complex cases were decided within 18 months. However, we are
mindful of the Committee's recent hearing on the backlog of contested
cases at our sister agency, the Federal Mine Safety and Health Review
Commission (FMSHRC), and we would like to be able to responsibly
anticipate to the extent possible what may happen to our resource needs
down the road. Yet, as is evidenced by the situation at FMSHRC, it is
hard to reliably predict the effects of a change in law on caseload. We
are committed to exploring all available efficiencies before seeking
new resources. But, if current trends escalate and/or new legislation
results in a further increase in our caseload, and additional
efficiencies prove unavailing, we may need to consider adding
additional judges and staff.
IV. Potential Impact of Proposed Changes to the Legislation
I should note that certain proposed changes to H.R. 2067 would
directly affect the Review Commission. I will briefly mention two such
provisions and my concerns about how those provisions might work in
practice at the Review Commission.
In particular, I understand one provision would establish a
procedure before the Review Commission for employers to seek an
expedited stay of abatement requirements. Any such procedure should
allow our judges adequate time to schedule any necessary hearings and
rule on the stay requests. We currently have 12 judges nationwide
(located in three offices--Washington, Atlanta, and Denver) who may
already have hearings on the merits of cases or settlement conferences
scheduled months in advance. Unlike US District Court judges who are
located throughout the country in fixed courthouses, our judges travel
to their hearings and conferences, which are generally scheduled close
to the locations of the parties and witnesses. These hearings and
conferences are usually held in loaned space using public courthouses.
These concerns might be ameliorated by a 60-day period for
consideration of a stay request, with an option allowing the Chief
Judge to extend that period in specific cases.
In addition, such a new procedure would have other resource
implications for the Review Commission which are difficult to predict
at the present time. But it is likely that the shorter the time period
allowed for consideration of a stay request, the greater the resource
implications would be, including the potential need to secure space for
hearings on short notice. The volume of stay requests will also be a
significant factor.
I am concerned about how the provision to contest modifications of
citations would work in practice. Under our current rules, an election
of party status to participate in a case must be made at least ten days
before the hearing, unless good cause is shown. Allowing additional
notices of contests with respect to a modified citation to be filed at
any stage of a case, even after a hearing has been completed, could
complicate and prolong case resolution.
I would be glad to elaborate further upon these concerns. Needless
to say, I would welcome the opportunity to continue to work with the
Subcommittee on our concerns during the legislative process.
I hope my comments have been helpful to the Subcommittee.
______
Prepared Statement of Tonya Ford, Lincoln, NE
My name is Tonya Ford and I am the proud niece of Robert Fitch or
as I call him Uncle Bobby. He was killed in horrible, preventable work
related accident at a local ADM Grain Milling plant located in Lincoln,
NE on January 29, 2009.
I have to be the first to admit that I and many others are not
aware of how many work related deaths and or injuries there are in the
United States unless you have been in our shoes. But, please let me
tell you there are approximately 16 deaths a day in the United States
due to a work related accident.
I have read over the current Protect America's Workers Act and
believe that these changes are in need, to protect the workers that
make the United States what it is today, to honor the loved ones that
we all have lost in the past due to a work related accident, and to
respect the families that fight for their loved ones that want answers.
After much research I have discovered that deaths and injuries have
decreased since the creation of OSHA, however so much more needs to be
done to make sure that going to work is not a grave mistake.
I have been told many times that OSHA does not fine a company for
the death of an employee. OSHA determines the cause of death and fines
for what causes the death, the amount is not determined by the
individual however by the rules and regulations of what killed the
individual. In saying that how many chances does a company get when it
comes to hazardous devices or structure, hazardous material that takes
a life and or injures someone. We as family members and employees of
companies believe that if a company knows that a device is considered
hazardous and they did not remove and or update the device to meet
updated guidelines then the company should be held accountable for this
death and or injury. By raising civil penalties and indexes those
penalties to inflation and by allowing felony prosecutions against
employers who commit willful violations that result in death or serious
bodily injury, and extends such penalties to responsible corporate
officers, all employers will be more aware of how to make their company
safe and protect their employees when they know their are more
consequences.
Other important facts in the current Protecting American's Worker
Act is to require OSHA to investigate all cases of death and serious
injuries. Currently it states that it must be reported to OSHA if there
are three injuries that resulted in going to the hospital. One accident
is enough, and should be used to know that something is wrong or
unsafe. It should not take multiple accidents and or a death to make
awareness to a safety issue. I believe also that OSHA should re-
investigate a company unannounced within 6-18 months from the death,
when there is a death at a company. I have been told by many people
that OSHA is under staffed and this is the reasoning for them not to
re-investigate a company and or go and investigate a company if there
are not 3 or more reported injuries. One of the ways is to expands OSHA
coverage is to include state and local public employees and also
federal government workers.
I would like to mention a big issue that is brought up in this act.
Is improving Whistleblower Protections, this is very important as
employees should feel safe at work and know that if they are to contact
OSHA, because there is a safety issue at the company they can not lose
their job. You will not believe in my research and fight to make a
difference how many people contact me and state, ``I can't talk, but I
wish I could the economy is bad and I need my job.''
Clarifying that employees cannot be discriminated against for
reporting injuries, illnesses or unsafe conditions, and brings the
procedures for investigating and adjudicating discrimination complaints
into line with other safety and health and whistleblower laws, is very
important and can prevent a death or injury.
As a family member that no longer has her Uncle, I would like to
mention that my Uncle, Dad and Grandfather were or are employed by ADM
currently today, in saying that many men and women work at places not
because they want to or choose to but, because they have children at
home, a roof to put over their heads, food to put in their stomach and
clothes on there back. It is the hard work and the hands of people such
as my Uncle, Dad and Grandfather that makes these companies what they
are today; a success. It is the employers that must protect these
workers or serve the consequences after all many of them make a billion
dollars a year, and do nothing to protect and honor the people that
made their company what it is today and will be tomorrow.
Please know that I am not just one person speaking about one
family, I lost my Uncle but, I write you on behalf of all families that
are standing in my shoes, that have lost their son, brother, mother,
father, daughter * * * I write you because things must change and
everything that is mentioned in the Protecting American Workers Act, is
very important and us people that work day by day, paycheck to paycheck
want to know and need to know that our children, friends and family
will be protected and honored when they go to work. As stated before
going to work should not be a grave mistake.
To read more about my story and fines that ADM did not incur for
the cause of my Uncles death, please ready additional documentation.
I thank you again for your time and please know how important this
is.
______
MAXIMUM PENALTIES ADJUSTED FOR INFLATION, 2000 TO 2010
------------------------------------------------------------------------
Penalty Adjusted for Current Penalty Adjusted for
Current Max Inflation Using the CPI Max Inflation Using the
Penalty for ------------------------- Penalty CPI
a Willful for a -----------------------
Violation Year Amount Serious
Violation Year Amount
------------------------------------------------------------------------
$70,000 2010 $116,053 $7,000 2010 $11,605
2009 $114,901 2009 $11,490
2008 $115,311 2008 $11,531
2007 $111,048 2007 $11,105
2006 $107,972 2006 $10,797
2005 $104,598 2005 $10,460
2004 $101,171 2004 $10,117
2003 $98,546 2003 $9,855
2002 $96,350 2002 $9,635
2001 $94,851 2001 $9,485
2000 $92,226 2000 $9,223
------------------------------------------------------------------------
------
Mr. Frumin. Madam Chair--and I would ask that--I had a
document I wanted to enter into the record as well. This was
the indictment of the Xcel Corporation in Colorado.
Chairwoman Woolsey. Without objection.
[Additional submissions of Mr. Frumin follow:]
------
------
Chairwoman Woolsey. So with that as--this meeting is almost
adjourned. But, first, as previously ordered, members will have
14 days to submit additional materials for the hearing record.
And any member who wishes to submit follow-up questions in
writing, to the witnesses, should coordinate with majority
staff within 14 days.
