Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘occupational safety’

Workplace Deaths Are Rising. Trump-Era Budget Cuts Could Make It Worse.

Monday, June 18th, 2018

In an alarming development in the world of workplace safety, the latest statistics reveal that the number of accidental deaths on the job in America is on the rise, reversing the longer-term trend toward fewer fatal incidents.

The number of deaths hit a total of 5,190 in 2016, up from 4,836 in 2015, according to an April 2018 report by the AFL-CIO. That’s about 14 deaths each day from preventable worker accidents. It’s also the third year in a row that the number has inched up, and the highest death rate since 2010, the labor federation reported.

Workplace safety systems are “definitely in the failure mode,” says Peter Dooley, a consultant with the National Council for Occupational Safety and Health who was worked closely with labor unions over the years. “In the last two years it is getting dramatically worse. It’s just outrageous.” 

The precise reasons for the rise are not simply stated, adds Peg Seminario, AFL-CIO’s long-time director of occupational safety and health. Overall patterns such as very high rates of injury in the logging and construction industries are consistent over time, she says, and there is no single employment trend that accounts for the recent rise. “The numbers are actually down in construction, but they are up almost everywhere else,” she says.

Inadequate enforcement of existing safety rules is the most commonly cited explanation for the rise, Seminario tells In These Times. A Jan. 8 report from NBC News estimates that the Labor Department’s Occupational Safety and Health Administration (OSHA) employs only about 1,000 inspectors to cover all workplaces in America—and that the number of inspectors has declined four percent since President Donald Trump took office. The number of inspectors is far too low to be effective, Seminario suggests, and OSHA has been “under resourced” for years, including during the Obama administration years.

“Construction is a good example. OSHA has a big focus on construction and construction deaths are down. The areas where OSHA has less interest are up,” she says

The figures cited by Seminario and Dooley are taken from the Census of Fatal Occupational Injuries published annually by the Bureau of Labor Statistics. The way the figures are compiled is a problem in itself, Dooley says, because it zealously protects the anonymity of employers. That diverts attention from specific workplace behavior that needs close examination and corrective action to reduce accidental deaths over time, he says. 

The National Council’s answer to this problem is to publish its own “Dirty Dozen” list of employers notable for health and safety problems among their workforces. The Council uses a standard of measurement that includes non-fatal injuries and other factors, but the list stands out in that it names some very well-known companies. For example, the online retailer Amazon is on the list because it has seen seven of its warehouse workers killed since 2013. Lowe’s Home Improvement operations have seen a total of 56 deaths associated with paint stripping chemicals. And the largest garbage disposal company in the United States, Waste Management, has had an excessive number of OSHA citations and fines. Other companies on the list are Tesla Motors and Dine Brands Global (owner of IHOP and Applebee’s restaurants).

“There is injustice in the Bureau of Labor Statistics as a totally anonymous database. There is no public record of who is dying and who the employers are,” Dooley says. The information actually does exist deep in the Labor Department files, he adds, but government policy is to keep this information out of public hands, or for use by safety experts. “This needs to be changed,” he says.

Seminario and Dooley agree that the worker safety signals coming from the Trump administration are troubling, even if the statistics are not up-to-date enough to make a direct link to increased workplace deaths. Trump’s budget proposal last year called for a 21 percent cut in Department of Labor spending, and the initial proposal for this year call for a 9 percent cut. Congress pared back last year’s proposed cut, and is expected to do so again this year, but it is clear that current Labor Department officials have no plans to take the initiative against the rise in workplace deaths, Dooley charges.

In issuing its report, the AFL-CIO noted: “The Trump administration has moved to weaken recently issued rules on beryllium and mine examinations and has delayed or abandoned the development of new protections, including regulations on workplace violence, infectious diseases, silica in mining and combustible dust.”

“At the same time, Congress is pushing forward with numerous ‘regulatory reform’ bills that would require review and culling of existing rules, make costs the primary consideration in adopting regulations, and making it virtually impossible to issue new protections.”

