Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘OSHA’

This New Rule Will Make Information About On-the-Job Injuries at Dangerous Workplaces Public

Wednesday, May 18th, 2016

elizabeth grossmanMore than 3 million U.S. workers suffer a workplace injury or illness every year, according to the Bureau of Labor Statistics—numbers that are thought to be significantly underreported. But astonishingly, little or no information about at which workplaces these occur is made available to the Occupational Safety and Health Administration (OSHA), the agency responsible for enforcing U.S. workplace safety. Neither is this information made public.

But under a new rule OSHA has just announced, employers in “high-hazard” industries will have to send this information directly to OSHA for posting on the agencies website. The rule also includes provisions to protect workers who report job-related injuries and illnesses from employer retaliation.

“Most people don’t realize that many employers don’t send this information to OSHA,” explained David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, on a call with reporters. “Just as public disclosure of their kitchens’ sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses,” said Michaels. “High injury rates are a sign of poor management.”

The new rule will also “help workers choose safer workplaces,” Michaels explained. “If you are looking for a new job, would you want to work at an establishment where you have a high likelihood of being injured?”

“More attention to safety will save life and limbs,” he added.

The rule, which has been several years in the making, was greeted with enthusiasm by labor advocates. “The new OSHA recordkeeping rule,” said National Council for Occupational Safety and Health (National COSH) acting executive Director Jessica Martinez in a statement, “is an important step towards transparency. By requiring electronic submissions every quarter and making the data public, this common-sense regulation will help us learn more about how workers are hurt and become sick on the job.”

In his statement, AFL-CIO president Richard Trumka said, “We are pleased that the new rules also include important protections to ensure that workers can report injuries without fear of retaliation. For far too long, in an effort to keep reported injury rates low, employers have retaliated against workers for reporting injuries, disciplining them for every injury or creating barriers to reporting.”

The U.S. Chamber of Commerce, however, called the rule “misguided,” saying “the agency’s excessive reporting requirements will lead to employers being falsely branded as unsafe and will not reflect a company’s commitment to maintaining a safe workplace.” The new requirements, said the National Association of Manufacturers, “could lead to public shaming.” Both business groups said the rule would create burdens for employers and expressed concern that it would lead to the release of proprietary information.

What does the rule require?

In fact the new rule does not require employers to collect additional information. Rather, it requires employers—only in what OSHA considers the most dangerous industries – to send OSHA information they’re already required to collect. These industries include agriculture, construction, forestry, hospitals, manufacturing that includes oil, gas and chemical plants as well as and food processing, and trucking.

“It does not add to or change employers’ obligations,” said Michaels.

As for the concern about the release of confidential data, Michaels explained that “before OSHA posts any information, it will remove any personal information.”

The rule, which becomes effective on August 10, will be phased in over the next two years with its first reporting due to OSHA in July 2017. Reporting requirements vary slightly depending on workplace size, but the rule will apply to all employers, except for those with less than twenty employees.

Having workplace injury and illness information reported directly to OSHA will help the agency “improve safety without additional inspections,” said Michaels. This data will help OSHA better “target” its limited enforcement resources, he explained.

Currently, OSHA has about 2,200 inspectors—some of these through state agencies—that are responsible for some 130 million workers at more than 8 million workplaces across the country. That means that there’s about one OSHA inspector for every 60,000 workers. The information OSHA gets about workplace injuries and illnesses under the new rule will help point OSHA toward where workers are most at risk.

For example, “We looked at the variation in injury rates in the same industry [but] in different establishments in the same city and found huge variations,” Michaels explained on a call with In These Times. In one North Carolina city, OSHA found that workers at one nursing home had a 1 in 45 chance of injury but a 1 in 9 chance of being injured at another, he explained. “We’re really trying to stress that workers have a right to know this. We think publication of this record will make employers work hard to improve,” said Michaels.

Protection against retaliation

While workers already have the right to report job-related injuries and illnesses, they are often discouraged from doing so—particularly at workplaces without union or other such representation. Under the new rule, retaliating against a worker for reporting a workplace injury or illness would be a violation of OSHA’s recordkeeping requirements, eliminating some potential complications for workers and for OSHA in responding to retaliation.

“We have workers who reported an injury and then were fired. This happens a lot,” explained Massachusetts Coalition for Safety and Health (MassCOSH) executive director Marcy Goldstein-Gelb. There’s also the issue of workers who fear for their immigration status if they take full advantage of their rights and speak out about injuries, she added.

Retaliation can also take the form of blaming the worker for the injury, United Steelworkers director of health, safety and environment Mike Wright explained. Michaels explained there were cases where injured workers were cited for “lack of situational awareness.”

Goldstein-Gelb and Wright both said the new rule would enable OSHA to take more protective action with fewer reporting complications for workers. Previously, retaliation cases could “only be handled as retaliation” cases, said Wright. “Now we can challenge this directly,” as a reporting violation, he said. In theory, the new rule should also make it easier for workers without union representation to report retaliation.

Retaliation against injury reporting “is widespread in the poultry industry,” says Oliver Gottfried, Oxfam America senior advocacy and collaborations advisor in a statement. “Poultry companies,” he explains, “use a variety of measures to deliberately avoid reporting injuries on their logs.” He welcomes the new rule but says it alone won’t “address the problem of widespread underreporting of injuries.”

Discouraging programs that discourage reporting

While the new rule doesn’t address such programs directly, OSHA says it should also help discourage are programs many employers have had that actively reward workers for not reporting job-related injuries and illnesses. According to examples provided by OSHA, these have included programs that put extra money in workers paychecks or given them gift cards and t-shirts for going certain number of days without reported injuries. One such program included drawings for flat-screen TVs. Another was described as “safety bingo” with monetary prizes.

Such programs have also been designed so that workers discourage each other from reporting injuries as the whole workplace loses out on rewards for injuries reported. Wright tells a story of a workplace where a worker was intimidated by co-workers who didn’t want to lose out on one of these programs so did not report slipping, falling and breaking his arm—only to have another co-worker later slip in the same place and suffer a head injury.