Without objection, this hearing is adjourned.
[The statement of Mr. Miller follows:]
Prepared Statement of Hon. George Miller, Chairman,
Committee on Education and Labor
I want to commend Chairwoman Woolsey for her leadership in moving
forward with legislative hearings as part our efforts to ensure that
America's workers are protected while on the job.
As Congresswoman Woolsey noted, there has been significant progress
made over the past four decades in improving worker safety.
Through our many hearings over the last three years, we found that
there are employers who comply with worker safety laws and care about
protecting their workers.
However, we have also learned that there are still a number
employers who knowingly and repeatedly fail to protect their workers
from death or serious bodily injury on the job.
For these employers, current law does not provide that credible
deterrent. Some, in fact, consider OSHA's weak penalties the cost of
doing business.
That is why we must update the law and provide a credible
deterrent.
A few states that run their own health and safety program have
tried to take the lead in modernizing penalties.
In 2000, California increased its maximum penalty for a serious
violation from 7,000 to $25,000, and increased penalties for criminal
violations
And more recently, Wyoming is attempting to improve its highest-in-
the-nation workplace fatality rate by strengthening their penalties.
Wyoming's governor is pushing reform that mirrors the civil
penalties in the bill before us today.
He wrote the committee last week urging us to adopt the higher
penalty structure in the bill before us today.
However, states cannot do it alone because of significant political
pressure.
Every worker in this country deserves to have the same basic
protections while on the job.
The Protecting America's Workers Act will bring our nation's health
and safety laws into the 21st century. It gives OSHA the tools to
enforce safe and healthy workplaces for all American workers.
I am encouraged that the Obama administration is returning to
OSHA's mission of protecting workers by working on new standards and
strengthening enforcement activities.
But, OSHA will need additional help through improvements to the
law.
Again, Chairwoman Woolsey, thank you for your leadership on this
important issue.
______
[Submission of Ms. Titus follows:]
111th CONGRESS
2d Session
H. R. 4864
To require a heightened review process by the Secretary of
Labor of State occupational safety and health plans,
and for other purposes.
------
IN THE HOUSE OF REPRESENTATIVES
March 16, 2010
Ms. Titus (for herself and Ms. Woolsey) introduced the
following bill; which was referred to the Committee on
Education and Labor
------
A BILL
To require a heightened review process by the Secretary of
Labor of State occupational safety and health plans,
and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Ensuring Worker Safety Act''.
SEC. 2. REVIEW OF STATE OCCUPATIONAL SAFETY AND HEALTH PLANS.
Section 18 of the Occupational Safety and Health Act (29 U.S.C.
668) is amended----
(1) by amending subsection (f) to read as follows:
``(f)(1) The Secretary shall, on the basis of reports submitted by
the State agency and the Secretary's own inspections, make a continuing
evaluation of the manner in which each State that has a plan approved
under this section is carrying out such plan. Such evaluation shall
include an assessment of whether the State continues to meet the
requirements of subsection (c) of this section and any other criteria
or indices of effectiveness specified by the Secretary in regulations.
Whenever the Secretary finds, on the basis of such evaluation, that in
the administration of the State plan there is a failure to comply
substantially with any provision of the State plan (or any assurance
contained therein), the Secretary shall make an initial determination
of whether the failure is of such a nature that the plan should be
withdrawn or whether the failure is of such a nature that the State
should be given the opportunity to remedy the deficiencies, and provide
notice of the Secretary's findings and initial determination.
``(2) If the Secretary makes an initial determination to reassert
and exercise concurrent enforcement authority while the State is given
an opportunity to remedy the deficiencies, the Secretary shall afford
the State an opportunity for a public hearing within 15 days of such
request, provided that such request is made not later than 10 days
after Secretary's notice to the State. The Secretary shall review and
consider the testimony, evidence, or written comments, and not later
than 30 days following such hearing, make a determination to affirm,
reverse, or modify the Secretary's initial determination to reassert
and exercise concurrent enforcement authority under sections 8, 9, 10,
13, and 17 with respect to standards promulgated under section 6 and
obligations under section 5(a). Following such a determination by the
Secretary, or in the event that the State does not request a hearing
within the time frame set forth in this paragraph, the Secretary may
reassert and exercise such concurrent enforcement authority, while a
final determination is pending under paragraph (3) or until the
Secretary has determined that the State has remedied the deficiencies
as provided under paragraph (4). Such determination shall be published
in the Federal Register. The procedures set forth in section 18(g)
shall not apply to a determination by the Secretary to reassert and
exercise such concurrent enforcement authority.
``(3) If the Secretary makes an initial determination that the plan
should be withdrawn, the Secretary shall provide due notice and the
opportunity for a hearing. If based on the evaluation, comments, and
evidence, the Secretary makes a final determination that there is a
failure to comply substantially with any provision of the State plan
(or any assurance contained therein), he shall notify the State agency
of the withdrawal of approval of such plan and upon receipt of such
notice such plan shall cease to be in effect, but the State may retain
jurisdiction in any case commenced before the withdrawal of the plan in
order to enforce standards under the plan whenever the issues involved
do not relate to the reasons for the withdrawal of the plan.
``(4) If the Secretary makes a determination that the State should
be provided the opportunity to remedy the deficiencies, the Secretary
shall provide the State an opportunity to respond to the Secretary's
findings and the opportunity to remedy such deficiencies within a time
period established by the Secretary, not to exceed 1 year. The
Secretary may extend and revise the time period to remedy such
deficiencies, if the State's legislature is not in session during this
1 year time period, or if the State demonstrates that it is not
feasible to correct the deficiencies in the time period set by the
Secretary, and the State has a plan to correct the deficiencies within
a reasonable time period. If the Secretary finds that the State agency
has failed to remedy such deficiencies within the time period specified
by the Secretary and that the State plan continues to fail to comply
substantially with a provision of the State plan, the Secretary shall
withdraw the State plan as provided for in paragraph (3).''; and
(2) by adding at the end the following new subsection:
``(i) Not later than 18 months after the date of enactment of this
subsection, and every 5 years thereafter, the Comptroller General shall
complete and issue a review of the effectiveness of State plans to
develop and enforce safety and health standards to determine if they
are at least as effective as the Federal program and to evaluate
whether the Secretary's oversight of State plans is effective. The
Comptroller General's evaluation shall assess----
``(1) the effectiveness of the Secretary's oversight of State
plans, including the indices of effectiveness used by the Secretary;
``(2) whether the Secretary's investigations in response to
Complaints About State Plan Administration (CASPA) are adequate,
whether significant policy issues have been identified by headquarters
and corrective actions are fully implemented by each State;
``(3) whether the formula for the distribution of funds described
in section 23(g) to State programs is fair and adequate;
``(4) whether State plans are as effective as the Federal program
in preventing occupational injuries, illnesses and deaths, and
investigating discrimination complaints, through an evaluation of at
least 20 percent of approved State plans, and which shall cover----
``(A) enforcement effectiveness, including handling of fatalities,
serious incidents and complaints, compliance with inspection
procedures, hazard recognition, verification of abatement, violation
classification, citation and penalty issuance, including appropriate
use of willful and repeat citations, and employee involvement;
``(B) inspections, the number of programmed health and safety
inspections at private and public sector establishments, and whether
the State targets the highest hazard private sector work sites and
facilities in that State;
``(C) budget and staffing, including whether the State is providing
adequate budget resources to hire, train and retain sufficient numbers
of qualified staff, including timely filling of vacancies;
``(D) administrative review, including the quality of decisions,
consistency with Federal precedence, transparency of proceedings,
decisions and records are available to the public, adequacy of State
defense, and whether the State appropriately appeals adverse decisions;
``(E) antidiscrimination, including whether discrimination
complaints are processed in a timely manner, whether supervisors and
investigators are properly trained to investigate discrimination
complaints, whether a case file review indicates merit cases are
properly identified consistent with Federal policy and procedure,
whether employees are notified of their rights, and whether there is an
effective process for employees to appeal the dismissal of a complaint;
``(F) program administration, including whether the State's
standards and policies are at least as effective as the Federal program
and are updated in a timely manner, and whether National Emphasis
Programs that are applicable in such States are adopted and implemented
in a manner that is at least as effective as the Federal program;
``(G) whether the State plan satisfies the requirements for
approval set forth in this section and its implementing regulations;
and
``(H) other such factors identified by the Comptroller General, or
as requested by the Committee on Education and Labor of the House of
Representatives or the Committee on Health, Education, Labor, and
Pensions of the Senate.''.
