Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘OSHA’

Acosta Refuses To Commit to Preserving OSHA Recordkeeping Rule

Friday, April 13th, 2018

In a hearing before the Senate Appropriations Committee today, Secretary of Labor Alex Acosta today refused to commit not to rescind OSHA’s electronic recordkeeping rule. The rule, issued in 2016, requires employers to send injury and illness information into OSHA and prohibits employers from retaliating against workers for reporting injuries.

The electronic recordkeeping rule has three major parts, two of which are in effect.

First, it required employers to send in a summary of their injury and illness data (form 300A (Summary of Work-Related Injuries and Illnesses) by December 15. A second submission (including information on Form 300 and Form 301), providing more detail about how workers were injured, was scheduled to be submitted later this year. Finally, the rule prohibits employers from retaliating against workers for reporting injuries or illnesses.  OSHA’s intent when the rule was issued was to public post on its website the individual employer data to ensure that workers and the public were aware of companies’ health and safety record. No confidential or personally identifiable information would be submitted to OSHA or posted publicly.

Over the past year, Trump’s OSHA as announced that it’s working on revising the rule. While it had been assumed that the Trump administration was mostly interested in repealing the requirement to send in the more detailed data, rumors have been circulating that an effort is being made to repeal the entire rule.

Yes or No?

Senator Tammy Baldwin (D-WI) asked Acosta at this morning’s hearing whether Acosta thought it was important for OSHA to have access to accurate injury and illness data in order to target its limited resources to the most dangerous resources.

After agreeing that such data was in fact important, Acosta was asked whether he planned to rescind the rule, yes or no?

Acosta responded that “Yes or no answers are somewhat difficult on this,” but “it is also important to respect he privacy of individuals and employees” and then, without answering Baldwin’s question, proceeded to filibuster the time with a long discussion about the non-existent issue of confidentiality.

In short, “yes or now answers” should not difficult in this case, nor is confidentiality a real issue.

First, the deadline for sending in the summary data on OSHA form 300A has already passed (although a large number of employers failed to comply), and as is evident from the form, there is no private data about any individuals.  The more detailed information was to be sent to OSHA by July 1, 2018, but that date has been delayed indefinitely while OSHA determines how to modify the regulation.

While employers do include Personally Identifiable Information (PII) on their in-house forms 300 and 301, that information was not required to be submitted to OSHA or would have been automatically scrubbed out of the submission. When the regulation was released, the agency announced that:

OSHA has effective safeguards in place to prevent the disclosure of personal or confidential information contained in the recordkeeping forms and submitted to OSHA. OSHA will not collect employee name, employee address, name of physician or other health care professional, or healthcare facility name and address if treatment was given away from the worksite.  All of the case specific narrative information in employer reports will be scrubbed for PII using software that will search for, and de-identify, personally identifiable information before the data are posted.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule because they’re afraid that if OSHA collects injury or illness information about companies’ health and safety record, the companies’ information — not the PII — will eventually be publicly released. And that won’t look good for those companies with poor health and safety records. Transparency is great — unless it hurts your bottom line.

In addition, as Baldwin suggested and Acosta acknowledged, the injury and illness data would be used to enable OSHA to target the most dangerous industries. Now that makes sense. OSHA is a tiny agency able to visit only a very small number of workplaces each year, so it makes sense that those inspections focus on the most high hazard industries, and the most dangerous companies within those high hazard industries.  No one wants to waste OSHA’s time, the taxpayer’s money, or an employer’s time inspecting a company that’s doing everything right. If possible, you want to use the data to get to those companies that are putting workers at risk.

But of course, if you happen to be one of those companies whose putting workers at risk, or a company in a high hazard industry, maybe you’re not so interested in OSHA targeting your industry. Better they waste their time wandering around aimlessly, reducing even further the small chance that you’ll ever be inspected.

So could Acosta have said “No, the rule will not be repealed, although as we have already announced, we’re working on modifying it?”  Yes.

Unless they’re really considering a complete repeal.

OSHA Inspections

Acosta proudly informed the Committee in his opening remarks that “The number of inspections conducted in 2017 increased year over year for the first time in five years despite OSHA’s suspension of enforcement activities to provide more compliance assistance and facilitate the provision of personal protective equipment during the hurricane recovery in areas affected by natural disasters this year.”

And, in fact, the number of inspections did increase by a few hundred in FY 2017.  A good thing? Yes and no.

I have nothing against increasing the number of inspections. Thirty-two thousand inspections is a small number considering the huge number of workplaces under OSHA’s jurisdiction, so the more the better.

But, there are some problems with that. Because how many inspections is not the only question. One must also ask what kind of inspections?  A little background:

Career government employees, and especially OSHA staff, are good soldiers. Give them a numerical goal and if at all possible, they’ll meet it by hook or by crook. So if the Secretary of Labor demands that you increase the number of inspections, even though a hiring freeze has caused critical staffing shortages, you go for the short, easy inspections — usually a lot of short construction inspections. And you spend a lot of time out in the field inspecting at the end of the Fiscal Year, and then stay in the office and do all the paperwork at the beginning of the next Fiscal Year.

During the Obama administration, we decided to do something a bit different. We decided to prioritize the type and quality of inspections over the pure number. Because if you’re focusing on short easy inspection to get some numbers up on the board, you may be neglecting the more complex investigations that may be more significant in the big picture — workplace violence, ergonomics, chemical plant inspections — those that may take a long time but are important to do.   We did this by counting “enforcement units” instead of just the number of inspections, and assigning more “enforcement units” to the more difficult inspections so that inspectors or offices wouldn’t be penalized for taking on the more difficult projects.

So I find Acosta’s emphasis on numbers to be ironic, because the typical Republican criticism of OSHA is that it plays a “gotcha” game — just putting citations up on the board. Which is exactly what this administration seems to be doing.   And I understand it. It certainly plays better in Congress to say you did more inspections than that Democrats.

They are the laws of the land. They need to be enforced. — Alex Acosta

The good news is that Acosta again emphasized the importance of enforcement when asked by Committee Chairman Roy Blunt why the Administration had recommended flat budgets or slight increases for DOL enforcement agencies. Acosta responded that

Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced. The men and women of the Department of Labor need the resources to enforce them  Over time even if budgets remain flat, life gets more expensive. And so we’ve asked for slight increases to continue the efforts that we’ve done this year. Because as I’ve said, enforcement matters.

Hard to argue with those words.

Tipping Over

Finally, as I mentioned the other day, the fireworks over Acosta’s tipping ruleallowing employers to steal servers’ tips evaporated when Congress included a bill prohibiting tip stealing in the FY 2018 budget bill. Acosta had come under withering attack for not including a damaging economic analysis in the proposal that would have estimated how much money servers would have lost.

But the fix passed in March and everyone congratulated each other and patted each other on the back and sang Kumbaya over this great (and rare) example of everyone working together in perfect harmony.

But Acosta couldn’t quite let it go. He needed to “just put it on the record…”

Taking up the Chairman’s offer for a few parting words at the end of the hearing, Acosta reminded everyone that when the original regulation was issued in 2011, the Obama administration also didn’t include an quantitative economic analysis. (Which was not required because the 2011 version did not make any changes in current practice.) He then went to great lengths to explain again how complicated an analysis was and how they could have made some “wildly crazy” assumptions to come up with a number, but that wouldn’t have served the public interest and Obama did the same thing no one got upset, so that’s “indicative of an unfortunate state of affairs that we’re at,” and anyway employers wouldn’t have kept tips anyway because no one would eat there and employees would walk out  but that’s why I’m happy that we all worked together and we had a happy ending.

