Outten & Golden: Empowering Employees in the Workplace

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Protecting America’s Workers Act Introduced. Would Strengthen OSHA and Workers’ Rights

Friday, February 8th, 2019

A new and improved Protecting America’s Workers Act (PAWA) has been introduced into the House of Representatives by Congressman Joe Courtney (D-CT). Similar versions of this bill has been introduced every year for over a decade.  The bill number is H.R.1074 and a copy of it can soon be found here. (In the meantime, here is a PDF and a Section-by-Section analysis.)

As with past PAWA bills, this version, which has 27 co-sponsors, extends OSHA coverage to public sector employees in those states where they’re not currently covered (as well as federal employees), strengthens anti-retaliation protections for workers, requires the abatement of hazards during contests by employers and toughens criminal penalties.

In addition, this year’s bill also includes provisions to codify OSHA’s severe injury and electronic injury reporting requirements (including the detailed reporting by large employers recently withdrawn by OSHA). It reverses the revocation of the “Volks Rule” which was repealed by Congress and the President under the Congressional Review Act at the beginning of the Trump administration.

PAWA significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions. 

The bill significantly expands workers’ rights to participate in improving health and safety in their workplaces, and enhances the ability of OSHA to effectively enforce safe working conditions.

Courtney introduced the bill on the anniversary of the 2010 Kleen Energy power plant explosion that killed 5 workers in Middletown, Connecticut.  According to Courtney,

Today, on the ninth anniversary of the accident, it’s appropriate that my colleagues and I reintroduce this legislation to make critical, decades-overdue updates to OSHA. Every day, 14 employees go to work and never come home to their families due to fatal on-the-job injuries. The OSHAct made great strides in protecting American workers, but since it was enacted the American workplace has modernized and diversified. The law should keep up with the realities that workers face on the job today. Our bill is focused on updates and compliance, not on petty, punitive measures against employers, and will ensure that today’s workforce is empowered and protected by our nation’s chief worker safety law.

What’s In PAWA?

If passed, PAWA 2019 would:

  • Expand OSHA coverage to millions of state and local government employees in the 24 states where they’re not currently covered and broaden OSHA coverage to include federal employees.   
  • Authorize felony penalties against employers who knowingly commit OSHA violations that result in death or serious bodily injury and extend such penalties to corporate officers and directors. Under the current law, criminal penalties for the willful death of a worker are only misdemeanors. In addition, knowing violations which cause or contribute to the death of a worker would have a maximum fine of $250,000 for individuals and $500,000 for organizations, or a 10-year prison term, or both.  Death of a worker would not be the only violation that could send an employer to jail. Knowing violations which cause “serious bodily harm” are subject to maximum fine of $250,000 for individuals and $500,000 for organizations or a 5-year prison term, or both.
  • Codify the Susan Harwood Training Grant Program to provide grant funding for training and education programs for workers and employers. President Trump has attempted to eliminate the program in his last two budgets.
  • Reinstate the “Volks Rule,” making it an employer’s ongoing obligation to maintain accurate records of work-related illness and injuries. This reverses a Congressional Review Act resolution that eliminated OSHA’s authority to issue citations for recordkeeping violations that occurred within the 5 year record retention period and undermined OSHA’s ability to enforce against employers who violate requirements to record workplace injuries and illnesses.
  • Improve whistleblower protections for workers who call attention to unsafe working conditions, including extending the time allowed to file a whistleblower complaint from 30 days to 180 days.   
  • Expand workers’ right to contest citations and penalties. An employee or employee representative may challenge the severity of a citation (e.g. willful, serious, repeated, etc.) and/or the size of the proposed penalty. Currently employees and their representatives are only allowed to contest the length of the abatement period.
  • Clarify that an “authorized employee representative” under the OSHAct does not just refer to an employee of the employer, or a union representative, but rather “an individual or organization designated by one or more employees of the employer.” OSHA had clarified this change by interpretation during the Obama administration, but that interpretation was withdrawn under the Trump administration.
  • Ensure worker safety is protected in a timely manner by mandating that employers correct hazardous conditions while a citation is being contested.  Currently, the employer does not have to correct a violation if the employer challenges the citation, leaving workers in harm’s way.   Currently, OSHA is often forced to significantly reduce or eliminate penalties or downgrade citations in order to secure timely abatement of hazards. Employers would have a right to seek a temporary stay of OSHA’s abatement order through an expedited proceeding before a Review Commission Administrative Law Judge.
  • Improve protections for employees currently covered by other agencies, such as the FAA and employees of the Department of Energy’s nuclear facilities by enabling OSHA to determine the adequacy of those agencies’ workplace safety and health programs.  Currently the agency only only has to state
  • Update obsolete consensus standards within two years that were incorporated by reference when OSHA was first enacted in 1970.   There are approximately 200 consensus standards that cover general industry and maritime that were initially adopted in the early 1970s and for which lengthy notice and comment rulemaking was not required.
  • Deter high gravity violations by providing authority for increased civil monetary penalties for willful and serious violations that cause death or serious bodily injury.   
  • Require employers to report injury and illness records to OSHA to provide the agency with data to effectively target unsafe workplaces.   This would codify OSHA’s Severe Injury Reporting rule (which now exists as a regulation), as well as the “electronic recordkeeping” regulation that OSHA partially rolled back last week. 
  • Require OSHA to investigate all cases of death and serious injuries that occur within a place of employment.   
  • Establish rights for families of workers who were killed on the job by giving families the right to meet with OSHA investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.   
  • Improve protections for workers in state plans by allowing federal OSHA a more expedited procedure to take over enforcement in those states where the plan fails to meet minimum requirements needed to protect workers’ safety and health. GAO would be required to conduct a study to determine whether OSHA oversight of state plans, and state plan funding is adequate.
This article was originally published at Confined Space on February 8, 2019. Reprinted with permission.
About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

OSHA Announces Rollback of Recordkeeping Requirements

Wednesday, January 30th, 2019

In its first completed rollback of a previously issued regulation in the Trump administration*, the Occupational Safety and Health Administration today announced its final recordkeeping regulation that eliminates the requirement that certain employers send in to OSHA detailed information about injuries and illnesses that employers already collect.  The Office of Information and Regulatory Affairs announced that it had rushed to clear the rule last week. The full 104 page text of the new rule and the preamble can be found here.

The main excuse OSHA uses for the rollback is “to protect worker privacy.” Ignoring the fact that employers were not required to send any confidential information to OSHA in the first place, the agency’s press release argues that

By preventing routine government collection of information that may be quite sensitive, including descriptions of workers’ injuries and body parts affected, OSHA is avoiding the risk that such information might be publicly disclosed under the Freedom of Information Act (FOIA). This rule will better protect personally identifiable information or data that could be re-identified with a particular worker by removing the requirement for covered employers to submit their information from Forms 300 and 301.