______
[Questions submitted to witnesses for the record and their
responses follow:]
[Via facsimile and email],
U.S. Congress,
Washington, DC, March 19, 2010.
Hon. John Cruden, Deputy Assistant Attorney General,
Environment and Natural Resources Division, U.S. Department of Justice,
950 Pennsylvania Avenue, NW, Washington, DC 20530-0001.
Dear Deputy Assistant Attorney General Cruden: Thank you for
testifying at the Subcommittee's hearing, ``Protecting America's
Workers Act: Modernizing OSHA Penalties'' held on Tuesday, March 16,
2010.
Committee Members had additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
(1) Your testimony says that there is little incentive for
prosecutors to take Occupational Safety and Health Administration
(OSHA) misdemeanor referrals because the Department of Justice (DOJ)
must reserve limited resources for crimes designated as felonies. Over
the past 5 years, what percentage of OSHA criminal referrals did the
DOJ or US Attorney reject because OSHA criminal penalties were
classified as misdemeanors? Would DOJ's posture towards OSHA criminal
cases change, if OSHA criminal violations were classified as felonies?
(2) What is the state of mind necessary to prove a criminal
violation under the ``knowing'' standard? How does this differ from the
mens rea provision in the current Section 17 of OSHA which uses a
``willful'' standard? Does DOJ have a view regarding which standard
should be used in our efforts to modernize the OSHA act?
(3) Under the March 9, 2010, discussion draft, what elements have
to be proven to establish a criminal violation? Will employers be
subject to a criminal prosecution every time an employee is killed on
the job, and OSHA finds a violation linked to it?
(4) Who should be held liable in a criminal prosecution under the
OSHA Act? Individual workers or corporate managers and directors?
(5) Is mere negligence sufficient to establish a criminal
violation? What about recklessness?
(6) Mr. Frumin's testimony states that where employers use contract
labor for especially hazardous tasks, the potential criminal sanctions
are non-existent under OSHA for the corporations and executives who
control the workplace. In your view, should this problem be corrected
in PAWA? How should it be changed?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis and Richard Miller of
the Committee staff at [email protected] and
[email protected] by close of business Tuesday, March 30,
2010, the date on which the hearing record will close. If you have any
questions, please do not hesitate to contact Ms. Dondis or Mr. Miller
at 202-225-3275.
Sincerely,
George Miller, Chairman.
______
------
March 30, 2010.
Hon. George Miller, Chairman,
House Committee on Education and Labor, U. S. House of Representatives,
Washington, DC 20515.
Dear Chairman Miller: Thank you again for allowing me the
opportunity to testify before the Subcommittee on March 16, concerning
OSHA penalties. The following are my responses to the questions you
sent me on March 19, from Ms. Woolsey.
Examples of employers for whom higher penalties would have made a
difference in deterring employer violations
There are several examples of cases where initial penalties should
have made a difference, but failed to do so. For instance, in the
report of the Senate HELP Committee Majority Staff on fatality
inspections (reference #9 in my prepared testimony), the Staff
identified several employers with repeated fatalities involving similar
hazards and violations. Among the most notorious is the Patterson-UTI
drilling contractor in the oil/gas drilling industry. The Senate report
described Patterson-UTI as follows:
OSHA's history with Patterson-UTI Drilling Company, one of the
worst violators of workplace safety laws, provides a sobering and
instructive example of the agency's complete failure to check reckless
and outrageous conduct. Since 2003, 13 workers have been killed at
Patterson jobsites in the state of Texas alone. OSHA's attempts to stop
Patterson from gambling with workers' lives are a study in weakness.
(p. 24).
The report then details repeated instances of multiple cases,
Between November 2003 and April 2007, when OSHA conducted inspections,
imposed penalties--often for repeated violations--and subsequently
reduced those penalties.
Another example is that of Waste Management, Inc. (WMI) As the
Subcommittee heard in its hearing on OSHA's EEP program on April 30,
2009, WMI was identified by the DOL Inspector General in his review of
OSHA ``Enhanced Enforcement Program.'' As the IG noted, WMI was one of
nearly 30employers whose workers were killed on the job, and where, as
the IG stated:
[the company] had related serious violations and/or qualifying
prior history, and should have been designated as EEP [as employers who
were indifferent to their compliance obligations under the OSHAct].
Another example is the Cintas Corp. As I mentioned in my testimony,
and as the Subcommittee heard at its hearing on April 23, 2008, prior
to the death of Eleazar Torres Gomez on March 6, 2007, Cintas was aware
of the high risk of death from the unguarded equipment in its laundry
operations. After OSHA cited the company for a serious violation (when
OSHA was unfortunately unaware of the company's detailed prior
knowledge), the penalty of $2250 was simply too low to serve as an
effective deterrent.
Finally, in the case of BP, even a record $21 million penalty in
2007 following the horrific explosion in Texas City, TX that killed 15
employees and injured 170 more was not enough to convince the employer
to fully comply with the law. For that reason, OSHA has now had to
impose a 4-fold higher penalty of $87 million, the majority of which
was for failure to abate the violations identified in the settlement
agreement accompanying the $21 million penalty.
And it appears that even the $87 million penalty was not enough to
convince the company to comply. Again, on March 8, OSHA has imposed a
$3 million penalty on a BP joint venture in Toledo, OH, for dozens of
willful violations. As OSHA itself described the citation and penalty:
``OSHA has found that BP often ignored or severely delayed fixing
known hazards in its refineries,'' said Secretary of Labor Hilda L.
Solis. ``There is no excuse for taking chances with people's lives. BP
must fix the hazards now.'' OSHA began its inspection at the refinery
located near Toledo, Ohio, in September 2009 as part of the agency's
Refinery National Emphasis Program and as a follow-up to a 2006
inspection and a 2007 settlement agreement between OSHA and BP at this
location. Although the 2009 inspection found that BP had complied with
the settlement agreement, OSHA found numerous violations at the plant
not previously covered by the agreement.
Clearly, the deterrent function of the Act has failed to convince
employers to comply with the law. A more powerful penalty structure is
sorely needed. But civil penalties alone will not be sufficient,
especially when dealing with employers like Cintas, Waste Management
and BP, for whom millions of dollars in civil penalties are at worst a
nuisance, and have little impact on the profits or share prices by
which executives are routinely judged by Boards of Directors and
stockholders. For these reasons, it is critical that Congress give OSHA
the authority to impose effective criminal sanctions as well.
Limitations on multi-employer liability
My testimony stated that:
Under the current OSHA statute, with the exception of the
construction industry, only the contractor business itself as well as
its officers, could be held accountable for allowing those conditions
to exist in the first place. The huge corporations which hire these
disreputable contractors are exempt from liability for OSHA violations
and subsequent prosecution.
I regret that this testimony is in error, and wish to correct the
record. In fact, OSHA has the authority to cite employers outside of
the construction industry for hazards and violations which affect the
employees of their contractors. OSHA has indeed issued citations for
violations by ``controlling'' employers, irrespective of industry.
Furthermore, it has expressed that policy in OSHA Instruction CPL 02-
00-124, Multi-Employer Citation Policy, December 10, 1999, as well as
its Field Operations Manual. That policy has been upheld by several
Courts of Appeals, most recently in by the Eighth Circuit Court of
Appeals in Solis v. Summit Contractors, Feb. 26, 2009.