And to all a good night.

This blog was originally published at Confined Space on April 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).

Corporate America’s Stealth Campaign to Stop Worker and Environmental Protections

Thursday, March 29th, 2018

Admit it. If they could, Trump and most Republicans would like to just get rid of OSHA, EPA the Consumer Product Safety Commission and any other agency — or law — that protects workers, consumers or the environment.

This is all part of Steve Bannon’s goal of “deconstructing the Administrative State” — making sure that corporate America’s quest for ever higher profits and control over our lives is not hindered by any of these damn government agencies that Congress created when the liberals ruled the earth.

But simply repealing the Occupational Safety and Health Act or the Clean Water Act probably wouldn’t play well even in Trump-America where people still like to come home alive at the end of the day and hate the idea of their kids drinking poisoned water.

So what to do, what to do?

How about just making sure the government can’t issue any new protections: the standards and regulations that put teeth into the laws?

The thriving New York Times has described two of their clever strategies that would do just that.

Get Rid of the Science: “Weaponized Transparency”

The Times reports that EPA Administrator Scott Pruitt is proposing to “no longer consider scientific research unless the underlying raw data can be made public for other scientists and industry groups to examine.” Pruitt is doing this in the name of “transparency.” After all, what could be wrong with only allowing science where the raw data is available for other scientists to critique?

Well, here’s the problem.

Opponents and supporters agree that the proposed new policy has its roots in the fossil fuel industry’s opposition to a groundbreaking 1993 Harvard University study that definitively linked polluted air to premature deaths. The “Six Cities” study, widely considered one of the most influential public health examinations ever conducted, tracked thousands of people for nearly two decades and ultimately formed the backbone of federal air pollution regulations.

The problem is that this study used the private medical and occupational histories of more than 22,000 individuals.  And if this private data were made available for public review, EPA “would have to spend hundreds of millions of dollars, according to a federal estimate, to redact private information.”

The bottom line, critics say, is that if the E.P.A. is limited to considering only studies in which the data is publicly available, the agency will have a narrower and incomplete body of research to draw on when considering regulations.

It’s not like no one has ever looked at this data critically. It’s all peer reviewed by other specialists in the field.

It’s “weaponized transparency,” according to Former OSHA head Dr. David Michaels, currently a professor at George Washington University and author of Doubt Is Their Product:  How Industry’s Assault on Science Threatens Your Health.

This is not just an academic debate. Not only would this policy chill scientific study and make it more difficult to protect workers and the environment, it would cost lives — thousands of lives:

Opponents of the proposed E.P.A. policy say the effort all comes back to the fossil fuel industry’s decades-long frustration over the Six Cities study and a related one sponsored by the American Cancer Society. Those studies, which have been independently evaluated and have had their findings confirmed, underpinned the first Clean Air Act regulations on fine particulate matter. Based on the research, the E.P.A. in 1997 estimated the rule would prevent 15,000 premature deaths annually and hundreds of thousands of cases of asthma and bronchitis.

So who’s behind this nefarious, and not so subtle plot? Who else but the Koch brothers, as well as Exxon Mobil, Peabody Energy and the American Chemistry Council.

Oh, and there’s also a bill in Congress that would mandate the same thing: The “Honest and Open New E.P.A. Science Treatment Act,” also known as the “Honest Act.”

Honestly.

Weaponizing the Judiciary

Just in case restricting the data that forms the basis of protective regulations doesn’t work, the Trump administration, Republicans in Congress and corporate American have another card up their sleeve: making sure the courts reject any regulations that manage to slip through.

One area that the Trump administration has seen great success has been in the selection and confirmation of conservative judges who have passed a critical “litmus test.” Usually, when we hear the words judicial “litmus test” it’s related to the debate over abortion.

But according to an article in this morning’s New York Times, the Trump administration is applying another litmus test: reining in what conservatives call “the administrative state” by limiting the discretion that agencies like OSHA or EPA have when they issue complex regulations.

What does that mean? When Congress passes a law like the Occupational Safety and Health Act, they give OSHA the authority to issue specific standards, and the law provides some guidance for the criteria the agency has to follow. For example, OSHA has to ensure that their standards are economically and technologically feasible.  But Congress doesn’t have the time or expertise to issue the specific standards — like those to protect workers against silica exposure, trench collapses or falls. They leave that lengthy and complex work to the agency.

When the new standards are inevitably challenged in court by the affected industries, the business associations argue that the agency didn’t evaluate the science properly, or didn’t ensure feasibility in the affected industries. The judges, who like your local Congresspersons, are not experts in toxicology or risk assessment, have traditionally deferred to the agencies’ expertise: “You’ve got some science here; you’ve got some science there. Congress says that the agencies have the expertise, so we defer to their decision.”

But not for much longer, if Trump and corporate America have their way. He is appointing federal judges who are “devoted to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations.”

Are you scared? If not, you should be:

This approach has shaped what could be one of Mr. Trump’s most enduring legacies, with the potential to dramatically shrink the body of federal regulations and programs that touch almost every aspect of American life — like workplace safety, environmental protection and health care.

If it is successful, the Trump administration could come closer than any Republican White House has to achieving a goal conservatives have longed for since the New Deal: curtailing the reach of a federal government they say has grown far too large and invasive.

According to Senator Richard Blumenthal (D-CT), these ideas have been around for a long time, “but have never been weaponized in the way that Trump is doing now with his judicial nominees.”

This blog was originally published at Confined Space on March 28, 2018. Reprinted with permission. 

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

The Lessons of the Triangle Shirtwaist Fire Are Still Relevant 107 Years Later

Monday, March 26th, 2018

On March 25, 1911, a fire broke out on the top floors of the Triangle Shirtwaist factory. Firefighters arrived at the scene, but their ladders weren’t tall enough to reach the impacted area. Trapped inside because the owners had locked the fire escape exit doors, workers jumped to their deaths. Thirty minutes later, the fire was over, and 146 of the 500 workers—mostly young women—were dead.

Many of us have read about the tragic Triangle fire in school textbooks. But the fire alone wasn’t what made the shirtwaist makers such a focal point for worker safety. In fact, workplace deaths weren’t uncommon at the time. It is estimated that more than 100 workers died every day on the job around 1911.

A week after the fire, Anne Morgan and Alva Belmont hosted a meeting at the Metropolitan Opera House to demand action on fire safety, and people of all backgrounds packed the hall. A few days later, more than 350,000 people participated in a funeral march for those lost at Triangle.

Three months later, responding to pressure from activists, New York’s governor signed a law creating the Factory Investigating Commission, which had unprecedented powers. The commission investigated nearly 2,000 factories in dozens of industries and, with the help of such workers’ rights advocates as Frances Perkins, enacted eight laws covering fire safety, factory inspections, and sanitation and employment rules for women and children. The following year, they pushed for 25 more laws—entirely revamping New York State’s labor protections and creating a state Department of Labor to enforce them. During the Roosevelt administration, Perkins and Robert Wagner (who chaired the commission) helped create the nation’s most sweeping worker protections through the New Deal, including the National Labor Relations Act.