The reference to workplace violence represents one of the most troubling statistics buried in the government reports. According to a press release from the Bureau of Labor Statistics, “Workplace homicides increased by 83 cases to 500 in 2016, and workplace suicides increased by 62 to 291. This is the highest homicide figure since 2010 and the most suicides since the National Census of Fatal Occupational Injuries began reporting data in 1992.”

“It’s a very complicated problem,” observes Seminario. “You can devise safety regulations to avoid common and predictable accidents. But how do you do that with a homicide?”

This article was originally published at In These Times on June 18, 2018. Reprinted with permission. 

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

Kicking them while they’re down: Bill to treat former substance abusers as independent contractors is wrong

Monday, March 30th, 2015

sami-khadderA new effort is underway to deprive a certain class of workers of the most basic benefits and protections of employment.

Last month, Assembly member Marie Waldron (R-San Diego) introduced AB 500, which would allow employers to hire workers who have successfully completed a drug rehabilitation program following conviction of a non-violent felony as independent contractors rather than employees for a period of two years.

The targets of this bill are workers for whom steady and fair employment is a means to rebuild a life and to prevent a relapse of the ravages of addiction. AB 500 is a cynical bill that would codify discrimination and perpetuate mistreatment of this already vulnerable group.

For starters, the language of the bill violates existing federal anti-discrimination law. The Americans with Disabilities Act  considers those who have received treatment for drug or alcohol abuse as qualified individuals with a disability who are entitled to reasonable accommodation. Contrary to the express purpose of the ADA, AB 500 stigmatizes individuals who have completed a substance abuse rehabilitation program by denying them, for a period of two years, the legal protections normally offered to employees in California. Stigmatizing people with disabilities is what gave rise to the disability rights movement to begin with.

Codifying second class status for workers with a substance abuse history is bad enough, but the effect of the bill is even more insidious. Under California law, a person who provides services for another person or entity is presumed to be an employee of that person or entity – as opposed to an independent contractor. The distinction is meaningful.Independent contractors are not entitled to the protections of the California Labor Code, which means they have no minimum wage or overtime protections and no entitlement to meal and rest breaks. Independent contractors are also exempted from the laws prohibiting discrimination or retaliation in the workplace, and they are not entitled to unemployment insurance or Social Security contributions. The bill would also allow employers to avoid the cost of carrying workers’ compensation insurance, leaving independent contractors unprotected in the event of a workplace injury.

Employers often complain that the cost of providing these benefits to their workers has grown too high and some may look with favor at the proposed economic windfall — being able to hire rehabilitated drug offenders for two years for less than the minimum wage, without having to provide overtime pay, workers’ compensation insurance or protections from unlawful discrimination.  But these benefits are essential to providing a fair and safe work environment for California workers. Without these protections, the State would invariably end up shouldering much of the costs, while the employers would reap all the benefits.

Some advocates of the bill may believe that the bill encourages employers to give people with a history of substance abuse an opportunity to work their way into full employment status.  But AB 500 would require applicants to disclose to potential employers that they have been convicted of a crime. Such disclosure is currently prohibited under certain circumstances.  More importantly, there is ample evidence that qualified applicants who disclose their criminal history are just as likely to be denied employment altogether, a result directly contrary to the intended result.

Others may take a harder line toward former substance abusers, believing that second class status in the workplace is appropriate because substance abusers should suffer the consequences of their poor decisions. But how does stripping anti-discrimination protections, overtime, and workers’ compensation achieve any policy goal related to rehabilitation or substance abuse prevention?

What is undeniable is that AB 500 targets a vulnerable constituency. And if the move to strip their rights is successful, it could embolden employers to seek further erosions of the benefits and protections of employees. Who would be next?  The long-term unemployed, veterans, the homeless? For those already struggling to become productive members of society, our goal should be to eliminate obstacles, not create them.

This article originally appeared in Celavoice.org on March 30, 2015. Reprinted with permission. 

About the Author: Sami N. Khadder is the founder of the Khadder Law Firm. He has a decade of litigation experience, with the majority of his career dedicated to fighting for the rights of employees and individuals. Mr. Khadder began his career as an intellectual property defense attorney, but soon realized that the pursuit of justice on behalf of those who need it most was a far more gratifying use of his legal education and experience. Mr. Khadder looks forward to continuing the fight for justice.