Eliminating fear of reporting and enabling OSHA to enforce non-reporting under this new rule could undercut such programs.

“The value of having this information is just enormous. Companies hate to have that dirty laundry aired,” says Wright. He explains that simply requiring companies to report adverse outcomes—as the U.S. Environmental Protection Agency did with polluters in the 1980s—has a big impact. “Just the fact that companies can’t hide this stuff,” could make an important different, he says. And Wright adds, as Supreme Court Justice Louis Brandeis said, “Sunshine is the best disinfectant.”

This blog originally appeared at Inthesetimes.com on May 17, 2016. Reprinted with permission. 

Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones, Ensia, Time, Civil Eats, The Guardian, The Washington Post, Salon and The Nation.

An Outrageous Number Of People Are Hurt And Killed At Work

Wednesday, April 27th, 2016

Bryce CovertOn Tuesday night, a psychiatric patient under Kay’s care told her she was going to beat her because Kay couldn’t give her any more phone call privileges.

Kay, a registered nurse who withheld her last name, had some good reason to believe the patient and fear for her own safety. Not too long ago, a different patient charged at her from 30 feet away, crushing her shoulder. The injury required months of physical therapy and she was in constant pain. She had to be removed from her normal job for a time. “My livelihood was robbed,” she said on a call with media on Wednesday morning.

Even today she still has flareups of pain, numbness, or burning in the injured shoulder. The incident also left mental scars. “I find I respond differently to stressful or perceived stressful situations,” she said. Her fight or flight instinct is more easily triggered, and she struggles with anxiety.

She’s not the only one in her workplace, either. One particular patient, weighing 285 pounds, has repeatedly assaulted both nurses and patients at the facility. Kay herself had to intervene in one incident where the patient grabbed a coworker’s head, hitting it against a window several times. There were just three other people around to restrain the patient. The incident left Kay’s coworker, a woman in her early 40s, with head and neck injuries, the loss of a tooth, and permanent hearing loss.

“People may assume that getting punched, kicked, or stepped on, or threatened and verbally abused, is part of working in a psychiatric facility,” Kay said. But “it’s unacceptable and preventable.”

It may be preventable, but the violence Kay experiences on a regular basis in her workplace is widespread — and getting worse. According to a report released Wednesday by the AFL-CIO, there were officially about 3.8 million work-related injuries and illnesses reported in 2014, although because underreporting is so widespread, the real number is likely somewhere between 7.6 and 11.4 million. That’s more than 10,000 people hurt or sickened at work every day.

And women like Kay and her coworker are on the front lines of the problem. The health care and social assistance industry made up the greatest share of nonfatal work injuries and illnesses, at more than 20 percent. Nursing and residential care facilities in particular have a high rate of 12.6 workers injured for every 100.

Violence generally is a growing workplace threat. It was responsible for 26,540 injuries that resulted in lost work time in 2014 across the country and across industries. “While the overall injury and illness rate in the U.S. has gone down over the last 25 years, the workplace violence rate was decreasing in the 90s and now it’s getting worse,” said Rebecca Reindel, the AFL-CIO’s senior safety and health specialist on the call with media. It’s increased more than 100 percent, for example, in private hospitals and psychiatric hospitals. And women are bearing the brunt, suffering two-thirds of these incidents.

Those findings line up with a recent report from the Government Accountability Office. It found that health care workers experience injuries from workplace violence at “substantially higher” rates than the rest of the workforce, ranging from five to 12 times the rate of the overall workforce depending on the type of facility. For example, nursing and residential care workers had a rate of 35.2 per 10,000 workers, compared to 2.8 for the workforce as a whole. Patients are the most common perpetrators, and workers most frequently report being hit, kicked, or beaten. The GAO also found that rates are getting worse, not better. But the full extent of the problem still isn’t known because health care workers are so unlikely to report incidents.

Perhaps even worse than injury and illness are the high rates of deaths on the job. In 2014, 4,821 workers were killed at work, an increase from the year before, the AFL-CIO reports. More troubling, the rate of death inched up, from 3.3 workers killed per 100,000 in 2013 to 3.4, showing that even if raw numbers went up because more people were at work, the share being killed is also increasing. On top of that, an estimated 50,000 people died from diseases they picked up from their jobs. That all works out to 150 workers dying every day from dangerous work conditions.

Violence is again a big problem when it comes to fatalities, accounting for 16 percent of all traumatic workplace deaths, or 765 total, in 2014. But other causes in industries beyond health care also had disturbingly high numbers. The highest was in transportation and material moving, with 1,346 deaths on the job in 2014, followed by 902 in construction and extraction. The oil and gas industry notched the highest number of fatalities it ever recorded at 144 and had a rate nearly five times the national average. And the leading cause of death at work is transportation incidents, particularly roadway crashes.

Beyond the cost of life and safety, the economic cost of injury and illness at work is also huge, estimated to be somewhere between $250 and $370 billion each year.

That cost could be alleviated by investing more in the agency meant to police workplaces to ensure workers’ safety. The Occupational Safety and Health Administration (OSHA), created in 1970, has saved more than 532,000 people since then, according to the AFL-CIO report. But it could be doing far more. There are just 1,840 inspectors tasked with monitoring the country’s 8 million workplaces under its jurisdiction, working out to one inspector for every 74,760 workers. That means a workplace will see a state OSHA inspector once every 97 years, on average, and a federal one just once every 145 years. Over the last quarter century, “the capacity of the government to oversee and enforce safety and health has gotten a lot worse,” said Peg Seminario, Director of Health and Safety at the AFL-CIO.

But even when OSHA does inspect and uncover dangerous conditions, the fines it levies are a drop in the bucket. The average penalty for a serious violation of safety regulations was $2,148 from the federal agency and $1,317 for a state one. Even killing a worker doesn’t cost much: The median penalty was $7,000 at the federal level and just $3,500 in states. “This clearly isn’t enough to deter,” Seminario said, “to cause employers to change their practices.”

