Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘workplace safety’

Soaring summer temperatures mean danger for farm workers

Tuesday, July 9th, 2019

Summer means high temperatures … and, for farmworkers, hard work in hot fields. We’re talking fields where, without proper precautions, workers die from the heat. The United Farm Workers is trying to keep that from happening, though in some states they have better options than others.

California, where so much of the nation’s produce is grown, has laws protecting workers—requiring that they get proper shade and access to “fresh, pure, and suitably cool” drinking water—but enforcement is a problem, and workers have kept dying despite the laws. The UFW is working to make sure that California workers know their rights and that the state finds out when employers don’t give their workers the shade and water they need to stay safe, as required by the law.

No matter what, it’s brutal work: The UFW Facebook page is filled with pictures of workers in 100 degree temperatures. We need a federal standard, and UFW is pushing for one, but the Trump administration and Republican-controlled Senate being what they are, more states need laws like California’s to protect farm workers—workers in southeastern states like North Carolina and Georgia, for instance, face heat risks. And in the states where those laws exist, everyone should be an ally to help ensure that farms follow the rules.

This blog was originally published at Daily Kos on July 6, 2019. Reprinted with permission.

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

Number of workplace safety inspectors fall under Trump

Tuesday, June 18th, 2019

Rebecca RaineyDespite assurances from Labor Secretary Alexander Acosta that he will boost the number of OSHA compliance officers this fiscal year, new data shows the number of inspectors has declined.

According to statistics that POLITICO obtained through the Freedom of Information Act, the number of compliance safety and health officers tasked with conducting workplace inspections at the agency had fallen in April to 870. That’s down from the 875 safety inspectors that OSHA reported in January (in response to a FOIA request from the left-leaning National Employment Law Project).

In addition, data provided to POLITICO from OSHA reveals that since January the agency has lost two area directors responsible for training and supervising safety and health inspectors.

During the same month that OSHA recorded the 7-person decline, Acosta testified before a House appropriations panel that OSHA “expects to have a significant increase in inspectors in FY 2019.” The fiscal year runs from Oct 1 through September 30.

At that April hearing, Acosta noted that OSHA hired 76 new inspectors in FY 2018.

“These numbers are stunning,” said Debbie Berkowitz, a former OSHA policy adviser now with NELP. “The agency now has the lowest number of inspectors in its entire history—it will now take over 160 years for the agency to inspect every workplace under its jurisdiction just once. This does not bode well for workers.”

The number of OSHA inspectors fluctuated throughout the Obama administration, rising to 1,059 inspectors from 2009 to 2011, then declining to 943 from 2011 to 2015, then rising again in 2016 to 952 inspectors.

Democrats and safety advocates blame the decline under Trump on retirements and on the federal hiring freeze ordered in early 2017

“This is a sign of erosion in OSHA’s ability to inspect workplaces,” Peg Seminario, director of health and safety at the AFL-CIO, told POLITICO. “Acosta has committed to strong enforcement, but their ability to do so is being hobbled and crippled by losing experienced staff.”

In total, OSHA’s compliance safety and health officers reached 949 in April, but that figure also includes 79 area directors, who do not conduct workplace inspections. According to January numbers obtained by advocates, the agency had 81 area directors on board at the time.

The Labor Department’s budget request for OSHA for fiscal year 2020 included more than $3.7 million to hire 30 additional compliance officers

Asked to comment on the decline in safety inspectors, a DOL spokesperson said that OSHA “has taken several steps to increase its federal enforcement staffing levels.” In 2017, the spokesperson said, Acosta granted OSHA approval to fill all its funded inspector positions.

“OSHA has also begun recruiting for a larger number of positions than available vacancies,” the spokesperson said, “to ensure there is a continuous pool of [compliance safety health officer] applicants for selection when future vacancies occur.”

Despite the decline in inspectors, the number of OSHA inspections rose in fiscal years 2017 and 2018 to above 32,000. But a March NELP report said that in both fiscal years the agency cut back on the number of more complex, resource-intensive, and “high-impact” safety and health inspections.