The shirtwaist makers’ story inspired hundreds of activists across the state and the nation to push for fundamental reforms. And while there have been successes along the way, the problems that led to the Triangle fire are still present today. It was just five years ago, for instance, that the Rana Plaza collapse in Bangladesh killed more than 1,100 garment workers.

As worker health and safety continues to be a significant issue both in the United States and abroad, the AFL-CIO took a strong stand at our 2017 Convention, passing a resolution on worker safety:

The right to a safe job is a fundamental worker right and a core union value. Every worker should be able to go to work and return home safely at the end of the day.

Throughout our entire history, through organizing, bargaining, education, legislation and mobilization, working people and their unions have fought for safe and healthful working conditions to protect workers from injury, illnesses and death. We have made real progress, winning strong laws and protections that have made jobs safer and saved workers’ lives.

Over the years, our fight has gotten harder as employers’ opposition to workers’ rights and protections has grown, and attacks on unions have intensified. We haven’t backed down. Most recently, after decades-long struggles, joining with allies we won groundbreaking standards to protect workers from silica, beryllium and coal dust, and stronger protections for workers to report injuries and exercise other safety and health rights.

Now all these hard-won gains are threatened. President Trump and many Republicans in Congress have launched an aggressive assault on worker protections.

The worker protections under assault include:

  • Trump’s proposed fiscal year 2019 budget cuts funding for the Department of Labor by 21%, including a 40% cut in job training for low-income adults, youth, and dislocated workers and the elimination of the Labor Department’s employment program for older workers.
  • The budget also proposes to cut the Occupational Safety and Health Administration budget, eliminate OSHA’s worker training program and cut funding for coal mine enforcement, while proposing a 22% increase for the Office of Labor-Management Standards’ oversight of unions.
  • The budget also proposes to slash the National Institute for Occupational Safety and Health’s job safety research budget by 40%, to move NIOSH to the National Institutes of Health from the Centers for Disease Control and Prevention, and to remove the World Trade Center Health Program from NIOSH’s direction.
  • OSHA delayed the effective date of the final beryllium standard originally issued in January 2017. Then it delayed enforcement of the standard until May 11, 2018. In June 2017, OSHA proposed to weaken the beryllium rule as it applies to the construction and maritime industries.
  • OSHA delayed enforcement of the silica standard in construction, which in December was fully upheld by the U.S. Court of Appeals for the District of Columbia Circuit.
  • OSHA delayed the requirement for employers to electronically report summary injury and illness information to the agency set to go into effect on July 1, 2017, until December 31, 2017. OSHA has announced it intends to issue a proposal to revise or revoke some provisions of the rule.
  • OSHA withdrew its policy that gave nonunion workers the right to have a representative participate in OSHA enforcement inspections on their behalf.
  • The Mine Safety and Health Administration delayed the mine examination rule for metal and nonmetal mines from May 23, 2017, until Oct. 2, 2017, and then again until March 2, 2018. MSHA also proposed weakening changes to the rule, including delaying mine inspections until after work has begun, instead of before work commences.
  • In November 2017, MSHA announced it would revisit the 2014 Coal Dust standard to examine its effectiveness and whether it should be modified to be less burdensome on industry. This comes at the same time NIOSH reported 400 cases of advanced black lung found by three clinics in Kentucky.
  • OSHA withdrew over a dozen rules from the regulatory agenda, including standards on combustible dust, styrene, 1-bromopropane, noise in construction and an update of permissible exposure limits.
  • The agency also suspended work on critical OSHA standards on workplace violence, infectious diseases, process safety management and emergency preparedness.
  • MSHA withdrew rules on civil penalties and refuge alternatives in coal mines from the regulatory agenda and suspended work on new standards on silica and proximity detection systems for mobile mining equipment.

The Triangle Shirtwaist tragedy took place 107 years ago today. We have a long way to go to make sure that we prevent the next such tragedy and keep working people safe and healthy.

OSHA to Employers Who Violate the Recordkeeping Rule: No Problem!

Monday, March 12th, 2018

Fewer than half of all employers required to send their injury and illness information into OSHA last year sent in the information. “The Occupational Safety and Health Administration was expecting about 350,000 summaries to be submitted by Dec. 31, the agency numbers provided to Bloomberg Environment March 7 show. Instead, employers required to participate submitted 153,653 reports, OSHA said.”

The so-called electronic recordkeeping regulation, issued under the Obama administration, intended the information to be used by OSHA to help target the most dangerous establishments, and the information would be posted to help employers compare themselves with others in their industry, and to inform workers and the public about employers’ safety records.

Employers with 250 or more employees, as well as worksites with 20 or more employees in high hazard industries, were required to send in their annual summary report — the OSHA Form 300A — by December 15, 2017.

But despite this huge crime wave, and a warning from Tom Galassi, OSHA’s director of enforcement, that “Those employers that were required to submit records and failed to so do may be subject to citation,” it seems likely that most employers who failed to comply with the law will receive no more than a slap — or maybe a slight caress — on the wrist. According to a memo sent to the field, employers are only subject to enforcement if OSHA begins an inspection before June 15 — six months after the December 15 due date for the submissions. If an employer is found not to have submitted the information — but gives it to the inspectors when they arrive — the employer will receive an “other than serious” citation, but no penalty.

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is. 

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is.

The memo also states that if the employer did not submit the 2016 data, but has already submitted the 2017 data, again, no penalty. The only way an employer can earn a penalty is if they refuse to give the inspector any data. The maximum penalty is $12,934, although it is highly unlikely it would reach that level. If the employer can show that the information was not sent due to technical difficulties, no citation would be assessed.

Former OSHA head Dr. David Michaels who issued the original regulation, said in an interview with Bloomberg, “OSHA is making a serious mistake. By not making meaningful efforts to enforce this legal requirement, OSHA is encouraging law-breaking employers, most likely those with the highest injury rates, to ignore OSHA’s regulation.”

Indeed. One wonders why even have a regulation if there is no penalty for ignoring it. The Trump administration and its business overlords have expressed their displeasure with the regulation, especially OSHA’s original intention to post the information, and is considering rolling back the next phase which would require more detailed information to be sent to OSHA.

Industry attorneys speculate that the reason so many employers are not complying is because they’re confused about whether they’re covered, or they thought OSHA would postpone the requirement again (after several previous postponements), or that they feared sending in information would increase their chances of getting inspected (which it would, if they have a poor record.)

Or maybe they just thought that this law-and-order administration doesn’t really take enforcing the law seriously.

The 2017 data is due to OSHA by July 1, 2018.

But then again, who cares?

This blog was originally published at Confined Space on March 9, 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).

Trump’s Worker Safety & Health Budget Again Undermines Worker Safety & Health

Friday, February 16th, 2018

Earlier this week, President Trump submitted his Fiscal Year 2019 budget proposal. This is his second budget proposal, and like the first, although it left OSHA’s budget fairly flat, it once again proposes to slash or eliminate important safety and health programs and agencies.  And this is Trump’s second OSHA budget that has been proposed with no Assistant Secretary yet in residence.  Scott Mugno’s nomination continues to languish in the Senate.

