Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘OSHA’

2018: The Workplace Safety and Health Year in Review

Thursday, January 3rd, 2019

As we sit here mired in yet another pointless government shutdown stranding tens of thousand of workers without paychecks, we pause to reflect over the past year in workplace safety and health. The madness in Washington DC continues, and while we can’t make any guarantees for the White House or the Senate, things are at least looking up in the House of Representatives.

Meanwhile, the indefatigable Confined Space team (of one) has posted almost 250 times over the past year, talking about the carnage in American workplaces, but also the victories of unions, activists and dedicated government officials. I can’t honestly say I did it ALL by myself. I was aided by the many of you who sent me articles and story ideas that I never would have noted, and those of you who give me the inspiration to go on when I’d really rather be binge-watching some some addictive Netflix series, reading a book or riding my bike. (Actually, I manage to do enough of that as well.)

The real story, of course, continues to be the more than five thousand workers who go to work and never come home, the tens of thousands who die each year from occupational diseases like black lung, silica-related disease and work-related cancers, and the millions of workers who are seriously injured every year in preventable incidents.  The struggle continues as we hope that the lessons of 2018 will help make 2019 a better one for this nation’s working people. 

  1. A New and Improved Congress (or at least the House): The long awaited Blue Wave hit the House of Representatives full force last November, bringing with it real oversight hearings, better budgets and legislation: Donald Trump — along with the Department of Labor and OSHA — don’t know what’s about to hit them come the new Democratically controlled congress and its ability to exercise its oversight function to ensure that Labor Department agencies actually work to fulfill the mandate that Congress has given them.  In a symbolic move, the House has already changed the committee name back to the Committee on Education and Labor, instead of the rather anodyne in impotent “workforce.” But real work is on deck. Workplace safety and health hearings are already being planned, as well as legislation to move improve worker protections. While it’s unlikely that any pro-worker legislation will pass the Senate or be signed by the President, we can expect new ideas and new energy: Rumor has it that a record number of new Democratic House members want to be on the Education and Labor Committee. Something to look forward to.
  2. A Headless Agency: By the end of January, OSHA will move into its third year without an Assistant Secretary — a new record in the 48-year history of the job-protection agency. The confirmation of Trump nominee Scott Mugno remains mired down in a fight between HELP Committee Ranking Member Patty Murray (D-WA) and Republicans who don’t want to confirm Democratic nominees for the National Labor Relations Board (NLRB) or the Equal Employment Opportunity Commission (EEOC.) The lack of an Assistant Secretary hits particularly hard as other OSHA veterans like Region 8 Administrator Greg Baxter and long-time Director of Enforcement Tom Galassi also retire.  Meanwhile, Deputy Assistant Secretary Loren Sweatt continues to labor on, almost alone in the once hyper-active Assistant Secretary’s office — no doubt looking forward to testifying at OSHA oversight hearings this year.
  3. Inspectors down, enforcement units down, penalties down: The number of OSHA inspectors has hit an all-time low according to data compiled by Bloomberg Environment Reporter Bruce Rolfsen in November. “The agency ended fiscal 2018 with 753 inspectors, compared to 860 at end of fiscal 2014, the personnel data, obtained through a Freedom of Information Act request, show.” And that means fewer serious injuries being investigated.  And last June, The National Employment Law Project (NELP) issued a report showing that worksite enforcement activity by the Occupational Safety and Health Administration is declining under the Trump administration. Secretary of Labor Alex Acosta likes to boast that OSHA conducted slightly more inspections in the last two fiscal years than they did in the last year of the Obama administration, but NELP points out that in FY 2017 OSHA changed the way it counts inspections. Instead of just counting the number of inspections conducted, OSHA moved to counting Enforcement Units. And those numbers under Acosta don’t look quite as good as they did under Obama. Things also don’t look too good for workers in at least one state plan state, Kentucky, which suggests that OSHA’s oversight over state plans (which run almost half the country’s OSHA programs) may be weakening as well.
  4. Return of Black Lung: After almost being eradicated in the late 1990s, black lung is back, with a vengeance. Epidemiologists at the National Institute for Occupational Safety and Health say they’ve identified the largest cluster of advanced black lung disease ever reported, according to an NPR story by Howard Berkes last January. The cause is not just coal dust, but also silica exposure, caused by cutting through more quartz rock as the coal seams get smaller.  Berkes recently filled out the story alleging that the failure of regulatory agencies to understand what was happening and respond are largely to blame for the new epidemic. Meanwhile, making things worse, the state of Kentucky is killing the messenger by no longer allowing radiologists to diagnose black lung. Only pulmonologists will be allowed to review black lung cases, but there are only six pulmonologists in Kentucky that have the federal certification to read black lung X-rays and four of them routinely are hired by coal companies or their insurers.
  5. Brett Kavanaugh: Republicans confirmed a Supreme Court justice who, in addition to his questionable behavior around women, displayed shockingly little knowledge of the Occupational Safety and Health Act, and even less understanding of workers’ struggle to survive in the workplace. After a Orca (aka “Killer Whale”) dismembered and drowned a SeaWorld trainer, Kavanaugh dissented in a court case challenging the resulting OSHA citation. Kavanaugh wrote 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. While none of this was true, Kavanaugh nevertheless doubled down on these assertions during his Senate confirmation hearing. Kavanaugh’s opinion related to other workers’ rights issues were not much better.  Nevertheless, today he sits on the Supreme Court.
  6. Regulatory Rollback: OSHA is struggling valiantly to roll back regulations that protect workers and slow down those under way, to fulfill the visions of Donald Trump, Republicans in Congress, and Corporate America. Happily, the curse of OSHA — how impossibly long it takes to issue any single health and safety standard — has become a blessing for workers because it takes almost as long to repeal a standard as it takes to issue a new one.  Nevertheless, OSHA is in the process of attempting to weaken beryllium protections for construction and maritime workers, and striving to roll back a major section of the “electronic recordkeeping” regulation.The good news is that the courts not only upheld OSHA’s silica standard, but also told the agency to add more worker protections or at least explain its decision not to.