In making this calculation, NELP used the same metric created by OSHA under President Barack Obama. In 2016, OSHA stopped measuring its performance by the number of total inspections and instead started counting by weighted “enforcement units” to better assess the quantity of enforcement activity. Then-OSHA chief David Michaels concluded that a raw inspection count was misleading because one-day inspections were equated with more complicated five-month inspections.

According to NELP’s March report, in FY 2018 OSHA enforcement dropped by 352 enforcement units, to 41,478.

This article was originally published at Politico on June 17, 2019. Reprinted with permission.

About the Author: Rebecca Rainey is an employment and immigration reporter with POLITICO Pro and the author of the Morning Shift newsletter.

Prior to joining POLITICO in August 2018, Rainey covered the Occupational Safety and Health administration and regulatory reform on Capitol Hill. Her work has been published by The Washington Post and the Associated Press, among other outlets.

Rainey holds a bachelor’s degree from the Philip Merrill College of Journalism at the University of Maryland.

She was born and raised on the eastern shore of Maryland and grew up 30 minutes from the beach. She loves to camp, hike and be by the water whenever she can.

Governor Murphy Signs ‘Panic Button’ Bill to Protect Hotel Workers from Assaults, Harassment

Thursday, June 13th, 2019

Hundreds of hotel workers, union leaders and elected officials gathered at Harrah’s Resort in Atlantic City today to witness the signing of a bill requiring hotels to equip certain employees with “panic buttons” for their protection against inappropriate conduct by guests.

“We must protect the safety of workers in the hospitality industry,” Gov. Phil Murphy (D) said. “I am proud to sign panic button legislation that Bob [McDevitt] and the working men and women of UNITE HERE, Assemblymen Vince Mazzeo and John Armato, Charlie [Wowkanech] and Laurel [Brennan], Senator Loretta Weinberg and so many others have fought for to give hotel workers greater security and the ability to immediately call for help should they need it on the job.”

The portable safety device, known as a panic button, will allow hotel workers to alert security personnel if they feel they are in danger or a compromising position while performing housekeeping duties. Today’s signing makes New Jersey the first in the nation to have a statewide law requiring hotels to provide their employees with such devices.

Hotels that do not comply can be fined up to $5,000 for the first violation and $10,000 for each additional violation, according to the legislation.

“The safety of women in the hospitality industry has been overlooked,” said Bob McDevitt, president of UNITE HERE Local 54. “I’m proud that my state is the first to pass and sign into law real protections for housekeepers in the hotel industry.”

The harassment of hotel workers, especially housekeepers, has been a longstanding issue the hotel industry has struggled to address. Unite Here Local 54, a union representing nearly one-third of casino and hospitality workers in Atlantic City, was a driving force behind this legislation, which will provide an additional measure of security for thousands of hotel workers across the state.

“Whenever I go into a room, I wonder what is going to happen,” said Miriam Ramos, a housekeeper at Bally’s in Atlantic City. “Most guests are nice and respectful, but every housekeeper has either been sexually assaulted or harassed doing her job, or knows someone who has.”

“I’m glad that the legislature and the governor are making it safer for us,” Ramos said.

Assemblyman John Armato (D-2) introduced the “panic button” bill in the General Assembly in September. Assemblyman Vince Mazzeo (D-2) also sponsored the bill. Sens. Loretta Weinberg (D-37) and Linda Greenstein (D-14) proposed it in the Senate.

“The New Jersey State AFL-CIO thanks the sponsors of the panic button bill for recognizing that hotel workers deserve to feel safe while on the job,” said Charles Wowkanech, president of the state federation. “We are proud to have lobbied on behalf of this important legislation, which will no doubt help create a safer working environment for all of New Jersey’s hotel workers.”

This blog was originally published at AFL-CIO on June 12, 2019. Reprinted with permission.

About the Author: Michael Gillis is a writer at AFL-CIO.