First, the good news. With one major exception (see below), OSHA’s budget would remain mostly level– with a small $5.1 million (2.4% and 42 full time employees) increase over FY 2017 in the enforcement budget, as well as a small $3 million (4.2%) increase in compliance assistance — mostly to add Compliance Assistance Specialists who had been cut in previous years due to budget limitations, and an addition of eight staff to work exclusively on the Voluntary Protection Programs.

Meanwhile, in addition to trying once again to eliminate the Susan Harwood Training Grant Program and the Chemical Safety Board, the administration’s proposal also eliminates two OSHA Advisory Committees dealing with whistleblower protections and federal employee safety and health.

Harwood and the Chemical Safety Board: Deja Vu All Over Again

In what can only be characterized as the triumph of hope over experience, the Trump administration has yet again proposed the elimination of OSHA’s Susan Harwood Worker Training Program and the independent Chemical Safety Board — two proposals that had about as much lift as a Butterball Turkey when the administration floated these ideas in its FY 2018 budget.

Now this budget is not necessarily bad news for us bloggers. I mean, I don’t have to write any new stories about how terrible the elimination of the Susan Harwood Worker Training Program would be for the safety of workers — especially vulnerable workers like the mostly immigrant day-laborers who have been rebuilding Houston after Hurricane Harvey.

And I don’t have to write much new about how pointless the elimination of the Chemical Safety Board would be for chemical plant safety — and the safety of workers at the plants and communities surrounding the plants.

Because you, good readers, already know all of that. But perhaps more important, Congress already knows that. Certainly both the House and the Senate understand the importance of the Chemical Safety Board as they displayed when the relevant Appropriations bills in both houses voted to keep the CSB fully funded in the 2018 budget after the Trump administration recommended its elimination.

Similarly, after being sentenced to death in the Trump administration’s 2018 budget proposal (and in the House of Representatives’ Labor appropriations bill), the Senate Appropriations committee voted on a bipartisan basis to ignore the Administration’s proposal (and the House bill) and maintain the program.

CSB and Harwood: There’s no education from the second kick of a mule.

But these guys aren’t only irresponsible and just plain wrong; they’re also lazy. You’d think that after failing last year to eliminate these programs, they’d at least come up with some new and improved justifications. But no. As in 2018, the 2019 budget erroneously justifies the elimination of the Harwood program on an alleged lack of “evidence that the program is effective.” And they again incorrectly justify the CSB’s elimination on the the ‘relative duplicative nature of its work,” presumably assuming that the CSB duplicates the efforts of OSHA and the Environmental Protection Agency.

The CSB, however, is not discouraged. Being an independent agency, they submitted their own $12.1 million budget request to keep the agency open. The board is currently conducting nine open investigations: Red Mountain Operating, Arkema Inc., Didion Milling Inc., Midland Resource Recovery, Loy Lange Box Co., Packaging Corporation of America, Sunoco Logistics Partners LP, Enterprise Products Partners LP and DuPont.

I’m not going to waste scarce electrons or your valuable time explaining again why these justifications are — to put it mildly — bogus. If you want to re-read what I wrote last here about these proposals, you can start here.  (Here is much more on the importance of the Chemical Safety Board and the Harwood Grants.) And I’m sure we’ll be writing more about the importance of these programs in the near future.

There’s a saying that there’s no education from the second kick of a mule.  With a little lobbying and common sense, we can only hope that the Trump administration will get to witness that phenomenon with its 2019 workplace safety and health budget.

Compliance Assistance and OSHA’s Voluntary Protection Program

OSHA’s federal compliance assistance budget is slated for a 4.2% increase which will include 8 employees fully dedicated to the Voluntary Protection Program and 24 Compliance Assistance Specialists (CAS).  OSHA once had a CAS in every one of its 70 Area Offices, but budget cuts and the hiring freeze had cut those numbers significantly.

VPP, established in 1982 to recognize workplaces with exemplary safety and health management systems, has always been a favorite program of Republican administrations. As we’ve discussed, however, the program has faced significant integrity and funding issues over the past several years. Trump’s OSHA has held two stakeholder meetings to discuss problems with the program and although the outcome of those meetings have never been released by OSHA, the agency is doubling down on VPP growth. According to OSHA’s Congressional Budget Justification,  “with the addition of 24 CAS and 8 VPP staff, OSHA anticipates approving 155 new VPP sites and re-approving 395 sites in FY 2019.”

One notable change in the Trump budget from previous budgets is the total omission of a focus in its compliance assistance program on vulnerable workers, such as day laborers,  temporary workers and workers with limited English proficiency who often work in high hazard industries and are difficult for OSHA to reach. It is a common myth that the Obama administration focused totally on enforcement to the neglect of compliance assistance. The truth is that the Obama administration conducted a major compliance assistance program, but instead of focusing exclusively on assistance for employers, the Obama administration focused compliance assistance resources on helping vulnerable workers. OSHA’s CBJ doesn’t even mention vulnerable workers or working with labor unions in its Compliance Assistance section, focusing exclusively on broadening “its reach, assistance, and support to small businesses and other employers working to comply with OSHA requirements and protect their workers,” as well as working with more “trade associations, organizations, and employers it engages with directly through its cooperative programs.”

OSHA Standards

OSHA’s Budget Justification states that it plans to issue three final rules, including one on beryllium, and four proposed rules. As you may recall, OSHA proposed last June to weaken beryllium protections for maritime and construction workers.  (The schedule for this is a bit unclear as the CBJ also states that “OSHA anticipates that this rulemaking will proceed fairly quickly with a proposal either late 2018 or very early 2019.” Given that OSHA already issued a proposal in June 2017, it’s unclear whether this statement means they’ll issue a new proposal or it’s just a result of  lousy proofreading.)

Other final standards include a minor revision addressing respirator fit-test methods, and a revision of the recordkeeping standard.  OSHA has stated for some time that it doesn’t like parts of the Obama administration’s electronic recordkeeping regulation which requires employers to send injury and illness data to OSHA, and to prohibit retaliation against workers for reporting injuries or illnesses.  Given that no proposal has yet appeared, it’s possible, but unlikely that a final revised rule will be issued before October 1, 2019, the end of FY 2019.

The only small business (SBREFA) review mentioned is one for a cell tower standard. No mention of a SBREFA panel for workplace violence. SBREFA is the first formal step of the regulatory process.

In addition to numerous guidance products, OSHA plans to use its standards funding to throw a bone to its industry friends by conducting “retrospective reviews to revise and update existing standards in ways that will better protect workers and, where possible, reduce burden on employers.” Don’t expect much there. A thorough review of a standard or regulation takes years and generally confirms that the original standard protected workers more effectively, and at a lower cost than OSHA had originally predicted.

NIOSH

As it did last year, the Trump administration proposes to whack NIOSH, continuing to show its disdain for evidence-based practice that is supported by real research.  Trump is again proposing to cut NIOSH job safety research by $135.2 million (40%), and proposes to eliminate educational research centers, agriculture, forestry and fishing research centers and external research programs.