Kay wants to see much more done to ensure her safety at work. “I love my job and I love the work that I do,” she said. “I want to continue to help patients who are suffering.” But to do that without fearing for her health, she thinks it’ll take increased security measures, better policies, more training for staff, and better reporting of incidents.

And she wants to see OSHA do something about it. There is no federal standard when it comes to workplace violence. “We need a standard,” she said.

This blog originally appeared at ThinkProgress.org on April 27,  2016. Reprinted with permission.

Bryce Covert Bryce Covert is the Economic Policy Editor for ThinkProgress. Her writing has appeared in the New York Times, The New York Daily News, New York Magazine, Slate, The New Republic, and others. She has appeared on ABC, CBS, MSNBC, and other outlets.

U.S. To Increase Worker Protection From Deadly Silica Dust for First Time in More Than 40 Years

Friday, December 18th, 2015

elizabeth grossmanFor the first time in 45 years, the U.S. Occupational Health and Safety Administration (OSHA) is poised to increase safety standards for worker exposure to the silica dust that can cause deadly and incurable lung disease. A rule that would cut in half the amount of silica dust to which most workers could be exposed—and limit levels further for construction and maritime workers—is expected to be finalized in February.

The industries that must comply with the new rule hoped to derail the new standard, including with an amendment to the 2016 federal spending bill that would have prevented any spending to implement the new rules and required more study of silica’s health effects. While in the bill up to the eleventh hour, this rider has been dropped from the budget released late Tuesday that is expected to be voted on later this week.

According to OSHA, silica exposure is a serious threat to nearly 2 million U.S. workers, including more than 100,000 whose jobs involve stone cutting, rock drilling and blasting and foundry work. Workers installing and manufacturing countertops are also at risk, along with those at hydraulic fracturing—or fracking—sites where industrial sand is used in oil and gas extraction and has been found to expose workers excessively. OSHA estimates that the new safety limits will save nearly 700 lives and prevent 1,600 new cases of silicosis each year. OSHA also estimates that when fully implemented, the rule would result in annual financial benefits of $2.8 to $4.7 billion, benefits that far exceed the rule’s annual costs.

“It’s often been said it’s a disease that’s been known since antiquity. The fact that silica causes cancer is more recent information,” Mike Wright, United Steelworkers director of health and safety, tells In These Times. “There’s no question the new standard would save lives. The longer it takes to get into place, the more people are exposed,” says Wright.

The World Health Organization’s International Agency for Research on Cancer has considered crystalline silica—particles small enough to inhale—a human lung carcinogen since 1997. The U.S. National Toxicology Program’s Report on Carcinogens classified respirable silica as a known human carcinogen in 2000. In addition to lung cancer, inhaled silica dust can cause silicosis, a serious, incurable and potentially fatal lung disease. In the lungs, silica dust can scar lung tissue and reduce lungs’ ability to process oxygen and increase susceptibility to other lung diseases, including tuberculosis.

OSHA’s existing silica standard, what’s known as a permissible exposure level, has not been updated since the agency was established. The Department of Labor’s concern about these exposures goes back to the 1930s when Secretary of Labor, Frances Perkins sounded the alarm about silicosis’ toll on American workers. The new rule, which would cut most workers’ permissible exposure levels to 50 micrograms per cubic meter over the course of an 8-hour workday from the currently allowed 100, was proposed in 2013. It followed reviews begun in 2003 by both the Department of Labor and Small Business Administration. Now, after public comment periods and meetings with industry and labor groups, the White House Office of Management and Budget (OMB) is ready to finalize the rule.

Blocking the new standard?

Despite this long history, support from the Department of Labor and research by the Centers for Disease Control and Prevention’s National Institute of Occupational Safety and Health (NIOSH) showing ongoing adverse affects of silica, industry groups mounted vigorous opposition to the new safety standard. An amendment or rider to what’s known as the omnibus spending bill—the legislation that will fund the federal government’s 2016 budget—was introduced by Senator John Hoeven (R-North Dakota). (North Dakota is among the states with the most fracking sites.) It would have stopped the Department of Labor from spending any money to implement the new silica rule and, among other measures, called for a new study by the National Academy of Sciences to justify the reduced exposure level.

“The Occupational Health and Safety Administration’s (OSHA’s) proposal to reduce the current exposure limit is not supported by sound science and will create a tremendous financial burden for many industrial sectors,” said the National Stone, Sand and Gravel Association in a statement posted to its website.

The association is among the industry groups and companies that have lobbied the White House on this issue, trying to persuade the administration that existing regulations are sufficient and that more stringent standards would be burdensome to business. Between March 2011 and 2014, OMB meeting records show 11 meetings about occupational exposure to crystalline silica. All but one were with industry groups.

In an emailed statement, Sen. Hoeven’s office explained that the amendment “would not only ensure that the latest science is used by OSHA, but also that the agency conducts a long-overdue study of the impact of current silica regulations on small businesses,” noting that the most recent Small Business Administration report on silica was completed in 2003 and that silica-related deaths dropped 93 percent between 1968 and 2007.

But as NIOSH itself has written:

There are no surveillance data in the U.S. that permit us to estimate accurately the number of individuals with silicosis. The true extent of the problem is probably greater than indicated by available data. Undercounting of silicosis occurs because there are no national medical monitoring surveillance programs, and there can be a failure to diagnose silicosis or record it as a cause of death on a death certificate. Silicosis often presents long after workers have left causative jobs. Such cases may not be detected in Bureau of Labor statistics as occupational disease and will not be detected if disease presents after retirement.

“We’re talking about people’s lives,” says Andrew Rosenberg, director of the Union of Concerned Scientists Center for Science and Democracy. “What gets lost in so many of these discussions is that this is fundamentally about public health and safety protections that are genuinely in the public interest. They’re not going to be done by businesses on their own,” says Rosenberg.

“If you wait for this kind of evidence people will be dead,” he noted of one of the rider’s requirements.