The policy reads as follows:
Multi-employer Worksite Policy. The following is the multi-employer
citation policy:
A. Multi-employer Worksites. On multi-employer worksites (in all
industry sectors), more than one employer may be citable for a
hazardous condition that violates an OSHA standard. A two-step process
must be followed in determining whether more than one employer is to be
cited.
1. Step One. The first step is to determine whether the employer is
a creating, exposing, correcting, or controlling employer. The
definitions in paragraphs (B)--(E) below explain and give examples of
each. Remember that an employer may have multiple roles (see paragraph
H). Once you determine the role of the employer, go to Step Two to
determine if a citation is appropriate (NOTE: only exposing employers
can be cited for General Duty Clause violations).
2. Step Two. If the employer falls into one of these categories, it
has obligations with respect to OSHA requirements. Step Two is to
determine if the employer's actions were sufficient to meet those
obligations. The extent of the actions required of employers varies
based on which category applies. Note that the extent of the measures
that a controlling employer must take to satisfy its duty to exercise
reasonable care to prevent and detect violations is less than what is
required of an employer with respect to protecting its own employees.
However, as has also been clear, OSHA's application of this policy
has not deterred subcontractor employers from repeatedly committing
violations that have resulted in the death of employees--even when
OSHA's own standards requiring the controlling employer to
affirmatively act to prevent such abuses by their contractors. The
recent example cited in my testimony of Xcel Energy is a graphic
version of these abuses. During my testimony, I submitted a copy of the
indictment secured by the US Attorney for the Middle District of
Colorado, accusing Xcel Energy of ``aiding and abetting'' the employer
of the employees trapped in Xcel's hydroelectric tunnel when the
chemicals they used caught fire and killed them. To further underscore
the severity of Xcel's own involvement, attached are the citations
issued by OSHA against Xcel itself, noting the specific failures by
Xcel that OSHA found regarding the adoption and implementation of
``confined Space'' hazards for contractor employees. Note Willful
violation #1 and Serious Violation #5 concerning the actions which Xcel
should have taken to assure the safety of its own as well as its
contractor employees.
Sadly, despite these apparent failures by Xcel, neither Xcel nor
its executives were ever charged with violations leading to the death
of the contractor employees. Xcel's only crime was aiding and abetting
the contractor.
The application of the policy has also faced serious limits in
requiring the controlling employer to deal effectively with the
underlying conditions that threaten the contractor's workers. In the
meatpacking industry, cleaning contractors are routinely used by host
employers to ``do the dirty work'' of the daily cleaning of processing
equipment. One such contractor--DCS Sanitation--has literally become a
``textbook case'' of lockout violations. OSHA offers such a case from a
1993 fatality at an IBP, Inc. plant on OSHA's web training materials
for willful violations of the lockout standard:
http://www.osha.gov/dts/osta/lototraining/caselaw/cl-overvw.html.
In 1998, however, the District of Columbia Circuit Court of Appeals
absolved IBP itself of any liability for the violations surrounding
this horrible death, in a decision written by Judge Silberman on behalf
of himself and Judges Edwards and Ginsburg. Without debating further
the details of the IBP case, suffice it to say that OSHA will continue
to face challenges when its leverage over such employers is so weak.
However, that hasn't stopped DCS from continuing to commit serious
violations. In April, 2008, OSHA cited DCS for multiple serious as well
as a willful and repeat violation following the death of one of its
employees at a chicken processing plant in Missouri.
A similar scenario has apparently occurred at the notorious BP
refinery in Texas. In this case, BP instead of the contractor was
clearly involved in creating the conditions which killed the employees.
But despite BP's multitude of violations leading to the conditions
which killed 15 contractor employees, BP was never held criminally
accountable for the workers' deaths under the OSHAct. The indictment
(attached) only charged BP with knowing violations of the Clean Air
Act. As David Senko, one of the supervisors of the deceased workers,
recently remarked at a 5-year anniversary of the tragedy about the
consequences for BP executives:
``Not one, none, have been disciplined, fined, terminated,
indicted, tried, incarcerated or held accountable in any way for their
very preventable, criminal, almost murderous, event that took place
five years ago.''
In sum, OSHA needs additional tools and authority to clearly hold
all host employers responsible for assuring safe conditions when they
contract with other employers to assign workers to dangerous tasks, and
a clear path to holding host employers accountable when they fail to do
so. We see no other effective way to assure that all workers are
protected, irrespective of which employer is actually creating or
controlling the hazards. With the increasing use of contractors, this
is a critical next stop for modernizing OSHA penalties.
Mr. Snare's mischaracterization of alleged ``witch hunts''.
I completely reject the notion that any expansion of criminal
liability to ``corporate officer and director'' will necessarily lead
to a ``witch hunt.'' As Deputy Assistant Attorney General Cruden made
amply clear in his testimony, such authority has existing in our
environmental laws for decades. Mr. Snare was also the Solicitor of
Labor at the time that both the Department of Labor and the Justice
Department were engaging in successful prosecutions of employers who
violated these laws, and the Departments were seeking such punishments.
Have these prosecutions led to ``witch hunts''? If so, who are the
victims? Where are the corporate executives who were unfairly charged,
mercilessly abused in the courtroom, and ultimately vindicated or
jailed? Neither Mr. Snare, nor the Chamber of Commerce, has offered any
such examples. Nor do we believe that they can.
Either Mr. Snare or the Chamber of Commerce will have to explain
why they have engaged in such inflammatory rhetoric to attack a modest
proposal which simply seeks to equalize the government's authority
across various similar laws.
We believe that such testimony is inappropriate for a legislative
hearing where the Committee is attempting to seriously examine the
proposed legislation, and find solutions to the problems that confront
ethical, responsible employers when irresponsible employers can flout
the law.
In addition to higher penalties, what other provisions of PAWA
support increased deterrence?
We believe that the new procedures and authority to protect
whistleblowers, under Title II, will help OSHA and workers to work
together to better identify otherwise recidivist employers and compel
them to correct violations before the most severe sanctions become
necessary. OSHA has known for years that when informed workers file
knowledgeable complaints about serious hazards and violations, OSHA can
do its job much more easily. Unfortunately, the current law provides
little effective protection for workers who complain to their own
employers, or whose complaints to OSHA become know to employers.
Employers can easily identify such workers when the workers actively
participate in workplace committees or otherwise discuss such problems
with other employees, not to mention any active participation in an
inspection.
We also believe that the provisions of Section 308, requiring
abatement of violations during employer appeals, will help discourage
employers from needlessly challenging violations when they are
primarily interested in resolving disputes about penalties. Early
action on hazards will thereby resolve these hazards quickly,
eliminating a potential source of future violations.
Finally, we believe that the provisions allowing both employees and
victims' families to more actively participate in the appeals process
will help discourage inappropriate settlements that reduce penalties to
levels which no longer serve a deterrent function.
What other provisions should be included in PAWA to deter
violations at multi-site employers?
One of the serious gaps in the OSHAct is OSHA's inability to
determine quickly and conveniently whether or not the same violations
are occurring at other sites within the same company. As the
Subcommittee has already seen at the Cintas Corp., as well as at
McWane, BP and other large employers, large companies with active
corporate functions can create the same hazards in multiple locations.
They can likewise assure that these multi-site violations can be fixed,
too.
However, there is no obligation on these large employers to
determine whether or not the violations exist elsewhere. As a result,
what appears to be a ``routine'' violation may already exist in many
places and it is only the occurrence of a preventable fatality or
serious injury which brings this pattern to light. This is largely the
basis of the EEP program--soon to be called the Severe Violators
Enforcement Program.