Then it gets weird. Trump is proposing to take NIOSH out of CDC and then possibly combine it at a later date with other parts of the National Institutes of Health.  Section 22 of the Occupational Safety and Health Act established the National Institute for Occupational Safety and Health in the Department of Health and Human Services to “conduct research,experiments, and demonstrations relating to occupational safety and health.”  NIOSH is currently part of the Centers for Disease Control, which is also part of HHS.  How this envisioned reorganization will work with the OSHAct that establishes a separate institute specifically for Occupational Safety and Health remains to be seen. Meanwhile, the World Trade Center Health Program (administered by NIOSH director by law) would remain at CDC.

MSHA

Fifteen coal miners died on the job in 2017, compared with only 8 in 2016, but Trump apparently sees those troubling numbers as a reason to cut coal enforcement by $3 million. the overall budget for the agency will increase by $2 million, with funding for metal/non-metal enforcement increasing by $2.5 million

Advice? We Don’t Need No Stinkin’ Advice

OSHA has several advisory committees comprised of outside experts intended to advise, consult with and make recommendations to OSHA and DOL leadership about how to improve worker safety and health.  The agency currently has five advisory committees:  The National Advisory Committee on Occupational Safety and Health (NACOSH), the Maritime Advisory Committee for Occupational Safety and Health (MACOSH), and the Advisory Committee for Construction Safety and Health (ACCSH), the Federal Advisory Council on Occupational Safety and Health (FACOSH) and the Whistleblower Protections Advisory Committee (WPAC.)   NACOSH and ACCSH were established by law and the others by the Secretary of Labor and the White House.

Trump wants to eliminate two OSHA Advisory Committees and none have met in over a year

The committees are populated with national experts representing labor, management and public agencies who rotate every few years. Advisory committees traditionally meet two or three times a year, but none have met in the first 13 months of this administration.

Trump’s OSHA budget proposes to eliminate two of the agency’s five advisory committees: FACOSH and WPAC.  WPAC is the newest advisory committee and was established in 2012 to help OSHA “improve the fairness, efficiency, effectiveness, and transparency of OSHA’s administration of whistleblower protections.” WPAC was one of the many initiatives undertaken in the Obama administration to improve the operation of OSHA’s troubled Whistleblower Program, including creating a separate directorate and a separate budget item.  Achievements of the committee include the publication of the first-ever Recommended Practices for Employers for Addressing and Preventing Retaliation which assists employers in creating workplaces in which employees can voice their concerns without fear of retaliation.

Federal employees are not covered under the Occupational Safety and Health Act, but were provided protections by Executive Order 12196 which requires each federal agency to “Furnish to employees places and conditions of employment that are free from recognized hazards that are causing or are likely to cause death or serious physical harm.”  Executive Order 11612, issued by Richard Nixon, established FACOSH in order to “advice on how to reduce and keep to a minimum the number of injuries and illnesses in the federal workforce and how to encourage each federal Executive Branch department and agency to establish and maintain effective occupational safety and health programs.” Federal OSHA can cite, but not fine federal agencies and has uncovered and corrected a number of serious safety and health problems in the nation’s military bases, hospitals, prisons, hospitals and other federal facilities.

Elsewhere:

In related news, Trump’s budget

  • Cuts EPA’s budget by 34% so that the agency can eliminate “lower priority programs” and refocus on “core activities.”  Among the “lower priority programs” that the EPA is proposing to eliminate are those that address the only environmental threat that can literally destroy the earth as we know it — climate change.  After all, climate change may be good for us. “Core Activities” that need more funding apparently refer to a swollen security detail for EPA Administrator Scott Pruitt, his high security communications chamber and, of course, his first-class travel to points domestic and foreign.
  • Cuts the Centers for Disease Control and Prevention: In the midst of a flu pandemic and the ever-present threat of Ebola and the emergence of other “new” diseases, Trump is proposing to cut back CDC’s budget by $1 billion.

  • Cuts National Labor Relations Board by $25.2 million (9%)

  • Cuts Employment and Training Services by $1.3 billion (39%)

  • Cuts Unemployment Insurance and Employment Services by $45.4 million (13%)

  • Cuts Job Corp by $40.7 million (24%)

  • Eliminates the Older Worker Program

  • Cuts Office of Federal Contract Compliance Programs (OFCCP) by $13.4 million (13%). OFCCP  ensures that contractors and subcontractors who do business with the federal government comply with the legal requirement to take affirmative action and not discriminate on the basis of race, color, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran.

  • Cuts Labor Department’s International by $67.6 million (79%)

  • Cuts Women’s Bureau by $7.6 million (68%)

  • Proposes $8.5 million (22%) increase for Office of Labor-Management Standards (OLMS) enforcement. OLMS ensures that union elections and finances are conducted legally. Republican administrations traditionally use OLMS to harass unions; hence the increased funding.

What’s Next?

This is the beginning of the FY 2019 budget process. FY 2019 begins on October 1, 2018, but the budget will not be passed by then. No Congress in recent memory has finished a budget by the end of the budget year and that prospect is even less likely in an election year.

The next step in the process will be Secretary Acosta’s testimony before the House and Senate appropriations committees.  There will then be long deliberations in the House and the Senate, and eventually both Houses of Congress and the President will have to come up with a budget that they agree on.  The process is more difficult in the Senate because 60 votes are needed to pass a budget. And as we saw last year, the House budget was much worse than the President’s proposal (although they did vote to maintain the CSB), while the Senate’s OSHA budget was better then the President’s proposal.

And, of course, depending on the outcome of the Congressional elections on November 6, Trump could be facing a Democratic House of Representatives and/or a Democratic Senate, and a Democratic majority in either house of Congress would drastically change the final budget that emerges from this process.

But nothing good in this country happens by itself. It happens because knowledgeable and caring citizens ensure that their Senators and Congressional Representatives understand the importance of these programs in protecting worker safety and health. That’s where you come in. Especially in an election year, it’s important that those running for office understand the daily hazards facing American workers and the role of the OSHA and other government agencies in making sure workers come home safely at the end of the day.  And already, just days after release of the President’s budget, opposition to his proposal to eliminate the CSB has begun.

And there will be more.

This blog was originally published at Confined Space on February 15, 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).

Do Fewer OSHA Inspectors Matter?

Wednesday, January 17th, 2018

One sign that anti-OSHA conservatives are getting nervous about articles (and television appearances) highlighting the declining number of OSHA inspectors are articles questioning whether government plays a useful role in protecting workers. In this case, the Reason Foundation, which “advances a free society by developing, applying, and promoting libertarian principles, including individual liberty, free markets, and the rule of law,” has concluded that reducing the number of OSHA inspectors has no effect on workplace safety.

When I see an article entitled Will Deregulation Kill Workers? by Reason Magazine assistant editor Christian Britschgi, normally I wouldn’t bother to give them any undeserved attention, but some of the arguments he uses are, unfortunately, still commonly used by conservatives in the media and Republicans in Congress, and from time to time we need to expose them.

Based on writings by Bentley University economist John Leeth, Britschgi is basically saying that OSHA isn’t needed because “Employers have much stronger incentives than OSHA to provide a safe workplace.” What are these “stronger incentives” that make OSHA enforcement superfluous?

Workers Compensation: Workers comp, they note, grows more expensive with new injuries and accidents.  And it’s much more significant than OSHA penalties because “workers comp policies cost employers $91.8 billion in 2014…. Total OSHA penalties in that same year totaled only $143.5 million.”