Workplace safety enforcement plummets under Trump ... but fatality investigations rise

Thursday, March 14th, 2019

The Occupational Safety and Health Administration did not have enough workplace safety inspectors before Donald Trump arrived on the scene, and as with just about everything else, it’s gotten worse in Trump’s two-plus years in office. The number of inspectors has fallen to a record low in the history of the agency, and a new analysis by the National Employment Law Project shows how bad things have gotten: The number of complicated and high-penalty investigations OSHA does has fallen—but at the same time, fatality investigations have risen.

The Trump administration’s story is that total investigations have risen. But that’s not helpful if what’s happening is that inspectors are being pushed to take on quick and easy cases rather than digging into the complicated or difficult ones. That’s just what’s happening, NELP’s Debbie Berkowitz, herself a former OSHA official, writes. “For example, when inspectors go onto a construction site, they can inspect multiple subcontractors all at once, but count each one as a separate inspection. They can get through these sites in a few hours, and count four to five inspections.” At the same time, inspections of concerns like musculoskeletal hazards, worker exposure to dangerous chemicals, explosion risks, and heat exposure have all dropped dramatically.

OSHA is failing to conduct inspections of workplaces that have reported amputations—imagine that you lose a body part on the job and the government doesn’t even come to check out if your boss is running a safe shop. In at least two cases, poultry plants haven’t been inspected even after reporting two amputations or injuries requiring hospitalization in the course of just a few months.

But the big red flag is this: In 2017 there were 837 workplaces inspected because of a work-related death or a catastrophe of more than three workers hospitalized. In 2018, the number rose to 929. The Trump administration is letting workplace safety inspector jobs go empty, it’s focusing on hasty inspections while the number of complicated investigations of serious risks drops, it’s failing to investigate amputations … but the serious thing that is rising is fatality investigations. That is very scary news for America’s workers.

This blog was originally published at Daily Kos on March 14, 2019. Reprinted with permission. 

About the Author: Laura Clawson is labor editor at DailyKos.

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).

Amazon employees across Europe protest ‘inhuman’ working conditions

Monday, November 26th, 2018

Amazon warehouse workers in several European countries took to the streets in protest this week over what they called “inhuman” working conditions.

In the U.K., Germany, Italy, and Spain, workers walked the streets holding signs reading “Treated like a robot at Amazon” and “We are not robots.” According to The Washington Post, some walked off the job, intentionally timing their protest for Black Friday, the busiest day of the shopping year.

“The conditions our members at Amazon are working under are frankly inhuman,” Tim Roache, general secretary of the GMB trade union in the U.K., said in a statement Wednesday.

“They are breaking bones, being knocked unconscious and being taken away in ambulances. We’re standing up and saying enough is enough, these are people making Amazon its money. People with kids, homes, bills to pay — they’re not robots.”

In May, a GMB Freedom of Information request revealed ambulances had been called to one Amazon warehouse in the town of Rugeley, England at least 115 times in a span of three years, according to The Guardian. Three of those calls were for maternity or pregnancy-related problems, and three were for “major trauma,” the outlet noted.

In total, GMB found ambulances had been called out to Amazon’s U.K. warehouses a total of 600 times in three years.

“Hundreds of ambulance call-outs, pregnant women telling us they are forced to stand for 10 hours a day, pick, stow, stretch and bend, pull heavy carts and walk miles — even miscarriages and pregnancy issues at work. None of these things happen in a safe, happy working environments,” GMB national officer Mick Rix told The Guardian.

Amazon officials say the the allegation fail to present  “an accurate portrayal of activities in our buildings.”

At the company’s San Fernando logistics center in Madrid, Spain, workers held their fourth major protest to demand better working conditions and increased pay, chanting, “We will not accept discounts to our rights.”

“This is our biggest pressure [action] to date,” Marc Blanes, a trade labor union official for CGT, told Spanish newspaper El Diario.

Amazon issued a statement in response to that protest, claiming, “Most of the employees on the morning shift today in the Amazon logistics center in San Fernando de Henares are working and processing customer orders.”