The new rule does not affect the current requirement that employer send in to OSHA the summary of injuries and illnesses (OSHA Form 300A), although the agency makes clear that they do not intend to release the summary information to the public for at least 4 years because they allege that the data is not subject to the Freedom of Information Act which would normally require public disclosure. OSHA’s reason is that “disclosure of 300A data through FOIA may jeopardize OSHA’s enforcement efforts by enabling employers to identify industry trends and anticipate the inspection of their particular workplaces.” [emphasis added]

This is simply the business community’s attempt to ensure that the public have as little information as possible about injuries and illnesses — and why they happen — in American workplaces.

Regulatory experts have a highly technical term for such explanations: “lame.”

First, an employer’s ability to anticipate an inspection is actually a good thing because it may encourage the employer to fix unsafe conditions. Second, in previous enforcement programs using similar data, OSHA actually warns high risk employers that they are on a focused inspection list, and encourages them to use OSHA’s compliance assistance resources to eliminate unsafe conditions before they are inspected.  In other words, public disclosure of such information is actually a feature of this program, not a bug.

When this regulation was initially issued under the Obama administration, OSHA intended not just to make the information available to interested parties, but to post it on the agency’s website so that potential workers would be able to judge the relative safety of their employers, and employers could use the information to benchmark their safety record against similar employers.

OSHA received 1880 comments on the rollback proposal which was rushed through OSHA and OIRA to ensure its completion before a possibly unfavorable court decision.

Will the Roll-back Regulation Stand Up in Court?

Corks are undoubtedly popping at the Chamber of Commerce this morning, although they wanted OSHA to repeal the entire regulation, including collection of the 300A summary and the language prohibiting employers from retaliating against workers for reporting injuries and illnesses.

Their celebration may be short lived, however. Just as night follows day, lawsuits will follow this announcement.  And statistically, a lawsuit is likely to be successful in this administration. The New York Times today published an article today detailing how the Trump administration has chronically ignored the Administrative Procedure Act which governs agency rulemaking. The article notes that:

An analysis by the Institute for Policy Integrity at New York University School of Law shows that more than 90 percent of court challenges to major Trump deregulatory actions have been successful so far. By the institute’s count, 30 big rules have been challenged, and the courts have found for the litigants 28 times…In a typical administration, the government wins on such challenges around 70 percent of the time, said Richard Revesz, a law professor at N.Y.U. who specializes in environmental law. “This is truly aberrational,” he said.

Information is Power

The reasoning used by OSHA seems similar to the weak reasoning used in the agency’s proposal. (You can read my analysis of the proposal here.)

But in short, what we have here is the business community’s continuing effort to ensure that the public has as little information as possible about workplace injuries and illnesses — and why they happen — in American workplaces.  Information is power. And the more power that the Trump administration and its business supporters can keep from workers and the public, the better.

This blog was originally published at Confined Space on January 24, 2019. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Mugno or not to Mugno: The Senate Must Decide

Tuesday, December 11th, 2018

As the sun sets on the 115th Congress and the mid-point of this term of the Trump administration, the sun also seems to be setting on any chance of seeing an Assistant Secretary for OSHA in the foreseeable future.

Or maybe not….

You may recall that former FedEx Ground safety director and Chamber of Commerce favorite Scott Mugno was nominated by President Trump in October 2017, has survived a Senate confirmation hearing and has been approved by the Senate Health, Education, Labor and Pension (HELP) committee (twice) on party-line votes. But Mugno’s nomination has never come to a final vote on the floor of the Senate.

Politico’s Morning Shift reminded us last week that the nomination of Mugno, as well as the nominations of Cheryl Stanton for the agency’s Wage and Hour Division, William Beach at the Bureau of Labor Statistics, and Gordon Hartogensis with the Pension Benefit Guaranty Corporation continue to be mired in a fight over the confirmation of two Democratic favorites: Mark Gaston Pearce to be reconfirmed for a seat on the National Labor Relations Board, and Chai Feldblum to be reconfirmed for a seat on the Equal Employment Opportunity Commission. (There are two other DOL nominees out there as well: John Pallasch for assistant secretary for employment and training was cleared by the Senate Committee last week, and Bryan Jarrett for assistant secretary for policy has not yet had a hearing. )

The business community (e.g. Chamber of Commerce and others) and their Republican cohorts in the Senate hate, Hate, HATE the idea of confirming Pearce and Feldblum more than they love the idea of having someone head the other labor agencies. The Chamber opposes Pearce because he “engineered some of the most harmful decisions and regulations in the Board’s history.”  And even though he was only on the Board from 2010 to 2018, he somehow managed to reverse “more than 4,550 years of precedent,” causing King Tut to roll over in his sarcophagus. According to Bloomberg Law, the Republicans fear that Pearce will slow down their efforts to roll back worker protections that were strengthened under Obama. But their real worry is that if Trump is defeated in 2020, Pearce would be the likely candidate to become NLRB Chair — with the downfall of Western Civilization shortly to follow.

Chai Feldblum served as EEOC chair throughout the Obama administration and has been renominated by Trump.  Her main sin is being an “open” lesbian and gay rights activist which is more important than the fact that she is a graduate of Harvard Law, clerked for Supreme Court Justice Harry Blackmun, and is a Georgetown Law School professor.  Utah Senator Mike Lee is particularly incensed with Feldblum’s nomination, calling her a “threat to religious liberty and the institution of marriage.”

Senator Patty Murray, ranking member of the HELP committee reemphasized last week that Democrats would continue to block the Labor Department nominees until the Senate confirms Pearce and Feldblum.

Why did Trump renominate these candidates who threaten the American way of life?

Because the party controlled by the President gets three appointees to these Boards, while the minority party gets two. Traditionally, the parties get to put up their own candidates who are then nominated by the President. In other words, they’re traditionally a package. Technically, the Democrats can’t block the DOL nominees because the Republicans eliminated their ability to require 60 votes, but Democrats can force Senate Leader Mitch McConnell to consider the confirmation of each candidate separately (instead of as a package), which would take up an enormous amount of scarce Senate floor time that McConnell would rather use to confirm Trump’s judges and higher level nominees. If the nominees aren’t confirmed in the next couple of weeks before this session of Congress ends, the entire nomination process starts all over again.