OK, well first, if those numbers are relevant, then that sounds like a great argument to increase OSHA penalties significantly. But the fact is, because State legislatures and courts have undermined workers compensation benefits for injured workers, workers comp covers less and less of the real cost of workplace injuries and illnesses, according numerous studies cited in a 2015 OSHA report, Adding Inequality to Injury:

workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.

Moreover, most workers injured or made ill on the job don’t even receive workers compensation and vulnerable and low-wage workers fare even worse.  Finally, compensating workers for occupational disease is almost non-existent. One study estimates that as many as 97 percent of workers with occupational illness are uncompensated.

Labor markets: Workers would rather work where it’s safe, so they will naturally take jobs working in safer companies rather than unsafe companies. Unsafer companies will therefore be forced to pay workers more to attract them to their unsafe workplaces.  This will provide a natural incentive for employers to make their workplaces safer because if their workplaces are safer, they won’t have to pay workers as much.

Now I’m not a credentialed economist, but even I can find major holes in this theory.  First, such a theory relies on workers having perfect information about which companies are safer than others. Now, this is interesting, because that’s exactly the theory the Obama administration used when issuing its electronic recordkeeping standard. Companies would be required to send their injury and illness information to OSHA and OSHA would post that information, allowing workers to choose safer companies. What’s interesting is that corporate America and Trump’s OSHA has done everything it can to ensure that employer safety records are not made public, from discouraging press releases to opposing the OSHA recordkeepign regulation, claiming that such information unjustly “shames” employers.

The “labor market” theory also assumes that workers would be able to simply and easily move from one (unsafe) employer to another without any loss of income –even assuming there is a safer employer down the street. Obviously that’s often not possible and in any case, that’s easier for high wage workers to lose a little income by changing jobs than lower wage employees who may be living paycheck to paycheck.  And if there are enough desperate workers who need a job, any job, that higher paying, unsafe job isn’t going to pay more for very long.  You’ll have the more common race-to-the-bottom, rather than a race to the top.

Finally, this equation puts workers in a position of choosing between safe jobs or better pay. If you happen to be in a post-Obamacare world with no health insurance and have a sick kid, you might be inclined to take the unsafe, higher paying job.  This is not a choice that we want workers to be forced to make — either from the viewpoint of morality, or the general public welfare. The whole point of the Occupational Safety and Health Act was to eliminate the need for workers to ever have to choose between their jobs and their lives, or better pay and their live.

The ability to sue over workplace injuries and health hazards: Huh? Employees don’t have the ability to sue over workplace injuries. The deal when workers compensation laws were first created is that this would be a “no-fault” system; workers give up the right to sue their employer, in return for relatively certain access to benefits following their injury. (Or at least that was the theory.) Britschgi would have known that (and taken safety and health more seriously) if he had read this article and listened to the accompanying video.

That fact that Britschgi, an assistant editor of Reason Magazine (and presumably his superiors) don’t know that workers can’t sue their employers should have sent this article directly to my Trash folder, so why am I bothering to even address it? I mean, for all I know, he’s 18 years old and this is his first job. Give the kid a break.

Because, as I said above, clearly he is not alone in his ignorance. There are undoubtedly lots of other people out there who think that workers can sue their employers. And easily move to safer jobs. And just rely on workers comp if they get hurt.

The bottom line is that more cops on the beat will make drivers drive more safely, just as more OSHA inspectors will make employers provide safer workplaces. It’s as American as law and order.

This blog was originally published at Confined Space on January 16, 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).

Workers' lives take a back seat under Donald Trump

Wednesday, January 10th, 2018

America’s bad bosses can’t help but get the message from the Trump administration: your workers’ safety is not a priority.

In the months after President Donald Trump took office, the Occupational Safety and Health Administration lost 40 inspectors through attrition and made no new hires to fill the vacancies as of Oct. 2, according to data obtained through a Freedom of Information Act request.

The departing inspectors made up 4 percent of the OSHA’s total federal inspection force, which fell below 1,000 by early October.

In 2015, OSHA only had enough inspectors to inspect workplaces once every 845 years, according to the AFL-CIO’s Death on the Job report, which meant that most workplaces would only see an inspector after something terrible happens. At this rate, even that won’t be a sure thing in a few years.

This blog was originally published at DailyKos on January 8, 2018. Reprinted with permission. 

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

OSHA Is Bleeding: Shrinking Government and Killing Workers

Monday, January 1st, 2018

Washington Post reporters Lisa Rein and Andrew Ba Trim published an excellent front page article today chronicling Donald Trump’s largely successful effort to shrink the federal government: “By the end of September, all Cabinet departments except Homeland Security, Veterans Affairs and Interior had fewer permanent staff than when Trump took office in January — with most shedding many hundreds of employees.”

Trump hasn’t succeeded yet in passing a budget with significant cuts, so most of the reductions have come from hiring freezes, failure to hire political appointees, and increased retirements (accelerated by buy-outs) of disillusioned and frustrated career employees.

While some people who reflexively think that government is bad are cheering, the fact is that these reductions mean less protections for workers, the environment, consumers, communities, children, the poor and just about everything that makes life in this country “great.”

The Impact on OSHA and on Workers

But you’re not reading this to understand the national cataclysm; you want to know about the effects on workers and workplace safety and health.

Anti-government activist Grover Norquist was famously quoted as saying “I don’t want to abolish government. I simply want to reduce it to the size where I can drag it into the bathroom and drown it in the bathtub.”

But tragically, what we’re looking at is not just government being drowned in a bathtub, but more workers actually dying in a bathtub.

Because when it comes to workplace safety, cutting the bureaucracy means undermining enforcement, protection for whistleblowers, support for vulnerable workers and help for small businesses.  Some of OSHA’s regional staff state that because of the hiring freeze, OSHA’s enforcement and whistleblower programs are “falling apart at the seems.” The agency is “just bleeding.”

OSHA’s enforcement and whistleblower programs are “falling apart at the seems.” The agency is “just bleeding.”

When President Trump came into office almost a year ago, he implemented a government-wide hiring freeze. That freeze stayed in place at OSHA until recently, when Secretary of Labor Alex Acosta, apparently alarmed that OSHA inspection number had dropped precipitously in 2017, partially lifted the hiring freeze at OSHA, announcing in his opening remarks at a Senate hearing last month that “In August 2017, I provided OSHA with blanket approval to hire OSHA Compliance Safety and Health Officers (CSHOs), streamlining the hiring process to bring new OSHA staff on board in an expedited manner to ensure that OSHA has the necessary personnel to carry out its important work.”

But while it is true that Acosta lifted the hiring freeze for OSHA inspectors, the process is anything but streamlined from what I hear from OSHA staff. Approvals for CSHO hiring are trickling out at a snail’s pace, barely keeping up with retirements.

Second, the agency doesn’t live by CSHOs alone.

I discussed these problems with Lisa Rein, part of which she related in today’s article:

In some agencies, the number of people leaving has been crippling, according to former officials. At the Occupational Safety and Health Administration, a wave of recent retirements has depleted the managerial staff at the enforcement agency’s 70 field offices, said Jordan Barab, who was a top OSHA official in the Obama administration. In all, the agency shed 119 permanent workers by the end of September, a 6 percent drop, personnel data shows.

