Lame duck Congress may toughen OSHA
For an agency so widely feared and demonized by American business, the Occupational Safety and Health Administration is a relative pushover.
True, OSHA occasionally hits employers with big fines, like the $50 million BP recently agreed to pay for failing to fix the sorts of problems that led to a refinery explosion and the deaths of 15 workers in Texas City, Texas, five years ago.
But the 40-year-old law under which the agency operates limits its ability to threaten miscreants with stiff prison sentences – even in cases of gross misconduct that kill workers – and to hold company executives personally accountable for dangerous conditions that go uncorrected.
Compared to the Environmental Protection Agency, which has tough statutes such as the Clean Air Act and Clean Water Act at its disposal, OSHA is a paper tiger.
A willful safety violation that leads to the death of a worker is at most a misdemeanor, punishable by no more than six months in prison and a maximum fine of $10,000, according to the Occupational Safety and Health Act of 1970. Under environmental law, knowingly exposing someone to hazardous waste is a potential felony that carries up to 15 years in prison and a fine of up to $250,000. Indeed, under the Wild Free-Roaming Horses and Burros Act, killing or merely harassing one of the four-legged creatures on public lands can result in a year behind bars.
Seeking to correct such disparities and give OSHA more ammunition in other areas, Democrats in Congress crafted OSHA reform legislation that was folded several months ago into another bill, the Miner Safety and Health Act of 2010. The legislation, supporters say, would bring OSHA in line with other regulatory agencies for criminal penalties. It also would raise civil penalties, enhance protections for whistleblowers, and require employers to correct safety problems while they contest citations with the agency.
Woolsey Says Bill ‘Crucial’
“It’s not totally out of the question that it could be part of the lame duck” session of Congress after the Nov. 2 elections, Rep. Lynn Woolsey, a California Democrat who chairs the House Subcommittee on Workforce Protections, told the Center for Public Integrity this week.
“It’s crucial that we bring the law into the 21st century,” said Woolsey, a co-sponsor of the miner bill. “Without stiffer penalties, everything we do and say becomes virtually meaningless.” In fiscal year 2009, according to an analysis by the AFL-CIO, the average OSHA fine for a serious violation was a mere $965.
Business is fighting back. A group called the Coalition for Workplace Safety, whose members include the U.S. Chamber of Commerce and the National Association of Manufacturers, has launched a vigorous campaign against the OSHA portion of the legislation.
“The problem with this bill is that it’s very unbalanced,” said Marc Freedman, executive director of labor law policy at the Chamber. “It’s all about one concept, which is increasing penalties. Their theory of deterrence is, I don’t think, as effective as guidance and compliance assistance.”
Criminal Prosecution Threat is Deterrent
David Uhlmann, former chief of the Justice Department’s Environmental Crimes Section under President George W. Bush, disagrees.
“A credible criminal prosecution threat deters wrongdoing more than any other remedy available to the government – even large civil penalties,” said Uhlmann, now director of the Environmental Law and Policy Program at the University of Michigan Law School. “The U.S. Chamber of Commerce is supposed to promote business activity and responsible business practices in the United States. Far from opposing this legislation, they should be leading the charge in supporting it.”
According to Department of Labor data reviewed by the AFL-CIO, only 79 cases have been prosecuted under the Occupational Safety and Health Act in the past 40 years; the defendants served a combined 89 months in prison. During the same period, there were more than 360,000 workplace deaths.
In contrast, the AFL-CIO says EPA data show that there were 387 criminal prosecutions under environmental laws in fiscal year 2009 alone. Those cases resulted in a combined 76 years of prison time and $96 million in fines.
At the Justice Department, Uhlmann used mostly environmental statutes to go after McWane Industries, a pipe-manufacturing firm with an abysmal safety record. Uhlmann and his fellow prosecutors won convictions against five McWane plants in New Jersey, Utah, Alabama and Texas. Four officials from the New Jersey plant, including the plant manager, were sentenced to a combined 147 months in prison.
“There’s no question that the prosecutions we brought had a profound effect on the company and created a significant attitude shift,” Uhlmann said.
Employers Demand Due Process
Freedman emphasized that the Chamber has no interest in defending “the known bad actors out there” and that “enforcement should always be a part of the mix.” But the legislation goes too far, he said, depriving employers of their due process rights and “skewing the system rather significantly against employer interests.”
Apart from boosting criminal penalties – what’s now a misdemeanor would become a felony, with a maximum prison term of 10 years for a first offense and a maximum fine of $250,000 – the OSHA section of the miner bill would make it easier for whistleblowers to seek redress. It would ensure that they get a hearing under the much-criticized OSHA administrative process and allow them to go to federal court if the agency fails to act in a timely manner.
The bill would end the practice of employers refusing to address potentially life-threatening safety violations while they contest OSHA citations. And it would subject company executives and directors to criminal prosecution if they knew about hazards that led to worker deaths or serious injuries and failed to take preventive action.
The Chamber is unhappy with these provisions.
Forcing a company to abate a hazard while it’s challenging a citation could lead to expensive workplace shutdowns, Freedman said. And holding executives and board directors criminally liable for accidents could dissuade qualified people from taking such jobs. “If you’re in those positions, you’re at the mercy of the least attentive employee of the company,” Freedman said.
Rep. Woolsey’s response: “Any decision that would kill workers or put them in unsafe conditions goes all the way up the line.” And she noted that Oregon, which has a state-run worker safety program, has for more than 30 years required employers to fix hazards while they contest citations. “There are no complaints that [Oregon] inspectors are closing production lines,” the congresswoman said.