But, says National Coalition for Occupational Safety and Health acting executive director Jessica Martinez, striking a note of hope via email, “Given the overwhelming evidence about the hazards of silica, we are hopeful that the final budget agreed to by the White House and Congress will not interfere with OSHA’s scientifically sound, economically practical new silica standard.” Her wish was realized in the budget bill agreement reached last night that dropped the rider.

Additional riders’ impact on public and occupational health

But this is not the only amendment attached to the budget bill that would affect public and occupational health. Among the riders that would prevent environmental protections from being advanced is one that could keep scientists who receive federal research grants from serving on Environmental Protection Agency (EPA) science advisory boards. This could, for example, exclude scientists whose research is funded by the National Science Foundation and National Institutes of Health. Another budget provision could add additional delays to regulation of harmful chemicals by requiring EPA to replicate science studies submitted as part of chemical assessments.

Both of these riders essentially replicate bills introduced last year by House Republicans that the OMB recommended the president veto. While on the surface both sound reasonable, close reading shows they could easily result in achieving the opposite of what they claim to. Versions of both appear to remain in the budget bill that will go to the full House for a vote.

“The SAB rider,” explains UCS’s Rosenberg, “tips the scale even further in the direction of industry by twisting the concept of conflict of interest on its head. It says that academics who get money from government grants have a conflict but industry-supported scientists don’t.”

And as the Natural Resources Defense Council senior attorney Daniel Rosenberg explains further via email, “The rider attempts to hold EPA hostage by halting all Science Advisory Board activities until EPA changes its policies”—and has these changes vetted by a Government Accountability Office report. Both riders could affect all future chemical regulation and how federal occupational protection standards are set.

So what’s likely to happen?

“We’re all hoping for a ‘clean’ budget bill,” said Wright earlier this week. The bill that emerged Tuesday night is not exactly ‘clean,’ and how these riders play out, assuming the bill passes in the form currently available, remains to be seen. According to The Hill, the House is expected to pass an additional stop-gap spending measure today, to keep the government funded through December 22nd with a vote on the $1.1 trillion budget bill anticipated on Friday of this week.

But when it comes to silica, “Millions of workers will breathe easier,” says Martinez, “if this important new rule goes into effect as planned this coming February.”

About the Author: The author’s name is Elizabeth Grossman. Elizabeth Grossman is the author of Chasing Molecules: Poisonous Products, Human Health, and the Promise of Green Chemistry, High Tech Trash: Digital Devices, Hidden Toxics, and Human Health, and other books. Her work has appeared in a variety of publications including Scientific American, Yale e360, Environmental Health Perspectives, Mother Jones, Ensia, Time, Civil Eats, The Guardian, The Washington Post, Salon and The Nation.

This blog was originally posted on In These Times on December 16, 2015. Reprinted with permission.

Remembering Day Davis – and Standing Up for Temp Workers

Wednesday, August 19th, 2015

COSH-networkAt 3 p.m. on August 16, 2012, Duquan “Day” Davis reported to work at a Bacardi bottling plant in Jacksonville, Florida. It was his first day on the job, on assignment for Remedy Intelligent Staffing, a temporary employment agency. For Davis, 21, a recent graduate of the federal Job Corps program, the temp job at Bacardi was his first job ever.

Less than two hours after showing up for his first shift, Davis was dead. The young worker had been sent to clean out broken bottles that were clogging a palletizer. While he was out of sight, the machine was started up again, crushing him to death.

In Feb. 2013, OSHA cited Bacardi for 12 safety violations and proposed $192,000 in fines against the company, finding that the firm had not trained temporary employees – or its full-time employees – on the lock out and tag out procedure that could have prevented the start-up of the machine that killed Davis. “A worker’s first day at work shouldn’t be his last day on earth,” said Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health.

The fine against Bacardi was later reduced to $110,000. Remedy Intelligent Staffing – Davis’ actual employer – was never cited. The temp firm is part of the Select Family of Staffing Companies, America’s fourth-largest industrial temp agency, with $1.9 billion in revenue in 2012.

Davis’ story – and the heartbreak felt by the family and fiancée he left behind – is hauntingly told in the independent documentary “A Day’s Work.” The film was produced by David DeSario, himself a former temp worker. It features Barbara Rahke, executive director of PhilaPOSH and board chair of National COSH, and was screened at the National Conference on Worker Safety and Health in June of this year.

“A Day’s Work” is gaining attention at film festivals and from labor and safety audiences in cities across the country.  You can see the documentary at upcoming screenings  in Massachusetts, Colorado, Florida, New Jersey, and Washington DC.

This year, some 14 million Americans will work on assignment to a temporary agency. Three years after Davis’ tragic death, only a few states have laws on the books that offer protections for temporary workers, among them Massachusetts and California.

  • In 2012, after successful lobbying by MassCOSH and other groups, Massachusetts passed the Temp Workers Right to Know Law. It requires agencies to key details of job assignments, in writing, to temp workers.
  • In 2014, following a push by WorkSafe, SoCalCOSH and other advocacy groups, the California legislature passed a law will requiring host employers and their staffing firms to take joint responsibility for the health, safety, and rights of temporary employees.

Too often, temp agencies and host employers still try to pass off responsibility for proper safety procedures. The host company says: “They’re not our employees.” The temp agency says, “It’s not our workplace.” As a result, workers fall through the cracks. A review of data in five states by the investigative news website ProPublica found that temps are 36 to 72 percent more likely to get injured at work than full-time employees.

That’s why safety advocates are calling for national standards. Recommendations from National COSH, the National Staffing Workers Alliance and the Occupational Health and Safety Section of the American Public Health Association include:

  • A clear definition of responsibilities of host employers and temporary staffing agencies in complying with the health and safety laws
  • A written policy specifying health and safety training requirements for temporary staffing agencies
  • Increased and better tracking of injury and illnesses for temps
  • Improved protocols when OSHA investigates incidents involving temporary employees.

For more information on temp workers, see the National COSH Campaigns page.