“It’s starting to create major problems,” Barab said. Enforcement actions must be reviewed by supervisors in multiple offices, he said, and if too many months pass, they can be thrown out. “You can’t run an enforcement agency with no managers.”

As usual, with interviews, that was only a small part of how I described the impact on OSHA.

OSHA is, first and foremost an enforcement agency. That means that in order to ensure safe workplaces, the agency must have sufficient staff to inspect workplaces to ensure that employers are in compliance with OSHA standards and other safe workplace procedures. And, ideally, the agency should have sufficient, up-to-date standards to provide a floor for workplace safety. The agency also has a robust compliance assistance program which formerly had a Compliance Assistance Specialist (CAS) in every one of OSHA’s 100 regional and area offices. Because of budget cuts over the past several years, however, many OSHA offices no longer have CASs.  OSHA also needs enough whistleblower investigators to ensure that workers are allowed to exercise their health and safety rights without fear of retaliation.

OSHA has never had enough staff to perform all of those functions adequately. The AFL-CIO reports that if OSHA were to inspect every workplace in the nation just once, it would take 159 years. And the situation has gotten significantly worse. Since 1980 when Ronald Reagan was elected, the number of workers in the economy has increased by 50% and the number of OSHA inspectors has shrunk by more than 45%. OSHA had 5.3 compliance officers per million workers in 2016, compared with 14.8 in 1980.

So where are we today and what is the impact of Trump’s efforts to shrink government?

Just hiring inspectors only addresses part of the problem. The hiring freeze continues for OSHA managers, administrative staff, whistleblower investigators and others. And this presents a major problem for workers.

As I said above, OSHA has only 6 months to complete an inspection. One day more, and the gets thrown out. Now, I’m not too worried about OSHA cases being thrown out for running over the deadline. I’m more concerned about the quality, speed and scope of the investigations. Too much work and too little staff will mean a number of things, none of them good:

  • In a quest to keep the inspection numbers up, OSHA inspectors may focus on the “easy” cases. A construction site, for example, will yield more and faster inspections and citations than a workplace violence case, a major chemical release or a case involving musculoskeletal injuries.
  • Just hiring CSHO’s and not filling managerial, administrative or legal staff just moves the bottleneck from the inspection itself, up the ladder.The larger and more complicated a case is, the more levels of OSHA (and Solicitor) review it must go through, and the greater likelihood that it will be challenged in court. If OSHA doesn’t have all of its ducks in a row, the case will be lost and if cases are lost in court because there isn’t enough managerial or legal staff to conduct a thorough review, it’s not just a legal problem, it’s a safety problem. The hazards will not  be eliminated and more workers will get injured, ill or killed.
  • And the failure to hire administrative staff means that instead of inspecting workplaces and managing cases, CSHO’s and supervisors spend their shrinking time inputting data, filing reports and doing all of the other administrative work that would better be done by administrative staff. Not exactly a good use of taxpayer dollars.
  • And even if cases aren’t dropped for failure to meet the 6-month deadline, they will take longer to issue. And being as employers don’t have to fix the problems in their workplaces until the citations are issued, workers will be exposed to dangerous conditions for longer.
  • A shortage of inspectors means that many offices only have time to react to worker fatalities and hospitalizations after they happen, rather than putting resources into pro-active planned (or programmed) inspections of high-hazard workplaces.
  • Retirements don’t happen evenly across the agency. Some area and regional offices are hit much harder than others. But a hiring freeze reduces OSHA’s ability to staff up  in those offices that are having the most shortages.   Either the workers covered by those offices are under-served, or staff has to be temporarily assigned to the problem offices, further increasing the agency’s budget problems.

The Post also notes that the Department of Labor “declined to comment on the current number of OSHA managers but said that new inspectors have been hired in recent months, helping increase the number of safety and health inspections in 2017 — the first such boost in five years.”

This is patently false. OSHA hasn’t had a budget increase since 2010,  and I can’t find anyone inside or outside of OSHA who can tell me what they’re talking about.

Whither The Whistleblower Program?

The hiring freeze also remains for whistleblower investigators. About 60% of OSHA whistleblower cases address retaliation against a worker for exercising their health and safety rights, the other 40% fall under 21 additional whistleblower laws that Congress has given OSHA to enforce — everything from environmental laws, rail safety, nuclear power plants, the Sarbanes-Oxley Act and many others.

Until the Obama administration, the whistleblower program had been neglected stepchild at OSHA — underfunded and ignored. Enormous progress was made over the 8 years of the Obama administration, creating a separate directorate, a separate budget item, making it easier to file complaints on-line, increasing staff, modernizing procedures, re-organizing management and reducing the backlog of open cases. Nevertheless, even with significant progress, the program remains troubled and underfunded, and the continuing hiring freeze threatens much of the progress made during the Obama administration with the backlog of open cases rising back to unacceptable levels.

Agencies on Death Row

The Post also discusses the impact of Trump’s — as yet unsuccessful — plan to eliminate the Chemical Safety Board. The reports of the death of the CSB is most likely premature as both the House nor the Senate budget bills fully fund the agency for FY 18, but the threat nevertheless has an effect. Aside from the obvious hit on the staff’s morale, Board Chair Vanessa Sutherland describes how the CSB’s tiny staff has to spend time planning for its own demise, even while conducting its normal business of investigating chemical plant incidents.  And although it’s not raised in the article, it will inevitably make it harder to attract (or retain) talented staff while the Sword of Damocles weighs over its head.

Conclusion

So, you might ask, how does any of this make sense?

Fourteen workers a day were killed in the workplace last year, and the number of workers killed annually has gone up for the last three years.  Workplace deaths and injuries are estimated to cost between $250 billion and $360 billion a year, and OSHA’s current annual budget is a measly $552 million.

The bottom line is that shrinking government is not just about reducing employees and “bureaucrats,” and saving taxpayer dollars; it means limbs severed and lives lost.

Post journalist Juliet Eilperin in a short article in today’s “2018: The Year in Preview” section predicts that “Trump’s war on the bureaucracy will hit some limits — it’s hard to shrink government and also keep it operating.”

But that doesn’t make me feel better.

Because maybe they don’t want to keep it operating.

This blog was originally published at Confined Space on December 31, 2017. 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). He has also worked for the House Education and Labor Committee, the Chemical Safety Board, the AFL-CIO and an earlier stint at OSHA during the Clinton administration.

OSHA Rejects GAO Poultry Recommendations: Sees No Problem With Workers’ Restroom Access

Tuesday, December 12th, 2017

In a surprising and disappointing apparent rollback of OSHA’s enforcement policy related to poultry inspections, Acting Assistant Secretary Loren Sweatt has rejected recommendations from the Government Accountability Office (GAO) designed to address findings that poultry workers are intimidated about reporting health and safety problems to OSHA, particularly about their inability to get bathroom breaks. The GAO recommended in a report released last week that OSHA “consider off-site interviews or exploring other options to obtain information anonymously,” and that OSHA inspectors make a greater effort to ask poultry workers about the extent to which bathroom access is a problem.

The GAO report is a follow-up to its May 2016 study that found meat and poultry workers have the highest injury rates of any industry, and that even those numbers are underreported.  The current report notes that the meat and poultry industry had the 8th highest number of recent severe injury reports of all industries, although the industry’s self-reported injury and illness statistics declined from 2004 through 2015. Severe injury reports result from a recent OSHA requirement that employers report to OSHA all hospitalizations, amputations and loss of an eye (in addition to fatalities.)