Will the “real” employer please stand up? The consequences of the global shift to subcontracting, franchising, and outsourcing (Part I)

Tuesday, March 24th, 2015

IMG_0156a1_2-2A fundamental change has taken place in the American workplace, and we are only now beginning to realize just how monumental it is.

A new book, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done About It, by David Weil, makes the case that in every corner of the employment world, companies are increasingly shedding their employees, while maintaining control over the ultimate product or services to be provided under the “lead” company’s logo and brand. Beginning with peripheral services such as janitorial and security, and gradually including ever more central services, such as receptionists, truckers, and even lawyers, large employers are deliberately subcontracting out their work.

Here’s how it works: A member of a loading dock crew is paid by one company, which is in turn compensated by another company, for the number of trucks loaded. That company, Schneider Logistics, manages distribution centers for Wal-Mart. Wal-Mart sets the price, time requirements, and performance standards that are followed by Schneider, which in turn uses those standards to structure its contracts with its subcontractors.

Why do they do it? Employers can reduce costs by pushing many of the responsibilities connected to being the employer of record down the chain to someone else. Yet by controlling the quality and price of their goods and services, they do not lose their reputations and the goodwill of their brands.

But should lead companies be allowed to have it both ways? Should they be permitted to control the production, delivery, and cost of goods and services, without sustaining any liability for the manner in which their contractors provide them? To take a real world example, if a company like Wal-Mart sets a price that is so low that the only way for suppliers to meet it is by underpaying their employees, isn’t that really Wal-Mart’s responsibility?

This new “fissuring” model has drastic consequences for employees who have been forced to trade in traditional jobs at a lead company, with benefits and a pension plan, for part-time temporary positions with no benefits. Pushing responsibilities down the chain often means that the direct employer is less well capitalized and less capable of maintaining wage and hour standards, or enforcing health and safety rules. Since the company on top sets the price, often as low as the market will possibly bear, the company on the bottom is forced to cut to the bone. Many of the subcontractors are small businesses that go under, and then reemerge as a different company, which results in there being no responsible party  to foot the bill when legitimate claims are made.

Fissuring also negatively affects the health and safety of   the broader public. Weil argues that a significant contributing factor of the devastating environmental oil spill caused by the BP Deepwater Horizon accident in 2009 was the extent of BP’s use of contractors. In order to shield itself from liability by maintaining less control over its subcontractors, BP did not sufficiently oversee the safety component of the operation. Other authors have similarly noted the increase of injuries and fatalities that have accompanied the rise of contracting in, for example, coal mining, construction, and trucking, among others.

To be sure, there are some who benefit from the practice. The third consequence of “fissuring” is to shift the surplus generated by businesses away from the workforce and to investors. This helps to explain why the operative trend in the American workforce is the widening income gap between the rich and the working poor. The gap between the wealthy and the poor is at a hundred year high.  For example, in 1965, the average CEO made about 20 times what the average worker made at any given company. By 2013, the ratio had grown to approximately 331 to 1. What’s fascinating is that a recent study found that not only did people worldwide grossly underestimate the ratio of CEO to worker pay, but that people across all backgrounds preferred a smaller pay gap.

Weil, who was appointed the Administrator of the Wage and Hour Division of the United States Department of Labor in May 2014, argues that since “[t]he modern employment relationship bears little resemblance to that assumed in our core workplace regulations,” laws and judicial decisions need to adapt current rules about workplaces to the realities of the modern world.

In every corner of the American workforce, the pressures to cut costs and improve the investor’s return have resulted in a worsened standard for the middle-class worker, as well as a worsened standard of health and safety. What can be done about it? Stay tuned for my next post.