So what will happen? Will the dam break next week? Rumors of high level talks between the Democrats, McConnell and the White House have been flying, but if I had a nickel for every time a deal was reported to be imminent…

This blog was originally published at Confined Space on December 6, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

The Other Victims of California’s Fires: Workers Inhaling Toxic Fumes

Wednesday, November 14th, 2018

With the death toll now standing at 42 and with some 7,200 structures destroyed, officials are now calling the wildfire in Paradise, CA (dubbed the “Camp Fire”) the deadliest and most destructive in California’s recent history. Two other massive fires—dubbed the Hill Fire and Woolsey Fire are simultaneously scorching Southern California.

As frontline firefighters—including many prison laborers—continue to battle the blaze while healthcare providers work around the clock treating fire victims, millions of other workers far away from the inferno are feeling a secondary impact: toxic smoke.

In the San Francisco Bay Area, over 160 miles away from the Camp Fire, air quality dramatically declined almost immediately after the fires broke out. Over the past week, AirNow, a government website reporting real-time air quality data has shown the Bay Area hovering between 150-200 on the federal Air Quality Index (AQI), surpassing 200 (or “very unhealthy” levels) in parts of the Bay. The higher the AQI value, the more polluted the skies are and the more concern there is for public health.

This week, the Bay Area also saw the second highest amount of fine particulate matter in the air ever recorded. This substance is not only made up of smoke from charred forests, but could contain everything that gets incinerated when residences go up in flames: cars, fuel, batteries, light bulbs, cleaning products, plastics, upholstery and more.

Public health officials have been advising residents of affected areas to stay indoors to avoid the unhealthy air that can lead to headaches, dizziness, shortness of breath, coughing, wheezing, eye irritation and worse.

However, for many workers who work outdoors for a living, that’s easier said than done.

While many white collar workers don protective masks to commute to office jobs where recirculated air conditioning provides some measure of protection from the smoky skies, hundreds of thousands of farmworkers, day laborers, landscapers, construction workers, public works employees and others have no choice but to work through the harmful haze—at great detriment to their health.

Many of these workers hail from neighborhoods and worksites already facing increased levels of toxins. Compounding the situation, these are also often the very same workers who are least protected by worker health and safety regulations.

“It’s been horrible,” says Kywanna Reed, who has been working 10-hour days outside this week as a traffic controller. “I wake up with headaches. I go to sleep with headaches. I have a headache right now, and a bag of headache medicine in the truck. My whole respiratory system is messed up. My coworker had a nosebleed and went home sick.”

Reed said her employer, American Construction & Supply Inc., did not provide masks to employees.

“Employers should pass out masks and you could choose to wear them or not,” says Reed, “But right now, they’re not doing anything.”

Other workers, however, say their employers are providing masks while verbally encouraging workers to protect themselves.

Cesar Fragoso, who works as a landscaper for Planting Justice, said the non-profit nursery in East Oakland passed out masks to employees.

“I work outside every day, weeding and transplanting plants. I can feel the smoke in my nose. My eyes started itching. I’ve been coughing. The masks help, but it’s tragic that we have to go through this in order for people to acknowledge what we are doing to the environment,” says Fragoso.

A 2017 news release from the California Division of Occupational Safety and Health (Cal/OSHA) advises that “Employers with operations exposed to wildfire smoke must consider taking appropriate measures as part of their Injury and Illness Prevention Program under Title 8 section 3203 of the California Code of Regulations and as required under section 5141 (Control of Harmful Exposure to Employees).”

Those measures include “using a filtered ventilation system in indoor work areas,” “limiting the time that employees work outdoors” and “providing workers with respiratory protective equipment.”

However, as worker advocates note, holding employers accountable for taking such measures can be a challenge.

“Even though people we know from Cal/OSHA have made a tremendous effort, their presence in the field is so limited that it is really hard for them to do any kind of enforcement or implementation,” says Dinorah Barton-Antonio of the Labor and Occupational Health Program at UC Berkeley.

Other workers say they wouldn’t use a mask even it was provided, citing the already highly dangerous nature of their industries. Sixty-three-year-old carpenter Ruel Bernard smelled the smoke and started sneezing this week as he hung siding at a residential construction site, but chose not to wear a mask.

“Us older generation of construction workers, our bodies have been toxic waste dumps from the get-go. I started working in New York in 1971, breaking down plastic walls, climbing around in attics filled with insulation and dust. Every day I hurt myself at work, so at some point you’re just like ‘Fuck it,’” explains Bernard. “I know that’s a dinosaur, macho attitude. But that attitude helps us survive in this industry.”

The idea that the smoke from the wildfires is just one ingredient in an already toxic soup of working conditions resonates in farmworker communities.

Lucas Zucker is the Policy Director at Central Coast United for a Sustainable Economy (CAUSE), which works with immigrant farmworkers in Ventura and Santa Barbara Counties. During last summer’s wildfires, CAUSE distributed N95 masks to workers in the field.

“Farm work is already dangerous on the day-to-day. This area has some of the highest use of toxic pesticides,” notes Zucker. “But then with the wildfires, the ag industry pushes to harvest their crop quickly to prevent damage to crops like strawberries and avocados. So we actually see an increase in production, with obvious implications for human health. Whereas a white collar worker might be able to take time off and have that paid, for farmworkers who get paid piece rate it’s hard for them to take that time off if they’re already living paycheck to paycheck.”

While much of the conversation in the Bay Area about protection from the smoke has focused on masks, some workers point to having power on the job—whether that be in the form of a union contract or worker ownership—as one of the largest factors in ensuring worker health and safety.

“We have a union here. It helps us get through things like this because I feel like we have some camaraderie and I can take steps to take care of myself without worrying that I’ll lose my job,” says Daniel DeBolt, who works as a deckhand on the ferry boats that shuttle tourists and commuters from Oakland to San Francisco and who has been experiencing headaches and fatigue all week.

Worker power on the job was also key for Dante Ortiz from Root Volume, a worker-owned landscaping cooperative.

“In 20 years of building gardens in wildfire-prone areas like Colorado and California, I’d never had a day where we had to pull out because of air quality, but that happened last Friday. We were doing heavy excavation, trenching for retaining walls. It’s hard work. You’re breathing heavily, which is the worst thing you could be doing,” says Ortiz. “So we all decided it was time to get out of there. Being in a worker cooperative gave us the agency to make that decision for ourselves.”

However, other workers like day laborers don’t have stable employment or consistent employers.

According to Gabriela Galicia, the Executive Director of the Street Level Health Project in Oakland, CA, “Workers stand on the corner for up to eight hours a day waiting for work. Many corners are already near toxic fumes, and now workers are out in the smoke too.”