Also, check out upcoming screenings of “A Day’s Work” in Massachusetts, Colorado, Florida, New Jersey, and Washington DC.  To schedule a screening of “A Day’s Work” in your community, contact: TempEmployees@gmail.com

This blog originally appeared at Coshnetwork.org on August 13, 2015. Reprinted with permission.

National COSH links the efforts of local worker health and safety coalitions in communities across the United States, advocating for elimination of preventable hazards in the workplace. “Preventable Deaths 2015,” a National COSH report, describes workplace fatalities in the United States and how they can be prevented. For more information, please visit coshnetwork.org. Follow us at National Council for Occupational Safety and Health on Facebook, and @NationalCOSH on Twitter.

OSHA Secures Robust Injunctive Relief for Whistleblower

Monday, May 18th, 2015

jason zuckermanOn May 7, 2015, OSHA obtained a preliminary injunction in a Section 11(c) whistleblower case barring Lear Corporation from further retaliating against the whistleblower, Kimberly King. The injunction is a significant win for whistleblowers because the court’s order broadly construes the scope of protected whistleblowing to include disclosures to the media, and it signals OSHA’s stepped up enforcement of whistleblower protection laws.

Kimberly King worked for Lear Corporation at a plant in Alabama that produces foam cushions that are used in car seats and headrests. King raised concerns about the health effects of exposure to a chemical called toluene diisocyanate (“TDI”).   Based on internal tests and tests conducted by OSHA, Lear concluded that TDI levels were within legal limits. King, however, remained concerned that she developed asthma because of her exposure to elevated TDI levels at the plant, and King shared her concerns with media outlets. An article on nbcnews.com described how TDI and other workplace chemicals correlate with certain respiratory conditions like asthma, and the article cited a physician who concluded that King is in the top 25 percent in terms of the levels of isocyanate antibodies in her blood.  King also participated in a YouTube video accusing Lear of exposing employees to TDI.

Lear suspended King and another employee from work without pay for participating in the video on the ground that King should have known that the plant was not exposing employees to elevated levels of TDI.   In addition, Lear demanded that King recant her statements to the media. King continued to raise her concerns by going to Hyundai in March 2015 to deliver a letter asking it to fix the conditions at the plant. Lear then suspended King for seven days without pay, and upon King’s return, Lear terminated her employment and sued her for defamation and interference with business relations.

After an evidentiary hearing, Judge Callie V.S. Granade concluded that King’s participation in the YouTube video, her disclosures to the press, and her disclosures to OSHA constitute protected activity. In addition, she issued an order providing broad preliminary relief, including:

  • enjoining Defendants from terminating, suspending, harassing, suing, threatening, intimidating, or taking any other discriminatory or retaliatory action against any current or former employee based on Defendants’ belief that such employee exercised any rights he or she may have under the Occupational Safety and Health Act;
  • enjoining Defendants from telling any current or former employee not to speak to or cooperate with representatives of the Secretary of Labor;
  • enjoining Defendants from obstructing any investigation by the Secretary of Labor or its designee; and
  • enjoining Defendants from suing current or former employees because those individuals complained about health and safety or because they engaged in protected activity under the Occupational Safety and Health Act.

In assessing whether OSHA’s injunction serves the public interest (one of prerequisites for granting a preliminary injunction), Judge Granade made a critical observation about the public policy undergirding whistleblower protection laws: “The public retains an interest in safe and healthy workplace environments for all employees, and protecting employees who speak up about perceived dangers in the workplace. This preliminary injunction may also help prevent future violations of section 11(c) and inform current employees of their rights under this section.” This order is a great example of the type of vigorous enforcement required to effectively protect whistleblowers.

About the author: The author’s name is Jason Zuckerman. Jason Zuckerman is Principal at Zuckerman Law (www.zuckermanlaw.com)  and represents whistleblowers nationwide.  He is the author of the Whistleblower Protection Law Blog (www.whistleblower-protection-law.com).

 

The Words of Dead Workers

Tuesday, April 28th, 2015

Leo GerardTo give voice to 35 workers killed on the job over the past 35 years at a massive refinery in Texas City, hundreds of surviving family members, co-workers and friends gathered there last month to erect white crosses marked with their names.

They conducted the ceremony on the 10th anniversary of an explosion that killed 15 workers and injured more than 170, including townspeople.

Marathon Petroleum Corp., which bought the refinery from BP two years ago, did its best to shut the mourners up. Marathon uprooted the crosses and tossed them in a box like trash within hours of the commemoration.

For years during contract negotiations, the United Steelworkers (USW) union has pressed ungodly profitable oil companies to improve safety. This fell mostly on deaf ears. On Feb. 1, USW refinery workers began loudly voicing this demand by striking over unfair labor practices (ULP). Ultimately 7,000 struck 15 refineries. Within six weeks, all but five oil corporations settled.  Marathon is a hold out. It wants to cut safety personnel. It does not want to hear about dead workers.

Yet the (ULP) strike is about dead workers. Over the past five years, at refineries nationwide that employ USW members, 27 workers have died – incinerated, gassed or crushed to death. And the peril of refineries spills into communities. In Texas City at the refinery owned by BP in 2005, flying glass from windows shattered in the explosion injured townspeople. In the first six weeks of this year, explosions occurred at three refineries, closing streets, raining eye-irritating white ash on neighborhoods and forcing residents to shelter indoors for hours.

As the USW strike over unfair labor practices drags on in Texas City at what is now called the Marathon Petroleum Corp. Galveston Bay Refinery, USW members feel Marathon’s demands for reduced safety measures indicate the corporation refuses to hear the cautionary tales of the facility’s deadly past. Brandi Sanders, treasurer for the local union there and a 10-year veteran maintenance worker, told me that it is as if Marathon believes the 2005 explosion and the 20 other deaths since 1980 don’t exist because they didn’t occur on Marathon’s watch.

“But the union does not want to go back. We lived through those experiences. And we learned from that history. And we should not be forced to repeat it,” Sanders said.