“Total Worker Health” vs. “Wellness” vs. “Well-Being”: Framing Worker Health Issues

Tuesday, June 11th, 2013

davidyamadaLast month’s “Work, Stress and Health” conference in Los Angeles featured the theme of “Total Worker Health.” This important biennial event is co-sponsored by the American Psychological Association (APA), National Institute for Occupational Safety and Health (NIOSH), and Society for Occupational Health Psychology (SOHP). On its webpage, NIOSH defines Total Worker Health this way:

Total Worker Health™ is a strategy integrating occupational safety and health protection with health promotion to prevent worker injury and illness and to advance health and well-being.

As conceptualized by NIOSH and others, Total Worker Health engages both legal mandates and pro-active measures to promote worker health and safety.

Wellness

Another term often invoked at this conference was “wellness,” usually in association with employer-sponsored programs that promote smart health habits, such as good nutrition, exercise, weight control, smoking cessation, and mindfulness practices.

Wellness programs are designed to contribute to healthier and more productive workforces and to save organizations money in the through lower health insurance premiums and less absenteeism and turnover.

Well-being

A third term that recurred at Work, Stress and Health was “well-being.” The federalCenters for Disease Control and Prevention (CDC) examine well-being in the context of a concept they label “Health-Related Quality of Life.” They define well-being this way:

Well-being is a positive outcome that is meaningful for people and for many sectors of society, because it tells us that people perceive that their lives are going well. Good living conditions (e.g., housing, employment) are fundamental to well-being. Tracking these conditions is important for public policy. However, many indicators that measure living conditions fail to measure what people think and feel about their lives, such as the quality of their relationships, their positive emotions and resilience, the realization of their potential, or their overall satisfaction with life — i.e., their “well-being.” . . . Well-being generally includes global judgments of life satisfaction and feelings ranging from depression to joy. 

More than word salad

Okay, so you might be thinking, “Total Worker Health” . . . “Wellness” . . . “Well-Being” . . . blah blah blah. Just a toss of word salad among terms that you basically can mix and match.

Maybe so, at least from a distance. But these terms do carry subtle distinctions and connotations within the world of employment relations, especially in the fields of occupational safety & health and organizational psychology.

In a Good Company blog post, Dr. Matt Grawitch (St. Louis U.), an organizational psychologist who plays a key role in the APA’s Psychologically Healthy Workplace Program, reflected upon how these terms were invoked at the conference and cast his vote for well-being as the best framing concept:

For organizations, this means you have to have a strategy, one emphasizing the development of a workplace that fosters (or at least does not detract from) overall worker well-being. It should not start with the implementation of a wellness program; it should start by taking a long hard look at the culture, structure and business practices of the organization to identify where those important contextual factors are enhancing or detracting from worker well-being. It should include an assessment of a range of well-being factors (including health). And it should result in a multi-faceted approach that leverages a host of psychologically healthy workplace practices to effectively improve worker well-being.

Exercise can be a good way to relieve stress that we experience from an abusive supervisor, work-life conflict or poor working conditions. But wouldn’t the organization and its employees reap greater rewards if abusive supervision, work-life conflict and poor working conditions were eliminated? Then, exercise could be used to enhance health rather than to simply maintain it (or keep it from deteriorating even more).

I’m happy to cast a concurring vote. I confess that I had not given this any attention before. But at the conference, my thought process was first triggered by a sidebar conversation with Dr. Tapas Ray of NIOSH, who shared with me how his research is centering on measures of well-being. By the end of the conference, further informed by other discussions and panels, I had became a convert. Indeed, I realized that well-being, within the context of workplace health and safety, is a very good fit with broader questions about human dignity and employment law that I’ve been raising for several years.

I’m sure that I’ll be exploring these conceptual links in future posts.

This article was originally printed on Minding the Workplace on June 10, 2013.  Reprinted with permission.

About the Author: David Yamada is a tenured Professor of Law and Director of the New Workplace Institute at Suffolk University Law School in Boston.  He is an internationally recognized authority on the legal aspects of workplace bullying, and he is author of model anti-bullying legislation — dubbed the Healthy Workplace Bill — that has become the template for law reform efforts across the country.  In addition to teaching at Suffolk, he holds numerous leadership positions in non-profit and policy advocacy organizations.

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