Galicia notes that many workers are already thinking about heading north in search of work rebuilding fire-devastated communities, which carries its own risks to workers’ rights and their health. Worker exploitation and wage theft has marred reconstruction in post-disaster recovery efforts across the country.

“We’ve seen too many natural disasters where day laborers have been taken advantage of,” says Galicia. “They are human beings. They’re helping to rebuild. Treat them with dignity.”

As human-driven climate change intensifies and more of California becomes engulfed in flames, workers wonder whether toiling in toxic air is becoming “the new normal”—or if there can be a just transition to a new way of relating to land and labor.

CAUSE’s Lucas Zucker explains, “Ultimately, we need state or federal disaster aid that can fill in the gaps for workers exposed to disaster or toxic conditions so that they don’t have to make that horrible choice between putting food on their family’s table or being exposed to toxic conditions.”

This article was originally published at In These Times on November 13, 2018. Reprinted with permission. 

About the Author: Brooke Anderson is an Oakland, California-based organizer and photojournalist. She has spent 20 years building movements for social, economic, racial and ecological justice. She is a proud union member of the Pacific Media Workers Guild, CWA 39521, AFL-CIO.

Hiding Injuries at Tesla: Where The Worker Still Doesn’t Matter.

Thursday, November 8th, 2018

Under-recording of workplace injuries and illnesses is bad, and far too common. But at the automaker Tesla, in Fremont, California,  under-recording is more than a paper exercise in deception — at Tesla it means withholding needed medical treatment of injured workers so that their injuries aren’t report on OSHA logs.

We wrote previously about reports that workers are getting hurt at Tesla and that many of those injuries are not being recorded.  Earlier this year, Reveal reporters Will Evans and Alyssa Jeong Perry documented how Tesla put style and speed over safety, undercounted injuries and ignored the concerns of its own safety professionals. CalOSHA has inspected the company a number of times and found recordkeeping violations.  Now Evans shows the many ways that Tesla is keeping injuries off the OSHA logs.

Despite a clear pattern of inaccurate reporting, federal OSHA is unable to cite patterns of under-reporting after Congress repealed OSHA’s “Volks” regulation at the beginning of the Administration. Throughout OSHA’s history, the agency had been able to cite employers who violated OSHA’s requirement to keep accurate records for five years. OSHA had issued a regulation addressing a court ruling against that practice, but Congress used the Congressional Review Act to repeal it. No OSHA can’t cite recordkeeping violations longer than 6 months before a citation is issued, making it impossible to cite patterns of violations like those committed at Tesla.

California has modified these restrictions slightly by allowing the agency to cite employers for recordkeeping violations six months from when Cal/OSHA first learns of the violation, instead of six months from when the violation occurred. But the bill was signed too late for the agency to take action against Tesla.

Background

Under-reporting injuries and illnesses on OSHA logs is nothing new.  Unlike fatality reporting, injury and illness reporting is conducted by employers. The Bureau of Labor Statistics (BLS) estimated in 2016, that nearly 3.7 million workers across all industries, including state and local government, had work-related injuries and illnesses that were reported by employers. But due to documented and widespread underreporting of workplace injuries, experts estimate that the true number is closer to  7.4 million to 11.1 million injuries and illnesses a year — two to three times greater than BLS estimates.  Much of the undercounting is the result of employers discouraging workers from reporting injuries and illnesses, either through direct retaliation or through more subtle means such as incentive programs or retaliatory drug testing.  That’s why OSHA’s “electronic recordkeeping regulation,” issued in 2015, forbids employers from retaliating against workers for reporting injuries and illnesses. The Trump administration recently issued a memo weakening the enforcement of that language.

In order to understand Tesla’s strategy, you need to understand how OSHA defines a “recordable injury.” According to OSHA regulations, work-related injuries must be recorded on OSHA injury logs if they require medical treatment beyond first aid, if they result in days away from work or if the worker is assigned job restrictions due to the injury.  Tesla’s practices were designed to avoid anything that triggers recording, according to former medical personnel who worked at Tesla.

To ensure that fewer injuries would be recorded, Tesla hired Access Omnicare, headed by hand surgeon Dr. Basil Besh, to run its factory health center. Access Omnicare promised Tesla it could help reduce the number of recordable injuries and emergency room visits. Reveal obtained a copy of Access’s proposal which stated that  “Access Omnicare’s model, with more accurate diagnoses, reduces “un-necessary use of Emergency Departments and prevents inadvertent over-reporting of OSHA (Occupational Safety and Health Administration) recordability.”

“Over-reporting?”

How to Under-count at Tesla? Let Me Count the Ways

To under-record, and under-record effectively requires some creativity.

Access Omnicare had a rule that injured employees could not be given work restrictions. According to a former Access physician assistant, Anna Watson.

No matter what type of injuries workers came in with – burns, lacerations, strains and sprains – clinic staff were under instructions to send them back to work full duty, she said. Watson said she even had to send one back to work with what appeared to be a broken ankle.

A medical assistant who formerly worked at the clinic remembered an employee who was sent back to work even though he couldn’t stand on one of his feet. Another employee passed out face down on the assembly line – then went back to work.

“You always put back to full duty, no matter what,” said the medical assistant.

Ambulances were highly risky as well, if your goal is to hide serious injuries.  Tesla forbids staff from calling 911 without permission after workers have been injured –even when fingers have been severed or employees have suffered serious injuries. Instead they put them in a Lyft or Uber and send them to a clinic after which they’re put back on the assembly line with no work modifications, even if they can barely walk. One worker’s back was painfully crushed when a hood fell on him. “I couldn’t walk, I couldn’t sit down. I couldn’t even stand up straight,” Stephon Nelson recalled. But Tesla refused to call 911 or send him to the hospital in an ambulance, putting him in an Uber instead.

Why? To save money? More likely because “911 logs become public records. And first responders, unlike drivers for ride-hailing services, are required to report severe work injuries to California’s Division of Occupational Safety and Health, the state’s workplace safety agency.”

Other tactics Tesla used were to claim that some injuries and illnesses were not work-related and refuse treatment to temporary employees:

Watson recalled one worker who had passed out on the job and went to the hospital because of her exposure to fumes in the factory. Even though a work-related loss of consciousness is required to be counted, no such injury was recorded on Tesla’s injury logs.

Temp workers hurt on the production line also were often rebuffed by the clinic, said former clinic employees. At one point, there was a blanket policy to turn away temps, they said.

Tracy Lee developed a repetitive stress injury over the summer when a machine broke and she had to lift car parts by hand, she said. Lee said the health center sent her away without evaluating her because she wasn’t a permanent employee.