That was the reason for the candlelight ceremony on March 23. To make those deaths real for Marathon managers who did not experience them in the visceral way that co-workers and families and neighbors did.

The mourners marked each of the 35 crosses with the name of a worker killed at the nation’s fifth largest refinery since 1980, which is the year of the last nationwide strike at refineries. A bagpiper played “Amazing Grace” as the participants, holding candles aloft in the dark, marched two blocks from the local union hall to the refinery. They wanted to place the crosses on the site where the workers had lost their lives.

But police officers blocked their path. Marathon had called the cops. Marathon refused to acknowledge the tragic anniversary, even with a moment of silence at the refinery as BP had done annually. And it wouldn’t allow a commemoration by anyone else on its property either.

The officers permitted the mourners to erect the white markers in a median strip along the highway, as often is done by family and friends of car crash victims. The ceremony participants called out each name, tolled a bell and placed the marker. Tears flowed.

Just a few hours later, picketers saw managers leave the plant, descend on the memorial in the darkness and rip each of the 35 crosses out of the ground.

Larry Burchfield, a member of the USW’s National Oil Bargaining Policy Committee and a machinist at the refinery for 20 years while it was owned first by Amoco, then BP and now Marathon, told me that disrespect Marathon showed for the dead is the same disregard Marathon shows for the living.

If Marathon valued the lives of workers, the corporation wouldn’t try to save a couple of bucks by eliminating the safety measures put in place to preserve workers’ lives after the 2005 explosion, Burchfield said. “Marathon’s safety policies are called life critical policies,” he told me, “But your life is not so critical when it is going to affect Marathon’s bottom line.”

Marathon’s “it wasn’t me; it was BP” reasoning for downgrading safety just doesn’t cut it. Don Holmstrom, director of the Western Regional Office of the U.S. Chemical Safety Board (CSB),explained why in an interview with the Galveston County Daily News for a story on the anniversary of the 2005 blast.

“I think it is sad to report that not enough appears to have been learned, and the problem persists. It is not a BP problem. Although the incident occurred at (BP’s) Texas City refinery, there is an industry problem,” said Holmstrom, who was the CSB’s lead investigator into the 2005 blast.

Occupational Health and Safety Administration (OSHA) Assistant Administrator Jordan Barab said of recent refinery explosions, “each repeated a lesson that the industry should have already learned.”

Marathon is no outlier, operating in perfect safety. Numerous problems have occurred at the plant since Marathon took over. An explosion and fire at the refinery on Feb. 21 last year critically injured Oscar Garcia, who was employed by a company Marathon contracted to perform work on the site. Garcia has sued Marathon for negligence. The refinery released more than 128,000 pounds of silica and alumina oxide into surrounding communities in two incidents this year. Several fires have occurred since the strike began, including two within 24 hours witnessed by picketing workers.

After the BP explosion, the CSB and others recommended refineries refrain from placing personnel in temporary facilities near volatile units, especially during shut downs and startups. Many of those killed in the BP explosion were in temporary trailers during a unit start up. Despite that, within the past year, Marathon erected three lunch tents during a repair cycle on the same ground where bodies and debris had been haled away after the 2005 blast.

Not one of the 1,100 USW members who work for Marathon has crossed the picket line. They’ve gone without pay for nearly three months because they know what’s at stake: their lives.

In another attempt to help Marathon hear that, workers replanted the 35 white crosses in a long line in front of the union hall. They managed to get them back from Marathon through the police department.

Today, on Workers’ Memorial Day, which commemorates those who have lost their lives on the job, the USW members will place a solar spotlight in front of each cross, to highlight the lives sacrificed when safety was compromised. Hopefully, that will open the eyes of Marathon managers who deliberately closed their ears to the words of dead workers.

This article originally appeared in ourfuture.org on April 28, 2015. Reprinted with permission.

About the author: Leo W. Gerard is the president of the United Steelworkers International union, part of the AFL-CIO. Gerard, the second Canadian to lead the union, started working at Inco’s nickel smelter in Sudbury, Ontario at age 18. For more information about Gerard, visit usw.org.

Big retail chains like Walmart fight being held accountable for injuries to workers

Monday, January 19th, 2015

Laura ClawsonThe federal government is trying to do a better job tracking workplace injuries, which would make it easier for workers to show that they were injured on the job and get some compensation. But—of course—industry lobby groups are fighting hard to prevent accountability.

Currently, manufacturing companies are required to tell the government about injuries workers suffer on the job. But employers in other industries don’t have to report those injuries, which makes it easier for them to claim they’re not responsible. If workers can’t show that there’s a pattern of, say, tendinitis in a specific workplace, they’re more likely to lose injury claims against the boss. After all, any one person can get tendinitis for all sorts of reasons. But if there’s information on how many people have injuries in that workplace, workers might be able to point to patterns that would show that their own injuries aren’t random chance or due to something they did outside working hours.

Under a planned rule from the Occupational Safety and Health Administration, companies with more than 250 workers and smaller companies in particularly dangerous industries:

“… would be required to submit data including the job title of the employee, the type of injury, where it occurred, what the worker was doing before the incident, and the number of workdays the employee had to miss as a result. With the information, OSHA and employers ‘will be better able to … abate workplace hazards,’ an OSHA spokeswoman said in an email.”

It’s information employers are already required to keep records of. All that would change would be that they would submit it to the government four times a year. Not a huge expense or effort, you’d think. But:

“The National Retail Federation—a group that represents Walmart, McDonald’s, and The Container Store—spent $2.4 million lobbying on this measure and other issues between January and September of last year. In a letter to OSHA last March, the group complained that the rule would require disclosure of confidential information, lay blame on employers for non-work-related injuries, be too costly, and empower unions. Last year, the Retail Industry Leaders Association, which counts Walmart, Target, and Home Depot among its more than 200 members, also urged the agency to kill the rule. The US Chamber of Commerce spent more than $28 million between July and September of last year on lobbying—including on this regulation, which the Chamber says is more burdensome on industry than OSHA will admit. And the Coalition for Workplace Safety, an association of trade groups that includes the Chamber, the NRF, and NILA, has asked OSHA to scrap the rule.”