According to those leading the strike, however, at least 90 percent of the workers at the San Fernando facility had joined the protest. Only two people were left working the loading bay, Douglas Harper of the CCOO trade union confederation told the Associated Press.

“It is one of the days that Amazon has most sales, and these are days when we can hurt more and make ourselves be heard because the company has not listened to us and does not want to reach any agreement,” 38-year-old employee Eduardo Hernandez, who joined the strike, told AP reporters.

Workers at distribution centers in Rheinberg and Bad Hersfeld, Germany also staged protests Friday, demanding higher pay, the latest demonstration in a years-long trade union effort.

“We have a worldwide problem, a boss who wants to impose American working conditions on the world,” Frank Bsirske, head of the Verdi union representing Amazon workers, told The Local in Denmark. “It’s like going back to the 19th century.”

Workers gathered in front of the German publishing group Axel Springer, parent company of Business Insider, where Amazon CEO Jeff Bezos was set to receive a business innovation award this week, carrying signs that read “Make Bezos pay.”

Amazon employees from Italy, France, and Poland also joined the demonstration.

The Local noted Amazon, which has around 560,000 employees, reported a profit of around $3 billion last year alone.

The National Retail Federation expects more than 164 million people to shop between Black Friday and Cyber Monday, approximately the same number as in 2017. E-commerce sales, however, are expected to jump 15 percent this holiday season, as consumers ditch brick and mortar stores for online retail giants like Amazon.

According to Adobe, as of 10 a.m. Eastern Time on Black Friday, online spending had skyrocketed nearly 30 percent over last year’s totals. NPR reported online spending was set to reach $6.4 billion by the end of the day, with an additional $3.7 billion from Thanksgiving Day, one day prior.

Target and Walmart are making moves in response to that trend, to rival Amazon’s Prime two-day delivery incentive. Amazon, however, has not missed a beat, announcing recently that it would give Prime subscribers free same-day deliveryon even more items through the holiday season.

This blog was originally published at ThinkProgress on November 24, 2018. Reprinted with permission. 

About the Author: Melanie Schmitz is an editor at ThinkProgress. She formerly worked at Bustle and Romper.

“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).

Sickened Kingston coal ash workers claim company hid health risks, tampered with air monitors

Thursday, October 18th, 2018

The trial in one of the nation’s worst workplace negligence cases began this week in federal court in Knoxville, Tennessee. The workers assigned to clean up the massive coal ash spill at the Tennessee Valley Authority’s (TVA) Kingston coal-fired power plant are finally getting their day in court.

After the jury was seated, it didn’t take long for witnesses to cast management of the coal ash clean-up in a bad light. A worker for Jacobs Engineering Group Inc., the contractor put in charge of site cleanup, testified that the company was more worried about public perception than worker safety.

A company supervisor told the worker, Robert Muse Jr., to report any other workers who were wearing respiratory gear to clean up the coal ash and that the employees would be dealt with. Jacobs Engineering did not want to give the appearance that the coal ash was something the public should worry about.

Nearly 10 years have passed since 5.4 million cubic yards of coal ash spilled from a retention pond adjacent to the TVA Kingston coal-fired power plant in eastern Tennessee. The spill was the worst coal ash disaster in U.S. history; it occurred in the early morning hours of December 22, 2008, when a retaining wall failed at the huge coal ash retention pond.

The Environmental Protection Agency (EPA) selected the Superfund program in 2009 as the best regulatory vehicle to address the coal ash disaster “due to its comprehensive human health and ecological risk assessment process and its proven ability to actively engage and involve multiple stakeholders in large, complex environmental cleanup projects.”

Home and land owners have already been able to receive compensation for damages from the spill. The TVA finished its major cleanup work of the site at the end of 2014. The federal power agency reported spending more than $1 billion on the cleanup project. It sent 41,000 rail cars of ash to a landfill in Alabama.