By law, Tesla is required to record injuries of temp workers who work under its supervision, no matter where they get treatment. But not all of them were.

Beware the Night

Getting hurt during the day is bad enough. But getting hurt at night is especially dangerous because there are no doctors or nurses on duty.

Two medical assistants who used to work there said they often were left on their own – one on duty at a time – and struggled to tend to all the injured. Both had to do things such as take vital signs, which medical assistants aren’t allowed to do without on-site supervision, according to the Medical Board of California. Reveal granted them anonymity because they fear speaking out will hurt their careers. Dr. Basil Besh said no one works alone. Besh is hand surgeon who owns Access Omnicare which

For a severely injured worker lying on the assembly line, it could take 10 to 15 minutes for a medical assistant to arrive and then contact on-call doctors, a medical assistant said. Getting a code for Tesla’s Lyft account was a drawn-out process that could take hours, she said.

The medical assistants said they were alarmed and uncomfortable with the doctors’ orders to use Lyft because they worried some patients could pass out or need help en route. One worker directed to take a Lyft was light-headed and dizzy. Another had his fingers badly broken, contorted and mangled.

Moving Right Along

And despite promises from Tesla CEO Elon Musk to do better, Tesla has not cleaned up its act, according to Watson:

Many more injured workers never were counted, she said.  Tesla’s official injury logs, provided to Reveal by a former employee, show 48 injuries in August. Watson reviewed the list for the three weeks she was there and estimated that more than twice as many injuries should have been counted if Tesla had provided appropriate care and counted accurately.

And despite the fact that there is evidence that Tesla is violating the law, CalOSHA has not responded to the information Watson supplied to them.

Watson called Cal/OSHA officials to insist they investigate her complaint. She told them that she had detailed knowledge of a system that undercounted injuries by failing to treat injured workers. But Cal/OSHA officials told her that it wasn’t the agency’s responsibility, she said. They suggested contacting another agency, such as the medical board or workers’ compensation regulators.

Watson, meanwhile, has moved on to a new job

She said she just wants someone to make sure that Tesla workers get the care they need. “You go to Tesla and you think it’s going to be this innovative, great, wonderful place to be, like this kind of futuristic company,” she said. “And I guess it’s just kind of disappointing that that’s our future, basically, where the worker still doesn’t matter.”

This blog was originally published at Confined Space on November 6, 2018. Reprinted with permission.

About the Author: Jordan Barab wasDeputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Mar-Jack: OSHA Inspectors “Are Not There For Us”

Tuesday, October 30th, 2018

I wrote earlier this month about a court decision in the Mar-Jac case restricting OSHA’s ability to expand inspections at poultry plants — even when the company’s log shows high rates of injuries and illnesses — despite the industry’s record of unsafe conditions.

When conducting an inspection about a specific incident, you may recall, OSHA is only allowed to look at factors surrounding the incident and anything within the sight of the inspector. For that reason, when an OSHA inspector requested to inspect a worker’s locker where his tools were stored, Mar-Jac told the inspector that he could only walk through the plant if he agreed to wear a cardboard box over his head to blind him to any safety hazards.

The Atlanta Journal Constitution published an article earlier this week about the court decision and its effect on OSHA.

Asked why Mar-Jac didn’t want the OSHA inspector walking through its plant, [Larry Stine, an attorney for Mar-Jac] told the AJC that Mar-Jac has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment. OSHA inspectors are “enforcement officers,” he said. “Their jobs and what they try to do is find violations. They are not there for us, to be safety consultants.”

Look at that last sentence a bit closer: “They are not there for us….” They’re just “enforcement officers.”

So who is OSHA there for?

The goal of an OSHA inspector is not just to “enforce” the law. The law is not the end. The law it the means to the ultimate end — which is to protect workers.

So the manager may be correct, they are not there for “us,” if by “us” he means managers and not the company’s workers (who, I guess, are not part of “us.”)  And, of course, OSHA is not there for “us,” if he believes that managers have no interest in maintaining a safe workplace — with, as I just said, is the whole point of enforcement.

So no, OSHA is not there to be a “safety consultant.” A company the size of Mar-Jac has more than enough resources to hire its own safety consultants before OSHA arrives to ensure safe conditions in the plant. (And smaller companies that can’t afford consultants can take advantage of OSHA’s free Onsite Consultation Program.)

And indeed, Mar-Jac boasts that it “has its own safety personnel to conduct reviews and look for issues in an ever-changing work environment.”

So if those reviews are useful, and the company actually implements the results of those reviews, they should have no problem allowing OSHA inspectors to wander anywhere they want to go in a plant.

But not according to Stine.

“Why,” Stine said later, “would you want to subject yourself to multiple fines where I would rather find it and fix it myself?”

Or, Mar-Jac workers and OSHA inspectors might ask, why would you fear multiple fines when you’ve allegedly found all the problems and fixed them yourself? And if you haven’t fixed them, why don’t you deserve multiple fines?

This blog was originally published at Confined Space on October 26, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

OSHA Weakens Workers’ Protections Against Retaliation for Reporting Injuries

Friday, October 12th, 2018

The Occupational Safety and Health Administration issued a memo Thursday weakening workers’ protection against employer retaliation for reporting injuries and illnesses.

Section 1904.35(b)(1)(iv) of the Obama administrations 2016 “Electronic Recordkeeping Rule” told employers that “You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

According to Deborah Berkowitz, former OSHA policy director under the Obama administration:  “Protection from retaliation when reporting an injury is a core worker right enshrined in both the OSHA law and OSHA regulations. It is outrageous that this Administration is trying to roll back these core protections and allow industry to further hide injuries and illnesses. ”

This is the same recordkeeping regulation that requires some employers to send in their injury and illness logs to OSHA, information that the Obama administration had planned to use for research, targeting inspections and publish on OSHA’s website. OSHA is currently proposing to repeal the second part of that regulation that would require employers to send in more detailed information.

Background

The Bureau of Labor Statistics (BLS) reports that around 3.7 million workers are seriously injured in the workplace every year. But the BLS and other researchers have shown wide-spread underreporting of injuries and illnesses — mainly because employers discourage workers from reporting — making the true toll to be two to three times greater—or 7.4 million to 11.1 million.

During the comment period leading up to issuance of the 2016 regulation, workers and researchers testified and submitted evidence about how employers discouraged reporting by retaliating against workers for reporting injuries and illnesses. The feared that the regulation would increase such retaliation and called for OSHA to strengthen protections beyond the weak language in Section 11(c) of the Occupational Safety and Health Act.