    While the road to roll back regulations is long and difficult, the agency’s chance of stopping any significant new workers protections from being finalized is much better. Standards to protect workers from infectious diseases and chemical plant hazards languish on the agency’s “long-term agenda,” while other standards are unlikely to see the light of day anytime in the near future because of Trump’s “one-in, two-out” regulatory budget. 

    Other agencies, such as the Department of Agriculture, also contribute to increase hazards for workers by allowing poultry processing facilities to increase line speeds. And EPA is close to repealing Obama era chemical plant safety protections, and the Department of Labor’s Wage and Hour division is in the process of allowing 16-year-olds to operate potentially hazardous patient lifts.  Bad news not only to workers, but to residents living near chemical plants — and granny in the nursing home.

  7. Methylene Chloride:  The Obama administration had proposed to ban the use of Methylene Chloride due to the deaths of numerous workers and citizens who weren’t aware of the highly hazardous properties of the solvent in enclosed spaces.

    Obama’s EPA, under former EPA Administrator Scott Pruitt, agreed with chemical manufacturers, and decided that a ban wasn’t a very good job. Obviously, if consumers and workers couldn’t read between the lines of the ineffective warnings on the containers, they deserved to die.  After some hard questioning at Congressional hearing, and meeting with family members of the victims of methylene chloride, Pruitt reversed himself and sent the ban to the White House for review. Although the ban has not yet emerged from the dark, dank dungeons of the White House, family members and other organizations like the Natural Resources Defense Council, the Environmental Defense Fund Green Chemistry and Commerce Councils, and Safer Chemicals, Healthy Families, aren’t waiting around. They have succeeded in pressuring retailers like Lowes, Home Depot, WalMart, Sherwin Williams, Home Hardware and True Value to stop selling the product. Organizing and citizen action works, even in Trump times.
  8. The Fate of the Labor Movement: A strong labor movement is good for workers and good for workplace safety. This year has seen ups and downs for the fate of American labor movement.  On the down side, in June, the Supreme Court handed down its Janus decision fulfilling the dreams of corporate America in its quest to weaken not just public employee unions, but the labor movement in general. But public employee unions are not going gentle into that good night. They are fighting back, convincing their members that union membership is the best bargain they’ll find.  And, as labor reporter Steve Greenhouse describes, 2018 saw “a startling surge of strikes in both the private and public sectors” — tens of thousands of teachers in West Virginia, Arizona, Colorado, Kentucky, and North Carolina went on strike and hotel workers struck in Chicago, Boston, Detroit, Honolulu, and San Francisco. And “15,000 patient-care workers, including radiology technicians, respiratory therapists, and pharmacy workers, held a three-day strike against the University of California’s medical centers in Los Angeles, San Francisco, San Diego, Irvine, and Davis. An additional 24,000 union members, including truck drivers, gardeners, and cooks, struck in sympathy.” Even 20,000 Google workers walked out to protest how the company handled sexual harassment accusations against top managers.