Mr. Hare's legislation (HR 2113) would create an important
expansion of the current reporting requirements for such large
employers, requiring them to report the injury rates and cited
violations at multiple locations. That is a good beginning. However, it
still does not require employers to fix uncited violations in multiple
locations, even if the employer is well aware of those violations.
It should not require OSHA inspectors to continually visit multiple
sites before a large, sophisticated, wealthy corporation finally takes
action to fix known violations. The Committee should consider other
requirements, such as a ``find and fix'' requirement: when a multi-site
employer commits the kinds of violations that OSHA itself uses as a
criteria for urgent further investigation. These could be severely
dangerous hazards that have emerged in individual OSHA inspections, as
well as hazards that are already well known throughout an industry
(such as those identified in OSHA's National Emphasis Programs).
Were the Committee to adopt such a proactive approach, then
responsible employers would no longer face the costs arising from their
own commitment to comprehensive compliance actions, while their
irresponsible competitors simply ignore their violations and await the
rare visit from an inspector. We believe that a combination of improved
corporate-wide reporting, as well as a corporate-wide ``find and fix''
obligation, would both encourage much greater voluntary compliance as
well as lay the foundation for the severe sorts of penalties that PAWA
would finally authorize. Such a combination would constitute, for the
first time, a true deterrent function that would help protect millions
of workers in hazardous jobs and industries, while adding only
marginally to OSHA's own investigative burdens.
Thank you again for providing me with the opportunity to testify.
Sincerely,
Eric Frumin, Health and Safety Coordinator,
Change to Win.
______
[Via facsimile and email],
U.S. Congress,
Washington, DC, March 19, 2010.
Hon. David Michaels, Assistant Secretary of Labor,
Occupation Safety and Health Administration, U.S. Department of Labor,
200 Constitution Avenue, NW, Washington, DC 20510.
Dear Assistant Secretary Michaels: Thank you for testifying before
the Subcommittee on Workforce Protections at the hearing on,
``Protecting America's Workers Act: Modernizing OSHA Penalties'' held
on Tuesday, March 16, 2010.
Committee Members had additional questions for which they would
like written responses from you for the hearing record.
Representative Lynn Woolsey (D-CA) asks the following questions:
1. Do you believe that Occupational Safety and Health Act (OSHAct)
penalties should be allowed to be eroded through inflation?
2. Your testimony supports provisions that would expand the rights
of workers and their representatives to contest OSHA citations and
modifications. In which states are these rights already provided in an
OSHA state plan? Please explain why expanding contest rights under
Section 10(c) of the OSHAct for workers is important?
3. Mr. Snare's testimony on behalf of the Chamber of Commerce
states that the victim's rights provisions in the Protecting America's
Workers Act (PAWA) which allow families to discuss investigations with
the Secretary of Labor, express views on settlements, and present their
views to Administrative Law Judges will provide little value ``other
than to sensationalize presumably already emotional and sensitive
matters.''
a. Do you agree with the views of the Chamber of Commerce in this
matter?
b. Are there benefits to OSHA from having families of victims
involved with the investigation, or in the settlement or adjudicative
processes? What are these benefits?
c. Should there be limits on victim's families in providing
information to investigators, or involving victim's families in the
settlement or adjudicative process? If so, what should those limits be?
d. Does OSHA have any data on the extent to which OSHA complies
with its existing Field Operations Manual on interviewing family
members and maintaining contact through the investigation?
e. Would OSHA support Congress establishing a legal right for
victim's families to participate in proceedings before the OSHA Review
Commission, and to provide information from the case file to the family
so they can meaningfully participate?
4. Mr. Snare's testimony on behalf of the Chamber of Commerce says
that ``Enforcement and penalties do not prevent workplace fatalities
and injuries; they are imposed after fatalities and injuries have
occurred.'' Isn't it the case that OSHA also levies penalties following
complaint inspections and programmed inspections, and that these
actions help prevent accidents? What percentage of OSHA's penalties are
assessed after fatalities and injuries have occurred? What percent
follow programmed inspections or complaints? Please provide percentages
for the past two years.
5. In amending the criminal provisions to the OSHAct, does DOL
support changing the current mens rea standard from ``willful'' to
``knowing''?
6. Currently Section 17(a) of the OSHAct provides for a minimum
penalty for ``willful'' violations. Does OSHA support a minimum civil
penalty for a ``serious'' violation or ``other than serious''? If so,
at what dollar level? If not, please explain why.
7. Robert Fitch was killed at the Archer Daniels Midland (ADM)
plant in Lincoln, Nebraska in January 2009. OSHA issued 2 citations and
proposed penalties of $10,000 related to violations of the standard
governing manlifts (29 CFR 1910.68). These two citations were deleted
as part of an informal settlement agreement which also zeroed out the
penalties.
a. Were there recognized falling hazards pertaining to the manlifts
at the ADM facility?
b. Was abatement of the hazard feasible? If so, what were the
feasible hazard abatement methods?
c. Did OSHA investigate whether there was history at this facility
where employees had fallen off the same or similar type of manlifts and
been hurt or killed? If not, why didn't OSHA make this inquiry?
d. Would OSHA compliance directives have allowed OSHA to use the
general duty clause under Section 5(a)(1) of the Act to cite the
employer for falling hazards leading to the death of this worker? If
so, why wasn't it used?
e. Was a $10,000 penalty the maximum penalty available to OSHA for
a fatality? Is this sufficient to deter future non compliance?
f. Was the deletion of these two citations justified on the grounds
that 29 CFR 1910.68 grandfathered this belt driven manlift? What
specific provisions in this standard grandfathered equipment that
lacked fall protection and non-slip surfaces?
g. Was there a sound legal basis for deleting these two citations
totaling $10,000 in an informal settlement? If so, what was the legal
basis?
h. Is it the case that the family learned about the settlement from
the news media? Is this consistent with OSHA policy?
8. OSHA has launched a National Emphasis Program (NEP) on
underreporting of injuries and illnesses. How many inspections have
been initiated as of March 22, 2010, and of those inspections, please
provide statistics on the number of violations by NAICS code?
9. Would OSHA's ability to protect worker safety in cases where
there was an imminent danger be facilitated if OSHA had the ability to
issue imminent danger shutdown orders without having to first secure an
injunction from a federal court judge?
10. How many imminent danger orders were secured each year between
the beginning of FY 2005 and the end of FY 2009 under the OSHAct?
Please provide a timeline for each imminent danger proceeding, showing
the date and time of inspection, the date and time of recognition of
the imminency of the danger, the date and time when DOL first sought an
order, and the date and time when the Court order was delivered to the
employer.
11. The PAWA discussion draft of March 9, 2010, makes ``any officer
and director'' liable under the criminal provisions of the OSHAct, in
addition to employers as defined under Section 3 of the OSHAct. Does
OSHA support criminal liability for ``any officer or director''?
12. Mr. Frumin testified that where employers use contract labor
for especially hazardous tasks, the potential sanctions are non-
existent for the corporations and executives who own or control the
workplace. In your view, how should this multi employer liability
problem be corrected? Does it require a legislative change?
13. The March 9, 2010 discussion draft allows employers to seek a
temporary stay of the abatement order. In issuing a stay, the OSHA
Review Commission must consider whether the employer had demonstrated a
substantial likelihood of success on its contest to the citation,
whether the employer will suffer irreparable harm absent a stay, and
whether a stay will adversely affect the health and safety of the
workers. Mr. Snare's testimony on behalf of the Chamber of Commerce
states that requiring abatement of serious violations pending contest
of a citation case is ``unjustified'' and ``an outrageous trampling of
due process rights.''
a. Does OSHA agree with Mr. Snare that the requirement for
abatement pending contest of serious violations coupled with the due
process rights set forth in the discussion draft represents an
``outrageous trampling of due process rights?''
b. Are the due process rights for employers who object to an
abatement order for a serious violation under PAWA comparable to the
due process rights for mine operators who object to an abatement order
in the Mine Act?
c. Does Oregon OSHA require abatement of serious violations pending
contest? Has the adoption of the requirement for abatement of serious
hazards pending contest been challenged on due process grounds? If so,
has it been overturned by the Courts in that state?