Protection from retaliation when reporting an injury is a core worker right enshrined in both the OSHA law and OSHA regulations. It is outrageous that this Administration is trying to roll back these core protections and allow industry to further hide injuries and illnesses.  — Deborah Berkowitz, former OSHA Policy Director

Employer associations like the Chamber of Commerce hated OSHA’s anti-retaliation language and some are particularly upset that OSHA didn’t include repeal of that language in their current attempt to weaken the regulation.

Of course, they would never admit to actually wanting to retaliate against workers from reporting, so they focused their opposition on two areas where retaliation was common that OSHA emphasized in the preamble to the regulation: rate-based incentive programs that discourage workers from reporting injuries, and post-injury drug tests that employers often require with the intent of discouraging workers from reporting injuries or illnesses.

The memo that OSHA issued did not change the wording of the regulation; it just affected how effectively OSHA inspectors would be able to enforce the language.

Incentive Programs

Workers described common employer incentive programs where an employer would offer some kind of prize to a group of workers that would then be withdrawn if a worker reported an injury. As the preamble described:

An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety. The USW provided many examples of employer incentive policies that could discourage reporting of work-related injuries and illnesses.  One employer had a policy that involved periodic prize drawings for items such as a large-screen television; workers who reported an OSHA-recordable injury were excluded from the drawing.

The American College of Occupational and Environmental Medicine noted that many of its member physicians reported knowledge of situations where employers discouraged injury and illness reporting through incentive programs predicated on workers remaining “injury free,” leading to peer pressure on employees not to report.

A 2012 GAO study found that rate-based incentive programs, which reward workers for achieving low rates of reported injury and illnesses, may discourage reporting.

Incentive programs are based on the “blame the worker” theory of accident prevention. That theory states that if only workers would be more careful, there wouldn’t be as many injuries. And offering workers a prize will encourage them to be more careful. Actually, most workplace incidents are caused by unsafe conditions — machines without guards, slippery floors, lack of fall protection, etc. — not worker carelessness.

Giving out prizes or bonuses doesn’t prevent injuries – it discourages injured workers from reporting their injuries.  Workers don’t need bonuses to work safely, they need safe workplaces.”   — Dr. David Michaels, former OSHA Assistant Secretary

As former OSHA director David Michaels explained, “No one avoids getting hurt simply to get a prize at the end of the week or a bonus at the end of the year. Giving out prizes or bonuses doesn’t prevent injuries – it discourages injured workers from reporting their injuries.  Workers don’t need bonuses to work safely, they need safe workplaces.”

The OSHA regulation didn’t prohibit all incentive programs. Those incentive programs that reward workers, for example, for activities “such as identifying hazards or participating in investigations of injuries, incidents, or “near misses” were perfectly acceptable. Only incentive programs based on injury or illnesses rates were prohibited if they led to underreporting of injuries or illnesses.

OSHA Deputy Assistant Secretary Dorothy Dougherty issued a memo in 2016 laying out for OSHA inspectors how this language was to be enforced.  The memo stated that the anti-retaliation language:

prohibits taking adverse action against employees simply because they report work-related injuries or illness. Withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness would likely violate section 1904.35(b)(1)(iv) regardless of whether such an adverse action is taken pursuant to an incentive program. Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee.

Consider the example of an employer promise to raffle off a $500 gift card at the end of each month in which no employee sustains an injury that requires the employee to miss work. If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.

Return to Blaming the Worker

The new memo, issued last week under the signature of Kim Stille, Acting Director of Enforcement Programs, stated instead that “Rate-based incentive programs are also permissible under § 1904.35(b)(1)(iv) as long as they are not implemented in a manner that discourages reporting.” [emphasis added]

How would an employer ensure that precautions are taken to ensure that employees feel free to report an injury or illness, even if the incentive program results in withholding a prize or bonus because of a reported injury? According to the OSHA memo:

An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates. For example, any inadvertent deterrent effect of a rate-based incentive program on employee reporting would likely be counterbalanced if the employer also implements elements such as:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees to reinforce reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy;
  • a mechanism for accurately evaluating employees’ willingness to report injuries and illnesses.

So how is that going to work exactly?

A worker suffers a serious cut on his hand while working on an unguarded machine the day before the lottery for a new riding mower ends.  Fearing that his co-workers will hate him for causing them to lose a chance for the prize, he sticks his bloody hand in his pocket and heads to the local urgent care to have it sewed up, telling them that he did it while working on his car.

Even if OSHA finds out that the incentive program caused the worker to hide the injury, the employer is now home free if there was also a program that rewarded workers for attending safety meetings that identify unsafe conditions in the workplace.

Or they’re safe if the employer conducted a training program that emphasized that they really, really, really wanted employees to report injuries, and they would never in a million years consider retaliating against them (Oh, and if you and your buddies lose the chance at winning the riding mower because you cut your hand, well that’s a shame. Better be more careful next time.)

 

Drug Testing

When developing the regulation, OSHA also compiled evidence that drug testing had been used by employers to discourage injury and illnesses reporting. For example, drug tests were sometime ordered for injuries that couldn’t have been caused by intoxication, such as musculoskeletal injuries that are “often caused by physical workload, work intensification, and ergonomic problems.” The preamble to the regulation therefore referenced as impermissible drug tests administered “irrespective of any potential role of drug intoxication in the incident” and used to deter proper reporting.

OSHA’s original 2016 memo instructed inspectors very clearly that the regulation does not “prohibit drug testing conducted under a state workers’ compensation law or other state or federal law” nor does it prohibit employers from drug testing employees who report work-related injuries or illnesses “so long as they have an objectively reasonable basis for testing.”

The regulation “only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.”

And the 2016 policy put a heavy burden of proof on the agency, stating that “OSHA’s ultimate burden is to prove that the employer took the adverse action because the employee reported a work-related injury or illness, not for a legitimate business reason.”

In addition, the drug testing had to measure actual impairment, which meant that OSHA would only permit tests for alcohol use, which is the only drug test that can actually measure impairment.

Furthermore:

Drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.

Employers objected to OSHA’s “intrusion” into their right to drug test employees any time, for any reason. After all, they argued, they should be able to do anything to achieve a drug-free workplace — whether or not employees were using drugs at work or impaired at work, and whether or not the drug testing caused workers to hide their injuries.  And some erroneously warned that the anti-retaliation language would conflict with other laws that mandated or allowed drug testing in certain situations.

The new policy leaves this policy mostly unchanged on paper — allowing drug testing in the same situations it was allowed before — where required by other laws and permitting it when used “to evaluate the root cause of a workplace incident that harmed or could have harmed employees” as long as all involved employees are tested, and not just those who were injured.