    The other bad union news was the elimination of the health and safety offices in the Service Employees International Union and the American Federation of Teachers, continuing the general reduction of health and safety staff still working in American labor unions — not a good thing for the health and safety of American workers, organized or unorganized. 
  9. Journalism: American workers continue to suffer and die in obscurity and the agencies tasked to protect them remain seriously underfunded and legally handicapped. The only hope for many of these workers lies with the excellent investigative pieces published by this country’s dwindling corps of investigative journalists, especially those who focus on labor and health & safety issues. Longtime labor Charleston Gazette-Mail labor reporter Ken Ward received a McArthur Genius Award for his reporting about labor and environmental issues in West Virginia. Ward is teaming up with ProPublica for more hard-hitting pieces in the future.  Retiring National Public Radio reporter Howard Berkes has produced two powerful investigative pieces on the return of black lung disease among the nation’s coal miners. (Here and here.) He will be missed. Veteran investigative reporter Jim Morris at the Center for Public Integrity continues his excellent work, most recently with a story on the deaths of oil field workers and problems at Kentucky OSHAJamie Satterfield at the Knoxville News Sentinel published a hard-hitting piece on the health problems suffered by workers who cleaned up the massive coal-ash spill at the Tennessee Valley Authority Kingston Fossil Fuel Power Plant. 

    You can listen to an interview with Satterfield hereAntonia Juhasz of Pacific Standard about the workers working and dying on the Dakota Access Pipeline and how difficult it is for OSHA to enforce safe working conditions.   Will Evans of Reveal and the Center for Investigative Reporting has focused relentlessly on electric car maker Tesla and documented how the company put style and speed over safety, was hiding injuries and ignoring the concerns of its own safety professionals.  Eli Wolfe of Fair Warning wrote a devastating piece about worker deaths on small farms and how Congress prohibits OSHA from investigating incidents on farms that comprise about 93 percent of U.S. farms with outside employees, employing more than 1.2 million workers. ProPublica’s Kara Feldman penned an investigative piece into the death of Mouctar Diallo, age 21, a Guinean immigrant crushed to death in 2017 by a 40 ton garbage truck, and the plight of New York’s unorganized and mostly immigrant garbage collectors. Chemical and Engineering News reporter Jeff Johnson keeps us up-to-date on goings-on at the Chemical Safety Board here and here. And Kartikay Mehrotra, Peter Waldman and Jonathan Levin of Bloomberg News have written a long piece on how the growing threat of deportation is causing immigrant workers endure abuses in jobs Americans don’t want. 

    And I just want to give a shout-out to some of my favorite labor/OSH/environment reporters:  Labor reporter Steve Greenhouse who continues his eloquent defense of workers even (or especially) after his retirement from the New York Times.  And then there’s Juliette Eilperin and the team at the Washington Post, David Kay Johnston who follows worker issues at DC ReportSuzy Khimm at NBC, Mike Elk of Payday Report, Wooty Sixel at the Houston Chronicle, and . And honorable mention of those who labor for labor at various news bureaus: Rebecca Rainey who has graduated from Inside OSHA to heading up the team at Politico’s Morning Shift. Rebecca’s replacement at Inside OSHA, Ariana Figueroa, and, of course the Bloomberg labor/OSHA team: Josh Eidelson, Sam Pearson, Bruce Rolfson, Peter Waldman.And while they’re not exactly journalists, this is probably a good place to recognize those academics and public interest people (some of whom are former colleagues) who are continuing the battle for worker justice by providing the research and perspective that go into many of the above pieces. My old OSHA colleagues David Michaels, now at George Washington University and Debbie Berkowitz, now working at the National Employment Law Project, both of whom write prolifically in defense of workers’ right to a safe workplace. And, of course, Sharon Block, Executive Director, Labor and Worklife Program at Harvard Law School who writes frequently in OnLabor (along with many colleagues), Shanna Devine at Public CitizenKatie Tracy of the Center for Progressive Reform and former Labor Deputy Secretary, rising pundit and my favorite Twitter contributor Chris Lu.

    And finally, while it’s not exactly great journalism, my appearance on MSNBC last January marked the longest cable television coverage of OSHA issues all year.

  10. The Bottomless Swamp: This year happily saw the resignation of two of the Trump administration’s leading swamp monsters: Scott Pruitt and Ryan Zinke — as well as the resignation and firing of a record number of other high administration officials either because they could no longer look themselves in the mirror in the morning, or because Trump tired of whatever residual residue of integrity they had left. Are things better now. Not so’s you’d notice. 