Please send an electronic version of your written response to the
questions in Microsoft Word format to Lynn Dondis and Richard Miller of
the Committee staff at [email protected] and
[email protected] by close of business Tuesday, March 30,
2010, the date on which the hearing record will close. If you have any
questions, please do not hesitate to contact Ms. Dondis or Mr. Miller
at 202-225-3275.
Sincerely,
George Miller, Chairman.
______
OSHA Responses to Additional Questions for the Hearing Record
Question 1: Do you believe that Occupational Safety and Health Act
(OSH Act) penalties should be allowed to be eroded through inflation?
Answer: No. Monetary penalties for violations of the OSH Act have
been increased only once in 40 years despite disproportionately greater
inflation during that period. OSHA's current civil penalties are not
large enough to provide adequate deterrents to unscrupulous employers
that often consider it more cost effective to pay the minimal OSHA
penalty and continue to operate an unsafe workplace than to correct the
underlying health and safety problem. Serious violations--those that
pose a substantial probability of death or serious physical harm to
workers--are subject to a maximum civil penalty of only $7,000. Willful
and repeated violations carry a maximum penalty of only $70,000 and
willful violations a minimum of $5,000.
Currently, the average OSHA penalty is only around $1,000. The
median initial penalty proposed for all investigations conducted in FY
2007 in cases where a worker was killed was only $5,900. Clearly, OSHA
can never put a price on a worker's life, nor is that the purpose of
penalties--even in fatality cases. However, in cases where a life is
needlessly lost, OSHA must be empowered to send a message stronger than
that which a $5,900 penalty sends.
This is apparent when compared to penalties that other agencies are
allowed to assess. For example, the Department of Agriculture is
authorized to impose fines of up to $140,000 on milk processors for
willful violations of the Fluid Milk Promotion Act, which include
refusal to pay fees and assessments to help advertise and research
fluid milk products. The Federal Communications Commission can fine a
TV or radio station up to $325,000 for indecent content. The
Environmental Protection Agency can impose a penalty of $270,000 for
violations of the Clean Air Act and a penalty of $1 million for
attempting to tamper with a public water system. Yet, the maximum civil
penalty OSHA may impose when a hard-working man or woman is killed on
the job--even when the death is caused by a willful violation of an
OSHA requirement--is $70,000.
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 or repeat violations that involve a fatality to
as much as $250,000. These increases are not inappropriately large. In
fact, for most violations, they raise penalties only to the level where
they will have the same value, accounting for inflation, as they had in
1990.
In order to ensure that the effect of the newly increased penalties
does not degrade in the same way, PAWA also provides for inflation
adjustments for civil penalties based on increases or decreases in the
Consumer Price Index (CPI). The legislation would be made even stronger
if the adjustments occurred automatically. Unlike most other Federal
enforcement agencies, the OSH Act has been exempt from the Federal
Civil Penalties Inflation Adjustment Act, so there have not even been
increases in OSHA penalties for inflation, which has reduced the real
dollar value of OSHA penalties by about 39 percent. PAWA's penalty
increases are necessary to create at least the same deterrent that
Congress originally intended when it passed the OSH Act almost 40 years
ago. 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.
Question 2: Your testimony supports provisions that would expand
the rights of workers and their representatives to contest OSHA
citations and modifications. In which states are these rights already
provided in an OSHA state plan? Please explain why expanding contest
rights under Section 10(c) of the OSH Act for workers is important?
Answer: Seven of the 27 States that operate OSHA-approved State
Plans have statutory provisions that give employees expanded contest
rights. In Kentucky, Minnesota, South Carolina, and Tennessee, in
addition to contesting the period set for abatement, employees may also
contest the citations and penalties. In Michigan, which has a two-step
contest process, employees initially may contest only the abatement
period, but may appeal the agency's proposed decision on the abatement
period, classification of violation classifications and penalties to
the Appeals Board. In New York and New Jersey, whose approved State
Plans are limited to State and local government employees only,
employees may contest the abatement period, citation and penalty.
In discussions with those State Plans which already offer these
rights, we understand that employees rarely exercise these additional
rights, but that when they do, it does not negatively impact the
contest process.
Question 3: Mr. Snare's testimony on behalf of the Chamber of
Commerce states that the victim's rights provisions in the Protecting
America's Workers Act (PAWA), which allows families to discuss
investigations with the Secretary of Labor, express views on
settlements, and present their views to Administrative Law Judges, will
provide little value ``other than to sensationalize presumably already
emotional and sensitive matters.''
a. Do you agree with the views of the Chamber of Commerce in this
matter?
b. Are there benefits to OSHA from having families of victims
involved with the investigation, or in the settlement or adjudicative
process? What are these benefits?
c. Should there be limits on victim's families in providing
information to investigators or involving victim's families in the
settlement or adjudicative process? If so, what should those limits be?
d. Does OSHA have any data on the extent to which OSHA complies
with its Field Operations Manual on interviewing family members and
maintaining contact through the investigation?
e. Would OSHA support Congress in establishing a legal right for
victim's families to participate in proceedings before the OSHA Review
Commission, and to provide information from the case file to the family
so they can meaningfully participate?
Answer:
a. No, OSHA does not agree with the views of the Chamber of
Commerce on this matter. Family members and co-workers are sincerely
interested in learning how the incident occurred, finding out if
anything could have been done to prevent it, and knowing what steps the
employers and employees will take in the future to ensure that someone
else is not similarly injured or killed. Moreover, accident victims and
those close to them can often provide useful information to
investigators. Family members' interest aids in advancing safety and
health in the workplace while providing closure for family. In
contrast, when an affected party, such as a family member, is left out
of the investigation and the settlement process is not transparent,
family members often are traumatized. This lack of information and
transparency often makes family members unhappy and discontented. OSHA
Directives establishing procedures for fatality investigations provide
that victims and their families should be informed about citation
procedures and about settlements, and require investigators to talk
with 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. No one is affected more by a workplace tragedy than
workers and their families, so we fully recognize and appreciate their
desire to be more involved in the remedial process.
b. Yes, having family members involved in the investigation does
have benefits. Involving family members can help the inspector and the
Agency better understand the work activity performed by the deceased.
Employees frequently discuss work activities and co-workers with family
members during non-work hours. After a fatality has occurred, speaking
with family members sometimes reveals concerns related to the incident
that the worker mentioned at home (such as the failure of the employer
to provide the right equipment or equipment being in a state of
disrepair). Family members may also be able to provide the names of
coworkers with whom the victim frequently worked, which in turn may
allow for a better understanding of how a work activity or task is
normally performed. After an accident, coworkers may also share
information with a victim's family that they might not share with an
OSHA inspector or the employer. These examples demonstrate why it is
important to involve family members in the investigation process.
c. We see no reason to limit the ability of families to provide
information to OSHA during an investigation; however, some
clarification might be useful in regard to the procedures for
participation in settlement discussions and adjudicative proceedings.
d. OSHA does not specifically track data associated with
interviewing family members and maintaining contact during the
investigation; however, several additional measures are taken to ensure
field staff comply with procedures found in the Field Operations Manual
(FOM) and OSHA's fatality investigation procedures. For example, many
area offices designate a fatality liaison that is responsible for
reviewing fatality-related actions and inspection information prior to
notifying the Regional and National office. Further, area offices often
develop fatality/catastrophe checklists to ensure all required steps
are taken during the course of an investigation. Compliance staff also
utilize the case file diary sheet to note key activities throughout the
course of an investigation, which may include meetings, interviews, and
phone calls with family members. Upon completion of a fatality
investigation by a compliance officer, the team leader and area leader
thoroughly review the file. Finally, in furtherance of accountability,
OSHA, through its Regional offices, conducts periodic audits of area
offices to review key program areas and a representative number of
inspection files for compliance with OSHA policy and procedures. A
number of fatality investigations would be included as part of the area
office audit.
e. No one is affected more by a workplace tragedy than workers and
their families, so we fully recognize and appreciate their desire to be
more involved in the remedial process. OSHA supports the PAWA
provisions that would enable workers and families to provide
information to OSHA during an investigation; however, it is not
appropriate for OSHA to comment on the OSHA Review Commission's
proceedings.