“Require disclosure of confidential information”—that’s the same information that the manufacturing industry has long been required to disclose—”lay blame on employers for non-work-related injuries”—or, you know, keep employers from being able to lawyer their way out of being held responsible for work-related injuries—”be too costly”—sure, if the company had been escaping responsibility for a lot of work-related injuries that it’s suddenly held accountable for—”and empower unions”—by providing information about whether the employer is harming its workers. In other words, “it’s convenient and cheap for us to avoid accountability for workplace injuries, and we would like that to continue.” And to be fair, they probably do have something to fear. Even without this reporting requirement, for example, Walmart has faced serious fines for workplace safety violations. Imagine if that information was all in one place for the government, workers, and reporters to see.

This blog originally appeared in dailykos.com on January 19, 2015. Reprinted with permission.

About the Author: Laura Clawson Daily Kos contributing editor since December 2006. Labor editor since 2011.

Proposed Silica Standard Needs to Be Strengthened

Monday, March 24th, 2014

Image: Mike HallWhile the AFL-CIO “strongly supports” a proposed new rule that would limit workers’ exposure to silica dust, AFL-CIO Safety and Health Director Peg Seminario outlined several areas that should be strengthened to provide better worker protection from deadly silicosis and other diseases caused by silica exposure.

Testifying before an Occupational Safety and Health Administration (OSHA) hearing, Seminario noted that changes to the current exposure standard—now more than 40 years old—were first proposed in 1997 and that when the proposed new standard was sent for review to the Office of Management and Budget in 1991, it lingered there for two-and-a-half years.

Every day that a final standard is delayed, workers will continue to be at increased risk of disease and death.

Every year some 2 million workers are exposed to silica dust and, according to public health experts, more than 7,000 workers develop silicosis and 200 die each year as a result of this disabling lung disease. Silicosis literally suffocates workers to death. Silica is also linked to deaths from lung cancer, pulmonary and kidney diseases.

Seminario said that permissible exposure limit in the proposed standard while set at half the current level is still too high. She urged that a stricter standard be included in the final and said that other provisions in the standard should be strengthened, including:

  • Establishing regulated work areas to limit the number of workers on the job who are exposed to silica dust;
  • Requiring that the primary method to control silica dust is through engineering and work practice controls rather than through respiratory control—i.e., masks;
  • Requiring employers create a written compliance/exposure control plan; and
  • A stronger standard to trigger medical surveillance of workers exposed to silica.

Other areas she addressed included protecting the confidentiality of workers’ medical records, preventing employer retaliation against workers who seek medical care for exposure to silica and better training and information for workers.

The hearings continue next week and workplace safety and health experts from other unions, along with workers who have developed silica-related illnesses, will appear during the course of the hearings. But a number of employer groups in such industries as sand and gravel, brick, fracking where silica dust is prevalent, the U.S. Chamber of Commerce and other corporate groups have or will testify against the proposed rule during the 14 days of hearings in Washington, D.C.

This article was originally printed on AFL-CIO  on March 21, 2014.  Reprinted with permission.

About the Author: Mike Hall is former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

Industry Attacks on ‘Scaffold Law’ Put Construction Workers on Shaky Ground

Monday, March 17th, 2014

Michelle ChenNew York City’s tens of thousands of construction workers face a precarious landscape at work.  Teetering at the edge of rooftops, sidestepping mammoth cranes and noisy bulldozers, and navigating through half-collapsed walls and chemical-laden debris, they’re surrounded by hazards day in and day out. Yet many workers remain silent about unsafe conditions. For them, the risk of retaliation outweighs the risk to life and limb.

Given these hazards, one might assume that demanding employers take responsibility for worker safety is about as basic a precautionary measure as a hard hat. Yet, construction industry lobbyists are working hard to gut the Scaffold Law, a keystone piece of occupational safety legislation that has for more than a century added an extra layer of accountability for firms that fail to protect workers from harm. Complaining that the law cuts into their bottom line, opponents have in recent months pushed for reform legislation in Albany that could prove disastrous for the workers most at risk: non-union Asian and Latino workersdoing small-scale and informal building jobs already off the regulatory radar of the federal Occupational Safety and Health Administration (OSHA).

The Scaffold Law, a state law on the books since 1885, states that worksites above the ground “shall be constructed, placed and operated as to give proper protection to a person so employed.” The law holds owners and contractors liable for injuries that result as a violation of those standards, and allows employees to sue for damages if they can demonstrate that such a violation occurred and caused the injury in question. Advocates say that the law thereby promotes safety standards such as provision of appropriate training and protective equipment, as well as checks to ensure that worksites are structurally sound.

Opponents say New York’s law is a frivolous measure unique to a notoriously litigious city. But in reality, lawmakers passed the Scaffold Law in response to alarming reports of injuries and deaths caused by unsafe conditions at building sites, including faulty scaffolds. And in fact, other states have passed similar safety laws over the years.

Illinois’ occupational safety record worsened after the state repealed the law in 1995. According to one analysis by a trial lawyers’ group, “In 2004, the incidence rate of falls from scaffolding/staging in the construction industry in Illinois was more than triple the national rate.”

The firms and business groups, including the Associated Builders and Contractors, American Insurance Association and, in a nod to diversity, Association of Minority Enterprises NY, mobilizing against the law blame it for excessive litigation and insurance costs, saying that it puts undue emphasis on the employer rather than the “personal responsibility” of the worker. They say the law should be rewritten to allow for consideration of “comparative negligence,” to take into account workers’ alleged carelessness. Proposed changes to the law would explicitly direct juries to consider the degree to which the worker caused the accident. The idea is to create more legal wriggle room to limit the company’s legal and financial liability toward victims.

Critics point out that under the current law, the courts are already tasked with adjudicating these factors in civil suits when determining whether the employer is legally at fault for a safety failure, since the law addresses only proven violations of safety codes. But more importantly, critics argue that the concept of “comparative” responsibility is absurd in light of the outsized power imbalance between construction workers and bosses.