    As New York Times reporter Eric Lipton tweeted, “As of Thursday, DOD will be run by a former senior Boeing executive. EPA is run by a former coal lobbyist. HHS is run by a former pharmaceutical lobbyist. And Interior will be run by a former oil-industry lobbyist. Welcome to 2019.”  Meanwhile, even the Mr. Clean of the Trump Administration, Labor Secretary Alex Acosta had a bit of a bumpy road in 2018 as the Miami Herald detailed how he gave Palm Beach multimillionaire sex abuser Jeffrey Epstein a legal break when Acosta was Miami’s top federal prosecutor. What will this mean for the comparatively moderate Acosta? Who knows? But even if he survives as Labor Secretary, his chance of ever seeing a coveted federal judicial appointment seems all but vanished.  Oh well, we could have worse Labor Secretaries.

This article was originally published at Confined Space on January 3, 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).

New Bill Seeks to Protect Health Care and Social Service Workers from Workplace Violence

Monday, November 19th, 2018

Workplace violence is a serious and growing problem for health care and social service workers. Nurses, emergency room doctors, social workers, psychiatric facility aides, and other health care and social service workers frequently face violence that leads to serious, life-altering injuries, loss of productivity and death. In 2016, working people petitioned the Occupational Safety and Health Administration for a workplace violence standard and, in 2017, OSHA granted that petition; yet there has been no action by the Trump administration to develop a national standard to protect workers from violence.

Some key facts about workplace violence:

  • It is responsible for more than 850 worker deaths and 28,000 serious injuries each year and is on the rise.
  • One of every six workplace deaths each year are from workplace violence.
  • It is now the second leading cause of death on the job.
  • Health care and social service workers are at greatest risk: They are nearly five times more likely than other workers to suffer a workplace violence injury.
  • Last year, workplace homicides doubled for health care and social service workers.
  • Two of every three workplace violence events are suffered by women.
  • Workplace violence is foreseeable and preventable.

Today, Reps. Joe Courtney (Conn.) and Bobby Scott (Va.) introduced legislation aimed at protecting health care and social service workers from workplace violence. In a letter supporting the legislation, Courtney said:

To address these rising rates of violence, I am introducing the Workplace Violence Prevention for Health Care and Social Service Workers Act. This legislation will require the Occupational Health and Safety Administration (OSHA) to issue a workplace violence prevention standard requiring employers in the health care and social service sectors to develop and implement a plan to protect their employees from workplace violence. These plans will be tailored to the specific workplace and employee population, but may include training on de-escalation techniques, personal alarm devices, surveillance and monitoring systems, or other strategies identified by the employers and employees to keep workers safe. While OSHA has already issued voluntary guidance to employers on how to prevent violence in these workplaces, data from [the Bureau of Labor Statistics] as well as personal testimony from workers about continuing violence shows that voluntary guidance is not sufficient. An enforceable standard is required to prevent the types of violence that are prevalent in too many of our hospitals, nursing homes and social service settings.

This blog was originally published by the AFL-CIO on November 19, 2018. Reprinted with permission. 

About the Author: Kenneth Quinnell is a long-time blogger, campaign staffer and political activist. Before joining the AFL-CIO in 2012, he worked as labor reporter for the blog Crooks and Liars

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).

“Complacency Killed My Brother!”

Wednesday, October 24th, 2018

A couple of months ago, I wrote a post about how “freak accidents” are neither “freak,” nor “accidental.” As I explained then:

First, the phrase implies that this type of incident hardly ever happens and there is, therefore, not much you can do about it. In fact, the phrase “freak accident” is a double-whammy. Not only does the word “freak” imply “rare,” but the word “accident,” defined as “an unfortunate incident that happens unexpectedly and unintentionally, typically resulting in damage or injury,” implies that the event was unexpected.

One of the examples of an fatality that was labeled a “freak accident” was the tragic death of Marty Dale Whitmire in Greenville, South Carolina, in April 2017.  Whitmire was working on a paving operation when his truck clipped a live power line, which fell on him — a tragic, far-too-common — and completely preventable — cause of worker death.

Yesterday, Marty Whitmire’s nephew, Melvin Whitmire, posted a comment on that post which I am reprinting below to give it more attention. I defy you to read it without boiling over, and crying at the same time:

Thank you so much for your article about the “freak” “”accident”” in Greenville SC involving the electrocution that occurred on a paving job site.