Question 4: Mr. Snare's testimony on behalf of the Chamber of
Commerce says that ``Enforcement and penalties do not prevent workplace
fatalities and injuries: they are imposed after fatalities and injuries
have occurred.'' Isn't it the case that OSHA also levies penalties
following complaint inspections and programmed inspections, and that
these actions help prevent accidents? What percentage of OSHA's
penalties are assessed after fatalities and injuries have occurred?
What percent follow programmed inspections or complaints? Please
provide percentages for the past two years.
Answer: Yes, OSHA does levy penalties following complaint
inspections and programmed inspections. In fact, OSHA can levy
penalties as the result of any inspection, regardless of what prompted
it. The Agency believes that the issuance of citations, and the
required abatement of hazards and associated penalties, does prevent
accidents. In fiscal year 2009, OSHA issued almost $92 million in
penalties. Approximately eight percent of those penalties were assessed
as the result of fatality/catastrophe investigation. Approximately 71
percent followed programmed inspections or complaint inspections.
Please see detailed information for the previous two fiscal years
provided in the table below.
FY 2008 AND FY 2009 FEDERAL OSHA CURRENT* PENALTY DATA
------------------------------------------------------------------------
Data criteria FY 2008 FY 2009
------------------------------------------------------------------------
Total Current Penalties................. $92,710,026 $91,828,697
------------------------------------------------------------------------
Total Current Penalties for Fatality/ $12,919,213 $7,730,912
Catastrophe Inspections................
(Percent of Total Current Penalties) (14%) (8%)
------------------------------------------------------------------------
Total Current Penalties for Programmed $42,388,847 $46,419,204
Inspections............................
(Percent of Total Current Penalties) (46%) (51%)
------------------------------------------------------------------------
Total Current Penalties for Complaint $16,330,975 $18,685,114
Inspections............................
(Percent of Total Current Penalties) (18%) (20%)
------------------------------------------------------------------------
Data source: IMIS INSP6 Reports dated 3/23/2010.
*Current penalty--reflects penalty figures from open and closed
inspections.
Question 5: In amending the criminal provisions to the OSHA Act,
does OSHA support changing the current mens rea standard from
``willful'' to ``knowing''?
Answer: Yes, most federal statutes, including most environmental
statutes, contain a ``knowing'' mens rea standard rather than a
``willful'' standard.
DOL supports the efforts to amend the criminal provisions of the
OSH Act by changing the mens rea standard from ``willful'' to
``knowing.'' Doing so would bring those provisions into the mainstream
of federal criminal laws.
Congress has consistently used the ``knowing'' standard in criminal
provisions in public welfare statutes and in other contexts where, as
in the workplace, activities are highly regulated. It is reasonable to
assume that anyone involved in such areas is aware of that high degree
of regulation. Indeed, in such contexts, courts have recognized a
presumption of knowledge of the law. Cf. United States v. Int'l
Minerals & Chem. Corp., 402 U.S. 558 (1971) (explaining that when
dangerous or harmful devices or products, or obnoxious waste materials,
are involved, ``the probability of regulation is so great that anyone
who is aware that he is in possession of them or dealing with them must
be presumed to be aware of the regulation''). The justification for
this presumption has been described as follows: ``[t]o admit the excuse
at all would be to encourage ignorance where the lawmaker has
determined to make men know and obey.'' Holmes, The Common Law (Howe
ed. 1963). Use of the knowing standard in OSHA's criminal penalty
provision would be consistent with this rationale, as employers can
hardly be surprised to learn of the existence of standards, rules, and
orders pertaining to workplace safety, and the knowing standard places
an appropriate and fair burden on them to ``know and obey'' these
standards, rules, and orders.
Question 6: Currently Section 17(a) of the OSH Act provides for a
minimum penalty for ``willful'' violations. Does OSHA support a minimum
civil penalty for a ``serious'' violation or ``other than serious''? If
so, at what dollar level? If not, please explain why?
Answer: It is important to note that OSHA has administratively set
minimum penalties for serious violations. The current minimum penalty
for a serious violation is $100; when the proposed penalty would amount
to less than $100, a $100 penalty is still proposed. Under the proposed
administrative changes to OSHA's penalty policies, the minimum penalty
will increase to $500. The Agency supports any penalty policy that
provides an adequate deterrent effect. While discussion of statutorily
establishing a minimum penalty amount for serious and other-than-
serious has not occurred, OSHA is in the early stages of considering
whether violations directly related to fatalities should have increased
penalty amounts.
Question 7: Robert Fitch was killed at the Archer Daniels Midland
(ADM) plant in Lincoln, Nebraska in January 2009. OSHA issued 2
citations and proposed penalties of $10,000 related to violations of
the standard governing manlifts (29 CFR 1910.68). These two citations
were deleted as part of an informal settlement agreement which also
zeroed out the penalties.
a. Were there recognized falling hazards pertaining to the manlifts
at the ADM facility?
b. Was abatement of the hazard feasible? If so, what were the
feasible hazard abatement methods?
c. Did OSHA investigate whether there was history at this facility
where employees had fallen off the same or similar type of manlifts and
been hurt or killed? If not, why didn't OSHA make this inquiry?
d. Would OSHA compliance directives have allowed OSHA to use the
general duty clause under Section 5(a)(1) of the act to cite the
employer for falling hazards leading to the death of this worker? If
so, why wasn't it used?
e. Was a $10,000 penalty the maximum penalty available to OSHA for
a fatality? Is this sufficient to deter future non compliance?
f. Was the deletion of these two citations justified on the grounds
that 29 CFR 1910.68 grandfathered this belt driven manlift? What
specific provisions in this standard grandfathered equipment that
lacked fall protection and non-slip surfaces?
g. Was there a sound legal basis for deleting these two citations
totaling $10,000 in an informal settlement? If so, what was the legal
basis?
h. Is it the case that the family learned about the settlement from
the news media? Is this consistent with OSHA policy?
Answer:
a. Yes, falls from and around manlifts are recognized hazards.
b. Continuous belt manlifts, such as the one involved in this
incident, are dangerous pieces of equipment. The hazard could have
been, and eventually was, abated by the installation of personnel lifts
(elevators) to replace the manlifts.
c. Yes, an establishment search of the company was conducted via
the OSHA website during the inspection. There was no information
obtained from this search, or during the inspection, about any injuries
or fatalities associated with the manlift. OSHA also conducted
management and employee interviews and did not learn of any previous
incidents.
d. Continuous belt manlifts present a unique challenge to OSHA; as
previously stated, they are dangerous pieces of equipment. The OSHA
compliance directive on manlifts provides that a General Duty Clause
violation may be issued where the hazardous condition is easily
identifiable. In this case, no such condition was found.
e. OSHA penalties are determined based on the number of violations,
as well as the gravity of the violation. A violation that results in a
fatality incurs the maximum penalty permitted based on the hazards
being cited. In some cases, this may not be sufficient to deter
employers from violating the standards.
f. The deletion of the two citations was not based on grandfathered
provisions for belt driven manlifts. In the negotiated settlement
agreement, ADM agreed to install a manufactured personnel elevator in
exchange for deleting both citations. The installation of a personnel
elevator was far more protective than repair of the existing manlift.
g. OSHA's Field Operations Manual grants an Area Director the
authority to conduct informal conferences and make appropriate changes
to citations. Specifically, Area Directors may amend abatement dates,
reclassify violations (for example, willful to serious, serious to
other-than-serious), and modify or withdraw a penalty, citation, or
citation item, where evidence presented during the informal conference
establishes that the changes are justified.