But actual enforcement of the language for retaliatory drug testing will inevitably be weakened because the new memo removes language prohibiting drug testing for obviously unrelated injuries or illnesses like musculoskeletal injuries, and removes language prohibiting post-injury drug test except for alcohol.

And the burden of proof for inspectors will now be even higher. Instead of showing that the employer required drug testing just “because the employee reported a work-related injury or illness,” the new burden of proof is to show that “the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

So is an employer home free if they swear that the drug testing was not intended to penalize anyone, but just to “promote safety and health,” (even if it had the effect of discouraging employees from reporting?)  We shall see.

Will this memo be enough to satisfy employers who don’t like the anti-retaliation language? Unlikely. In response to OSHA’s recent proposal to roll back on section of the recordkeeping rule, several employers submitted testimony calling for repeal of the entire regulation — including the anti-retaliation language.

These are Trump Times, after all. It’s the least they can expect.

This blog was originally published at Confined Space on October 12, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

FY 2019 OSHA Budget Is Here: Good News, But More Work to be Done

Friday, September 28th, 2018

For the first time practically in recorded memory, the Labor-HHS-Education budget, which includes OSHA, MSHA and NIOSH, was passed and signed into law before the beginning of the new Fiscal Year — October 1st.  The final OSHA budget actually contains a $5 million increase over FY 2018 and $8.8 million over the President’s FY 2019 Request. We can thank the Senate for that, considering the final budget is a whopping $12.5 million over what the House wanted.

Highlights include:

  • The total OSHA budget is $557.8 million, a $5 million increase over FY 2018
    • $1 million increase for federal enforcement,
    • $1.5 million increase for state plans
    • $2.5 million increase for federal compliance assistance ($3.5 million will be spent on the Voluntary Protection Programs)
    • Susan Harwood Worker Training Grant program continues to be funded at $10 million — despite the Trump administration’s continuing efforts to kill it.
    • There are no “poison pill” riders — attempts to kill silica enforcement or OSHA’s electronic recordkeeping standard.
  • The MSHA budget is level funded.
  • NIOSH will receive  $336.3 million (a $1 million increase over FY 2018).
    • Trump’s proposal to transfer NIOSH to the National Institutes of Health and slash the NIOSH budget was rejected. Funding for the Educational Resource Centers, Agriculture, Forestry and Fishing Research Centers and other NIOSH programs was maintained.
  • A few other Labor Department programs — Wage and Hour Division, Bureau of Labor Standards and the Office of Labor Management Standards — also got small increases although funding for employment services was cut.

A Word of Warning

But don’t get too happy. While these small increases (or level funding) are good news considering who’s in the White House and in control of Congress, funding for virtually all of the labor programs has been basically frozen for years. The total OSHA budget, and some line items like State Plan funding, are still lower than they were in 2012, as you can see in the table below.  And while the budget hasn’t shown much change, the  costs of operating these programs have increased, resulting in declining staffing levels and program activity.

As AFL-CIO Safety and Health Director Peg Seminario summarizes, “we have a victory holding the line, but much more work to be done.”

This blog was originally published at Confined Space on October 3, 2018. Reprinted with permission. 

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Scott Mugno: Rising from the Dead?

Wednesday, September 26th, 2018

While Rod Rosenstein and Brett Kavanaugh may be on their way out, OSHA nominee Scott Mugno and other Department of Labor nominees may be on their way in according to intrepid Bloomberg reporter Chris Opfer.

You may recall that business interests, who hate, hate, hate the idea of Democrat Mark Pearce getting another term on the National Labor Relations Board had reportedly quashed a potential compromise that would have re-appointed Pearce in return for the Dems allowing the confirmation of Mugno, Cheryl Stanton at Wage & Hour and William Beach for the Bureau of Labor Statistics.  But now that deal seems to be back on the table at the White House as the Senate Finance Committee plans to consider Gordon Hartogensis’ nomination to run the Pension Benefit Guaranty Corporation  on Thursday. There may even be some judicial nominations in the pot.

Not that business interests — especially the Chamber of Commerce — would be too disappointed. Mugno is, after all, their guy.

According to Opfer

If the deal comes to fruition, it will likely be within the coming weeks. Lawmakers are expected to flee Washington in early October for one last campaign push before the midterm elections. There’s no telling whether any agreement would still be on the table after the smoke clears from the ballot box. Look for the Senate to potentially use unanimous consent to speed the nominations to the floor and confirm Pearce and others by voice vote shortly before they head home to campaign.

No word as to whether Mugno is still looking forward to trading his leisurely retired life in Florida for a cold, slushy winter in Washington DC — to be followed by the prospects of all oversight all the time if/when the Dems take back the House (and possibly the Senate) in November.

This blog was originally published at Confined Space on September 24, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

Kavanaugh Still Doesn’t Get It

Thursday, September 13th, 2018

Good news!

Supreme Court nominee Brett Kavanaugh does not think it is unreasonable for workers to expect to come home safely at the end of the day, even if they work in the entertainment industry.

So he claims in his response to a written question from the Senate Judiciary Committee.

Unfortunately, “expecting” isn’t doing. And Kavanaugh, in his dissent from the SeaWorld case, in his testimony before Congress, and now in his written responses, seeks to take away the the ability of workers to make that expectation a reality.

Now, I’m not an attorney, but I do get to play one in this blog — and, at least when it comes to occupational safety law — I seem to have a better understanding of occupational safety and health law than a certain person who may take a lifetime seat on the Supreme Court of the United States before the autumn leaves start falling. And that’s disconcerting.

Background

For those just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified spectators, including small children.

OSHA, which had proven that SeaWorld was aware that the whale that killed Brancheau, had been involved in previous trainer fatalities, and that killer whales in general were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHA’s favor.

Kavanaugh dissented from the majority opinion, arguing in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress — and only Congress — could give OSHA that authority.

And during last week’s Senate confirmation hearing, Kavanaugh doubled down on some of the arguments in his dissent while lying about other parts.

The tort system is not an alternative to OSHA protections

Kavanaugh focuses his responses to the Committee’s questions on two shaky assertions that I addressed in my previous post on his responses to Senator Diane Feinstein’s (D-CA) questions at last week’s confirmation hearing: use of the tort system and asserting that close contact in whale training is just as “intrinsic” to whale shows as tackling is to football or fast driving is to auto races.

Kavanaugh continues to insist that even if OSHA can’t act, workers can still use the tort system and file lawsuits to ensure safe workplaces. In fact, his reliance on tort law as a remedy for worker safety problems has become his preferred method of avoiding answering questions about some of the more outrageous statements he made in his SeaWorld dissent:

QUESTION: You also wrote [in your dissent]: “To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk— is among the greatest forms of personal achievement for many who take part in these activities.”