April 11, 2017 is a day my family and I will NEVER forget. Marty was my like a brother to me. He was actually my Uncle (my fathers baby brother) but because he was only 8 years older than me we were very close when I was a child and as I became an adult we grew to be best friends. He used to tell everyone that he and I were brothers.

Marty worked on my crew as a Pipefitter for 4+\- years and the company we were working for layed him off in November of 2016. That’s when he took the job at King Asphalt to keep busy until the layoff ended. He wasn’t experienced and he was a flag man for the first 4 months he worked there. Towards the end of March 2017 he was “promoted” to the job the position that he was working when he was tragically killed, not accidentally either. This happened in my opinion (I have 22 years in Industrial Pipefitting an OSHA 30, and experience as Site Specific Safety Officer on a Federal Jobsite) due to Marty’s absence of proper training on the machine and lack of training for the foreman in the job. The power lines were  lower than required  by national code, the pole was not up to national codes, the spotter was out that day and no one filled his position and SCDOT inspector  was sitting in his truck onsite because the road being paved was a State Road. The road has more overhead lines crossing the road than the average road in that particular area that the incident occurred, and no one notified the power company about safeguarding the power lines before work began. COMPLACENCY killed my “brother”!!!! This could have been avoided if either the paving or power company or SCDOT would  have fulfilled their obligations to provide a safe place to work.

Another piece of information not reported was…….
The foreman on the paving crew was Marty’s son. My cousin watched his Daddy as he was being electrocuted for 20+\- minutes until the power company arrived to shutdown the 7200 volt line that lay across Marty’s body. The power never tripped a fuse or transformer. It stayed live until the power company got onsite. NOT A ACCIDENT. A FAILURE TO PREVENT this from happening is what is so “FREAKY” and unbelievable.

Moral of the story: Most workplace “accidents” are not accidents; nor are they “freak.”  Most workplace fatalities are preventable. There is plenty of information out there if employers don’t understand how to make their workplaces safe. Melvin is right: it wasn’t an act of God or “just one of those things” that killed his brother; it was the employer’s complacency and violation of safety standards and the law.

Finally, every worker killed in the workplace is a tragedy and a loss that brothers, sisters, nieces, nephews, friends, co-workers, spouses, children and parents can never fully recover from.

This blog was originally published at Confined Space on October 23, 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's SeaWorld dissent shows he wants to drag workers back a century

Tuesday, September 25th, 2018

During his years as a judge on the D.C. Circuit court, Brett Kavanaugh has dedicated a solid amount of time to writing extremist dissents to show us just what kind of a deciding vote he would be on the Supreme Court. One of those is his notorious SeaWorld v. Perez dissent, in which Kavanaugh said SeaWorld shouldn’t be held responsible for the killing of a trainer by an orca. Steven Greenhouse writes that the dissent is “remarkable because Kavanaugh shows far less sympathy to the whale trainer who was dismembered and killed than he shows to SeaWorld for being the victim of what he sees as government overregulation and overreach,” and that he “seemed to lack an empathy gene.”

It’s not just a lack of empathy, though. Kavanaugh’s dissent, Greenhouse suggests, is either profoundly ignorant of history or is an active attempt to undo historical progress:

He said that state tort law—for instance, lawsuits that workers bring against their employer because a machine chopped off an arm—would pressure SeaWorld to assure safety to its workers. But Kavanaugh bafflingly fails to realize that the workers compensation system was set up in the early 1900s in large part to prohibit workers from filing tort lawsuits against their employers. Moreover, state tort law compensates employees only after an arm is amputated or a worker is crippled, while government regulation in the form of OSHA aims to prevent such horrific injuries from ever happening.

In likening Dawn Brancheau to NFL players and NASCAR drivers, Kavanaugh essentially embraced a pro-corporate legal doctrine that was prevalent in the 19th century—that workers assume the risks inherent in a dangerous job. In other words, if Brancheau got killed or injured, well, tough luck. It’s on them. David Michaels, the head of OSHA under President Obama, criticized Kavanaugh for making “the perverse and erroneous assertion that the law allows SeaWorld trainers to willingly accept the risk of violent death as part of their job.” 

Is Kavanaugh that ignorant of history or is he fully aware of the brutal past of American workplaces, and knowingly trying to drag us back to that brutality? Given the totality of what we know about him, the latter seems the safe bet.

This blog was originally published at Daily Kos on September 24, 2018. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at Daily Kos.

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