The Kingston coal plant, with a generating capacity of almost 1,400 megawatts, is still in operation. The plant burns about 14,000 tons of coal a day, an amount that would fill 140 railroad cars.

But long after the cleanup has finished, impacts from the contamination are still being felt.

Many of the workers were forced to leave their jobs after they got sick during cleanup, not knowing at the time that breathing in the coal ash had made them sick. And nearly a decade after the devastating coal ash spill in Roane County, Tennessee, more than 30 clean-up workers are dead and more than 250 are sick or dying — all from illnesses and diseases reportedly linked in medical studies to the toxins from coal ash.

The workers now are suing Jacobs Engineering, the contractor put in charge of cleanup of the site, alleging the firm lied to them about the dangers of long-term exposure to coal ash, denied them protective gear, and tampered with testing that was designed to keep both the public and the laborers safe.

One of the employees for the company hired to clean up the spill told the court on Wednesday that if he and his fellow workers had known what was in the coal ash, they would have quit their jobs.

The case has consolidated the claims of 70 different workers involved in the cleanup project managed by Jacobs Engineering. The jury trial is taking place in U.S. District Court in Knoxville, about 35 miles northeast of Kingston.

The plaintiffs are seeking damages for “physical injury, pain and suffering, mental anguish, increased risk of disease, fear of disease, medical expenses, medical monitoring, and compensatory damages in any amount or amounts fair to be determined by a jury at trial.”

In its defense, Jacobs Engineering’s attorney is contending that the workers are lying about the steps the company took to cover up the contamination and — even if the workers are not lying — Jacobs Engineering had no duty to protect them.

The Knoxville News Sentinel brought greater public attention to the plight of the workers assigned to cleanup up the toxic waste from the site. The newspaper, which has won awards for its coverage, examined why so many cleanup workers at the site were getting sick and dying. In her coverage of the cleanup, reporter Jamie Satterfield learned that workers weren’t warned of the dangers of the coal ash and were, in fact, told the coal ash was perfectly safe.

The state of Tennessee began its investigation into the treatment of the cleanup workers in early 2017. Satterfiled’s newspaper in July 2017 published its first series of stories on the probe.

During cleanup, Jacobs Engineering placed monitors around the site to monitor the toxicity of the ash. The company said it closely monitored levels of toxic chemicals at the site. It said the levels were never high enough to cause injuries. The site had levels of chemicals below the EPA’s set level of permissible exposure, the company’s lawyers said.

But on Wednesday, Muse, one of the workers at the site, testified about how Jacobs Engineering tampered with the monitors.

The company would order workers to wash coal ash from the stationary monitors and keep the area around them wet, which would lower the toxicity of the test results. Workers also captured secret video of Jacobs Engineering staffers banging out ash from the cartridges of the monitors placed around the site to monitor the toxicity of the ash, the News Sentinel reported.

During the trial, the jury will be asked to decide whether the toxic chemicals at the site were capable of causing the workers to get seriously ill.

“The workers are claiming that they have been harmed,” Sidney Gilreath, a personal injury attorney who has worked on similar cases, told 10News. “And they are sick, there’s no question about that. The question is did the working in the fly ash cause that harm.”

Because many of the plaintiffs have different illnesses, he said it will be more difficult to show Jacobs Engineering is liable for the deaths and illnesses.

The trial is expected to last for several weeks.

This article was originally published at ThinkProgress on October 18, 2018. Reprinted with permission. 

About the Author: Mark Hand is a climate and environment reporter at ThinkProgress.

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).

Kavanaugh Still Doesn’t Get It

Thursday, September 13th, 2018

Good news!

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

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

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

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

Background

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

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

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

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

The tort system is not an alternative to OSHA protections

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

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

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

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

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

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

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

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

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

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

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

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

So what the hell is he talking about?

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

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

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

How is that?

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

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

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

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

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

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

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

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

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

Well, no. Wrong.

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

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

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

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

A Comic Interlude

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

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

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

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

Conclusion: Kavanaugh is a human time machine

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

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

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

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