An informal conference was conducted in this case and the decision
was made to delete the citations in exchange for the employer
installing a personnel elevator. The settlement with ADM vastly
improved the safety of its employees. The legal basis for
grandfathering certain manlifts was not considered because the informal
settlement was reached. However, that issue is currently being reviewed
for use as guidance in future cases.
h. OSHA's Field Operations Manual discusses notifying individual(s)
listed as emergency contact in the victim's employment records (if
available), and/or the otherwise determined next-of-kin. The Agency's
policy is to send the next-of-kin an inspection information letter,
normally within five working days of determining the victim's identity
and verifying the proper address to send communication.
In this case, the victim's employment record identified his son and
daughter as next-of-kin, and both individuals were notified by letter
of the inspection and citation information in accordance with OSHA
policy. It is my understanding that the victim's niece, who was not
designated next-of-kin and did not receive the inspection and citation
information, learned of the OSHA settlement agreement from the news
media. The Omaha Area Office's first contact with the victim's niece
was on January 14, 2010, when she requested information. She certainly
would have been provided with the citation information in March 2009 if
she had requested it at that time, or was designated as next-of-kin in
the victim's emergency contact information.
OSHA has decided that informing the next-of-kin of citations or
settlements by letter is not adequate and the Agency is in the process
of formally changing its procedures so that families are notified by
personal meeting or phone call.
Question 8: OSHA has launched a National Emphasis Program (NEP) on
underreporting of injuries and illnesses. How many inspections have
been initiated as of March 22, 2010, and of those inspections, please
provide statistics on the number of violations by NAICS code?
Answer: As of March 22, 2010, 63 recordkeeping NEP inspections have
been initiated. The majority of these inspections are still open, but
thus far, five involve recordkeeping citations (part 1904).
Question 9: Would OSHA's ability to protect worker safety in cases
where there was an imminent danger be facilitated if OSHA had the
ability to issue imminent danger shutdown orders without having to
first secure an injunction from a federal court judge?
Answer: OSHA's ability to protect worker safety in cases where
there is an imminent danger would be enhanced if it had the ability to
issue imminent danger shutdown orders without first having to secure an
injunction from a federal court judge. When a Compliance Safety and
Health Officer identifies an imminent danger and the employer will not
voluntarily eliminate it, the CSHO immediately consults with the Area
Director and obtains permission to post a Notice of Alleged Imminent
Danger. The Area Director then contacts the Regional Administrator and
determines whether to consult with the Regional Solicitor's Office to
obtain a temporary restraining order. The Regional Solicitor's Office
assesses the situation and, if warranted, will make arrangements for
the expedited initiation of court action. However, imminent danger
situations are often reported in locations that require considerable
travel time for the Agency to reach. In such cases, it would be
advantageous for the Agency to have the authority to call the employer
in question and order that work be stopped until an investigator
arrives on the scene.
Question 10: How many imminent danger orders were secured each year
between the beginning of FY 2005 and the end of FY 2009 under the OSH
Act? Please provide a timeline for each imminent danger proceeding,
showing the date and time of inspection, the date and time of
recognition of the imminency of the danger, the date and time when DOL
first sought an order, and the date and time when the Court order was
delivered to the employer.
Answer: During this time period, there were no judicial imminent
danger orders secured by federal OSHA.
Question 11: The PAWA discussion draft of March 9, 2010, makes
``any officer and director'' liable under the criminal provisions of
the OSH Act, in addition to employers as defined under Section 3 of the
OSH Act. Does OSHA support criminal liability for ``any officer or
director''?
Answer: This proposed amendment would bring OSH Act criminal
provisions more in line with those of certain Federal environmental
statutes, which include ``responsible corporate officer'' in their
definitions of persons to whom the statutes apply. The case law under
those statutes indicates that this statutory term will strengthen the
criminal liability provisions of the Act, and accordingly OSHA supports
the amendment.
Question 12: Mr. Frumin testified that where employers use contract
labor for especially hazardous tasks, the potential sanctions are non-
existent for the corporations and executives who own or control the
workplaces. In your view, how should this multi employer liability
problem be corrected? Does it require a legislative change?
Answer: OSHA does not agree that corporations and their executives
may escape liability under the Act by using contract labor to perform
hazardous tasks. Corporate owners may be found liable for hazards to
contract workers in several circumstances. First, the nature of the
relationship between the corporation and the hired workers may be such
that the corporation is the employer for purposes of the Act. The test
for determining an employment relationship looks to the hiring party's
actual control over the performance of the work and the working
conditions; labels such as ``independent contractor'' are not
controlling. Second, in multi-employer worksites in all industry
sectors, an employer that creates or controls a hazardous condition may
be cited even if the only employees exposed to the hazard are those of
another contactor. This means that a corporation may be liable if it
has general supervisory authority over the worksite, including the
power to correct safety and health violations by others, and fails to
exercise reasonable care to detect and prevent violations on the site.
Finally OSHA standards may impose duties on the corporate owner with
respect to hazards affecting contract workers on the site. For example,
the construction asbestos standard requires building or facility owners
to determine the presence, location and quantity of asbestos containing
material at the worksite and notify prospective employers bidding for
work whose employees can reasonably be expected to work near such
material. OSHA does not believe that a legislative change is required
at this time.
Question 13: The March 9, 2010 discussion draft allows employers to
seek a temporary stay of the abatement order. In issuing a stay, the
OSHA Review Commission must consider whether the employer had
demonstrated a substantial likelihood of success on its contest to the
citation, whether the employer will suffer irreparable harm absent a
stay, and whether a stay will adversely affect the health and safety of
workers. Mr. Snare's testimony on behalf of the Chamber of Commerce
states that requiring abatement of serious violations pending contest
of a citation case is ``unjustified'' and ``an outrageous trampling of
due process rights.''
a. Does OSHA agree with Mr. Snare that the requirement for
abatement pending contest of serious violations coupled with the due
process rights set forth in the discussion draft presents an
``outrageous trampling of due process rights?''
b. Are the due process rights for employers who object to an
abatement order for a serious violation under PAWA comparable to the
due process rights for mine operators who object to an abatement order
in the Mine Act?
c. Does Oregon OSHA require abatement of serious violations pending
contest? Has the adoption of the requirement for abatement of serious
hazards pending contest been challenged on due process grounds? If so,
has it been overturned by the Courts in that state?
Answer:
a. Under the proposed provisions in the PAWA, the applicant must
satisfy the traditional criteria for seeking a stay; these stay
criteria are similar to those that apply under a wide variety of state
and federal laws. In addition, PAWA calls for the Commission to develop
expedited procedures for processing such applications. Thus, the PAWA
provisions fall well short of being ``an outrageous trampling of due
process rights.''
Under the present OSH Act, abatement ordinarily is stayed while the
case is within the jurisdiction of the Commission, but after a petition
for judicial review has been filed, an employer must request a stay
from the court of appeals under 29 USC 660(a). The burden placed on the
employer to obtain a stay pending judicial review in the court of
appeals is not severe. It is OSHA's experience that employers rarely
seek such a stay when appealing a Commission order.
b. Yes, the proposed provisions of PAWA appear similar to the
comparable provisions of the Mine Safety and Health Act, at Sections
106(a)(2) and 106(a)(3).
c. Yes. Oregon's occupational safety and health statute (at ORS
654.078) delays abatement pending contest for nonserious violations but
requires abatement during contest for serious violations.
Although attorneys have objected, in State legislative hearings, to
the required abatement of serious violations during contest provision
on due process grounds, attempts to repeal this provision in the Oregon
legislature have been unsuccessful. There have been no Court challenges
of this provision.
______
[Whereupon, at 11:40 a.m., the subcommittee was adjourned.]