Do you believe that fearless, courageous, and tough people do not expect their employer to “furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.”? If not, please explain.

RESPONSE: State tort law helps ensure that workplaces are reasonably safe. Congress may also regulate workplace safety, as it has done. And federal agencies may also do so within the limits of the statutes and precedents.

When asked how state tort law and our civil justice system help promote workplace safety, Kavanaugh responded:

In general, state tort law and our civil justice system can provide an opportunity for people who are harmed by the actions or negligence of others to recover damages. The tort system thereby helps deter negligent actions and encourages or requires reasonable safety measures. Of course, state tort law is often augmented by state or federal regulation. It was the scope of federal regulation that was at issue in the SeaWorld case.

Well, actually, no.  Kavanaugh has it exactly backwards. Tort law — the ability to file a lawsuit — is not a replacement for the Occupation Safety and Health Act.  One fact that Kavanaugh continues to ignore is that workers cannot sue their employers if they are hurt on the job.

A little history.  Prior to workers compensation, workers could sue employers after they got hurt on the job. Employers obviously had the upper hand with far more resources than individual workers. And their arguments — that workers got hurt because they were careless, or that workers had assumed the risk (and liability) when they took the dangerous work — often prevailed with juries.

On the other hand, employer sometimes lost — and lost big. Juries were unpredictable.

State workers’ compensation systems were created in the early 20th century to establish a “no fault” system where employer-provided insurance would reimburse workers for lost wages while providing first-dollar medical coverage and rehabilitation for work-related injuries. In return, workers gave up the right to sue their employer for any injuries (or — theoretically — illnesses) occurring on the job.

The workers compensation premiums paid by employers were supposed to be connected to the rate of injuries in a company (or in an industry sector) and were therefore supposed to provide a incentive for employers to keep the workplace safe. For a variety of reasons, that incentive was never sufficient to protect employees — a problem that led to passage of the Occupational Safety and Health Act (OSHAct) in 1970 which requires employers to provide a safe workplace — to prevent workers from getting hurt or killed on the job.

So what the hell is he talking about?

We’ve all heard of workers winning lawsuits that are large enough to change or destroy an industry. The most famous is probably the lawsuits against the asbestos industry following the deaths of hundreds of thousands of workers from asbestos-related disease over the past century.  Another example is diacetyl, a popcorn flavoring that destroyed workers’ lungs. Most use of diacetyl were discontinued after disabled workers or their families won massive lawsuits.

But it’s important to remember that those workers did not sue their employers, because suing your employer is prohibited by comp laws.  They sued a “third party,” the manufacturers of the asbestos or diacetyl — companies like Johns Manville.

You can certainly make the argument that lawsuits against companies that made asbestos or diacetyl ultimately contributed to making the workplace safer for employees who came after those killed or disabled.  But Kavanaugh is trying to make this extremely small tail wag a very large dog.

How is that?

First, legal victories in these lawsuits came long after workers suffered and died horrible and preventable deaths. And tens of thousands continue to die each year from asbestos-related disease, despite the successful lawsuits.

Second, the number of successful lawsuits brought by workers against the manufacturers of hazardous chemicals is tiny compared with the thousands of hazardous chemicals in use today.

Finally,  third party lawsuits are pretty much impossible to use in workplace safety incidents — like SeaWorld. What third party does a worker sue when the employer refuses to provide fall protection equipment, or when an employer forces a worker to go down into a deep, unprotected trench?

Clearly there was no third party for Dawn Brancheau’s survivors to sue after a killer whale dismembered and drowned her. (And third-party lawsuits against God — the whale’s creator — are rarely successful.)

Why doesn’t Brett Kavanaugh — or the staff that actually wrote these answers, or the clerks that work for him  — know all of these things?

No clue. Either they’re uninformed, or they hope the Senators (and the American public) are uninformed. Either way, it’s inexcusable.

Getting eaten by a whale is not the same as racing a car

The second thing Kavanaugh insisted on over and over again in his written responses was the erroneous argument that close contact between trainers and whale was “intrinsic” or essential to whale shows.

When asked to explain how close contact between whale and trainer was intrinsic to the killer whale shows at SeaWorld  — especially when SeaWorld had itself imposed the safety measures that OSHA was requiring — Kavanaugh simply repeated what he argued in his dissent, namely that “[t]he Department [of Labor] cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL or speeding in NASCAR.” 

Well, no. Wrong.

First, as I already explained earlier this week, killer whale shows are not sports.

Whale trainers are not athletes; they’re workers in the entertainment industry. There is no fight between whale and human (or there shouldn’t be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.

And second, close contact between whales and trainers is not ‘intrinsic” to whale shows and are not comparable to car racing or football. Obviously you can’t have a car race if cars can’t speed.  Football would arguably not be the same if you couldn’t tackle. But, as SeaWorld continues to prove every day, you can have successful, entertaining killer whale shows even without close contact between whale and trainer.

Finally, just because a hazard may be inherent to a job, doesn’t mean that OSHA can’t require feasible safety measures to prevent workers from getting hurt.  You can’t work on top of a tall building without the danger of working at a dangerous height, but you can protect those workers from falling without killing the construction industry. You can’t process chickens without cutting and hanging, but there are ways to prevent poultry processing workers from getting disabling musculoskeletal disorders while still allowing people to enjoy their wings and nuggets. You can’t have killer whale shows that don’t star a 12,000 pound wild animal with large teeth, but you can protect trainers from the hazard while spectators still enjoy the show. That’s why the OSHAct was passed in 1970.

A Comic Interlude

Now never fear, there is one bright spot to this whole sordid tale. If you think that spending your life incorrectly analyzing the law and taking away workers’ rights must be a dreary job, I learned that you can at least entertain yourself and others by occasionally saying phrases like “ipse dixit”  —  a Latin legal term meaning “an assertion made but not proved.”

Kavanaugh argues in his written comments that despite OSHA’s insistence that it would never ban tackling in football, 

that ipse dixit just brings us back to square one: Why isn’t close contact between trainers and whales as intrinsic to SeaWorld’s aquatic entertainment enterprise as tackling is to football or speeding is to auto racing?

Admit it. It’s not possible to say “ipse dixit” without smiling, just a little.

Conclusion: Kavanaugh is a human time machine

Kavanaugh’s responses to his written questions, ipse dixit, just bring us back to our original question: Why is someone who doesn’t understand occupational safety and health law, and who is hostile to worker safety being considered for the Supreme Court?

This blog was originally published at Confined Space on September 14, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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