Of course, the Scaffold Law provides just a thin layer of protection against an endemically oppressive labor market.

But the Center for Popular Democracy (CPD), a New York City-based advocacy group, argues that the Scaffold Law helps “protect workers from dangers at work that lead to disparate outcomes based on race, ethnicity, or language.”

Occupational hazards, as well as labor abuse, are rife across the construction industry, particularly for more casual, unregulated work, such as the day laborer jobs that proliferated in the aftermath of Superstorm Sandy and the small-scale contractor projects on private suburban homes. Falls from heights made up over one-third of construction worker deaths in 2012, and construction workers suffer injuries that are more frequent and severe than workers in many other private-sector industries, according to data from the Bureau of Labor Statistics. According to an analysis by CPD, in New York City between 2003 and 2011, a stunning 74 percent of fatal construction-site falls investigated by OSHA involved Latino or immigrant workers, exceeding their representation in the general population and the construction workforce. Most occurred on smaller, non-union worksites, where undocumented labor is typically concentrated.

Other research from advocacy groups and occupational-safety authorities suggests Latino immigrant workers are deterred from speaking out about unsafe conditions, in part due to limited English ability or fear of exposing their immigration status. That compounds the oppression of economic precarity and discrimination; it’s hard to feel empowered to challenge your working conditions when you’re “off the books.”

CPD’s analysis highlights the perilous tightrope these workers traverse each day. In one case narrative in the report, two men were working at a height of 16 feet, and “They were moving and adjusting the scaffold when employee #1 fell. Employee #1 was not tied off to his lifeline. Employee #1 was pronounced dead at the hospital.”

Those who survive such workplace accidents may never fully heal. In an interview with WNYC last year, Pedro Corchado recalled an accident while working on a ladder in the Bronx in 2008. “The ladder collapsed on me,” he said. “I fell about 11 feet or so to the concrete floor. I suffered neck and lower back injuries that will be with me the rest of my life.”

Under the proposed reform, these workers might come under scrutiny for being “negligent”—Why did he get on a shaky ladder in the first place? Why wasn’t his lifeline securely tied? Advocates counter that question’s about the employer’s negligence—Who was charged with overseeing the worksite? Did inadequate equipment or poor management place workers in harm’s way?— ultimately hold more weight.

“The fact of the matter is, you could be doing everything right,” CPD Director of Strategic Research Connie Raza tells Working in These Times. “If you don’t have the right equipment, you’re not going to be able to keep yourself safe in every circumstance that comes up. And it is the owners’ and the contractors’ responsibility to make as safe a workplace as possible, but certainly as safe a workplace as legally required.”

As for the business case against the law’s cost, it is true that some of this uniquely litigious city’s largest civil settlements in recent years came from suits involving construction-related scaffold and ladder injuries.

But this is offset by the permissiveness of the federal regulatory environment. According to the AFL-CIO, the average penalty assessed for a “serious” violation of an OSHA standard, such as failing to provide appropriate mechanical safeguards or protective gear—in New York in 2012 was $2,164. (Criminal prosecutions are virtually unheard of, and the agency’s inspection and enforcement capacity is severely hampered by chronic understaffing).

While the contractors at the top of the construction industry complain of lawsuits and insurance costs, Razza says the suggested reforms “would shift responsibility away from owners and contractors who control the work site, to workers who don’t, and who are often really in a relationship where they feel threatened if they come forward with complaints … The construction and insurance industries are trying to push back and save money, and the reason that the law is so important is that it saves lives.”

This article was originally printed on Working In These Times on March 12, 2014.  Reprinted with permission.

About the Author: Michelle Chen is a contributing editor at In These Times, a contributor to Working In These Times, and an editor at CultureStrike. She is also a co-producer of Asia Pacific Forum on Pacifica’s WBAI. Her work has appeared on Alternet, Colorlines.com, Ms., and The Nation, Newsday, and her old zine, cain.

Texas Fertilizer Co. Cited for Safety Violations in Blast that Killed 15

Saturday, October 12th, 2013

Image: Mike HallThe company that operated the West, Texas, fertilizer plant where 30 tons of highly explosive ammonia nitrate—stored in wooden sheds without sprinkler systems and near other combustible material—caught fire, exploded and killed 15 people, including 10 firefighters, in April was cited for two dozen serious safety violations by the Occupational Safety and Health Administration (OSHA).

OSHA issued the citations Wednesday but, because of the Republican government shutdown, the agency was unable to announce the action. Sen. Barbara Boxer (D-Calif.), chair of the Environment and Public Works Committee, announced the safety violations Thursday.

Among other violations, West Fertilizer Co. was cited for unsafe handling and storage of the anhydrous ammonia and ammonia nitrate that exploded and leveled large parts of the town of West. The company also was cited for not having an emergency response plan. OSHA is proposing fines totaling $118,300.

Also after the blast, it was revealed that the plant had not been inspected by OSHA since 1985.

Storage of ammonia nitrate is regulated by a “patchwork” of state and federal standards with “many holes,” the U.S. Chemical Safety Board (CSB) told a Senate hearing earlier this year.

Eleven years ago, the CSB urged the Environmental Protection Agency (EPA)—which hasn’t updated its rules on ammonia nitrate since 1997—to adopt its safety recommendations for storage, handling and use of the chemical.

In August, President Barack Obama issued an executive order for federal agencies, including OSHA and the EPA, to develop new rules to address the handling and storage of industrial chemicals, such as the ammonia nitrate fertilizer in the Texas explosion. Those rules were due by Nov. 1 but, because of the Republican government shutdown, they are likely to be delayed.

Thousands of facilities around the nation store large amounts of ammonia nitrate, especially in rural areas. That’s why new rules are desperately needed, said Boxer.

“All of these things that they are cited for are pretty much standard operating procedure with how you deal with these chemicals.”

This article was originally printed on AFL-CIO  on October 11, 2013.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.

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