GAO also observed that while OSHA had increased its annual inspections of the meat and poultry industry from 177 in 2005 to 244 in 2016, it’s still a tiny proportion of the 5,282 meat and poultry plants in the United States that employ an estimated 481,000 workers.

The report was conducted at the request of Senators Patty Murray (D-WA) and Robert Casey (D-PA), and Congressman Bobby Scott (D-VA).  In addition interviewing OSHA and USDA staff, the GAO conducted group and individual interviews with meat and poultry workers in six locations in five states: Arkansas, Delaware, Nebraska, North Carolina, and Virginia.

The report comes in the midst of a highly controversial industry effort to increase the line speed in poultry processing plants, a change that would increase musculoskeletal injuries suffered by poultry workers.

Intimidation

The GAO found that although the number of OSHA inspections had increased over the past ten years, OSHA “faces challenges identifying and addressing worker safety concerns because workers may be reluctant to contact OSHA for fear of employer retaliation.” Because OSHA interviews workers in the workplace, and those interviews are conducted in private, the supervisor still knows the identities of interviewed workers. Making the problem worse, according to GAO, “some meat and poultry workers may be less likely to report or seek treatment for injuries and illnesses because of their vulnerable status as undocumented or foreign-born workers and because of their economic vulnerability.”

Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom

Aside from workers being reluctant to report serious safety and health conditions, the problem most overlooked may be their lack of bathroom access. Interviews with workers revealed widespread complaints about supervisors discouraging workers from using the restroom. OSHA guidance issued in 1998 states that denial or delay of bathroom access can result in various serious health effects, such as urinary tract infections, constipation, abdominal pain, and hemorrhoids, and workers interviewed by the GAO also reported that they had suffered health effects like kidney problems from delayed or denied bathroom breaks. Under OSHA’ sanitation standard (CFR 1910.141), employers are required to make toilet facilities available so that employees can use them when they need to do so.

According to GAO:

Workers we interviewed in all five states said their requests to use the bathroom are often delayed or denied, and workers in two states said they fear punishment if they ask to use the bathroom too frequently or complain about lack of bathroom access to their supervisors or to OSHA. One industry representative told us they believe some supervisors in meat and poultry plants deny bathroom access in order to maximize production output.

The problem with enforcing the right of a worker to go to the bathroom, according to the GAO,  is that if workers fear dismissal or other punishment for talking to OSHA about bathroom breaks, OSHA inspectors may not become aware of the problem. Furthermore, OSHA inspectors do not always ask specifically about bathroom access, and workers who experience bathroom access problems may not volunteer this information either because they’re afraid or because they may not realize that such information would be of interest to OSHA.

Common Sense Recommendations:  Rejected

In order to address the intimidation issue, learn more details about hazards, injuries, and illnesses and gather more information about bathroom break problems, the GAO made two recommendations to OSHA: First, that OSHA should “take additional steps to encourage workers to disclose sensitive concerns during OSHA inspections of meat and poultry plants; for example, by considering additional off-site interviews or exploring other options to obtain information anonymously.”

Second, in order to determine whether, and to what extent bathroom access is a problem, OSHA should simply ask workers during meat and poultry plant inspections about whether bathroom access is a problem.

But despite the GAO’s findings, OSHA leadership doesn’t think there is a problem that has to be dealt with, and anyway, it would be too much trouble. A letter from Deputy Assistant Secretary Loren Sweatt accompanying the report states that:

GAO’s recommendation to conduct additional offsite interviews, however, is challenging in terms of witness cooperation, resources and CSHO safety. Moreover each inspection requires a flexible approach to address unique workplace hazards.  OSHA cannot commit to asking about bathroom access during each inspection at a meat or poultry processing facility.

Nothing in these GAO recommendations is particularly new or novel. OSHA’s Field Operations Manual, which sets forth the procedures under which OSHA conducts inspections and enforcement, emphasizes the importance of “a free and open exchange of information between OSHA inspectors and employees” and allows inspectors to conduct interviews off site when they feel that off-site interviews would be more effective.  The problem is that if the workplace doesn’t have a union, or worker advocates that are helping the workers, it can be difficult to find an acceptable time and venue.

Furthermore, an OSHA poultry directive, issued in 2015 and currently under legal challenge, authorizes inspectors to expand inspections beyond other hazards that may be the subject of the inspection — including musculoskeletal injuries and bathroom access —  and some regional OSHA poultry emphasis programs require inspectors to inquire about bathroom access.

In rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. 

Thus, in rejecting these GAO recommendations, OSHA may be signalling a reversal in long-standing OSHA enforcement policy. Deborah Berkowitz of the National Employment Law Project and a former OSHA official in the Obama administration, was quoted in Inside OSHA saying  “We are stunned that OSHA’s response to the glaring findings in this report is to announce a rollback of longstanding enforcement policies, thereby ensuring that the poultry industry will have an easier time hiding serious hazards. The inevitable result will be even more injuries to this already vulnerable worker population. That is simply unacceptable.”

See No Evil, Hear No Evil…

According to GAO, “OSHA officials said they did not believe lack of bathroom access was a widespread problem in the meat and poultry industry” and offered a number of creative explanations:

  • OSHA has not compared bathroom access practices in the meat and poultry industry with other industries involving moving production lines because they vary by establishment even within a single industry. (This, even though OSHA has cited poultry establishments for lack of bathroom access a number of times.)
  • requiring inspectors to investigate bathroom access would divert inspectors’ limited resources from higher-priority hazards and could result in companies’ claiming that the line of questioning is unsubstantiated.
  • there were a small number of citations issued related to bathroom access. (Of course, this is somewhat circular reasoning: The GAO argued that the reason for few citations may be that workers don’t raise the issue unless OSHA inspectors ask about the problem. See no evil, hear no evil…)

And in an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access” and kindly suggested that “given that workers whom we asked about bathroom access during off-site interviews in all five states said that bathroom access is a problem, and worker advocates we interviewed stated it was as well, it is

possible that OSHA is missing instances of this hazard, resulting in incomplete data to guide its inspections.” True, it is possible.

In an understatement one rarely hears from government bureaucrats, GAO stated that “There is a mismatch between concerns we heard from workers and the problems reported by OSHA, particularly in the area of bathroom access.”

But I am less charitable than GAO. I suspect that the real reason for OSHA’s blindness may not just be innocent naïveté, but rather a bit of over-attentiveness to their industry friends who don’t seem overly concerned about the problem. The GAO reported that “Meat and poultry industry representatives we interviewed said that bathroom access is not a problem because companies provide bathroom access when needed.”  And after the report was issued, the National Chicken Council, the National Turkey Federation and the U.S. Poultry & Egg Association said that the poultry industry “is constantly looking at ways to continue to improve” worker safety, and Barry Carpenter, president of the North American Meat Institute explained that “In a tight labor market like the one we have now, there is an even stronger incentive to protect our employees and ensure that they are healthy and able to perform their jobs.”

And just to make sure that OSHA never sees bathroom access as a problem, poultry employers have sharply increased the number of denials of entry to OSHA inspectors — forcing them to get a warrant — as OSHA increased inspections of poultry plants during the Obama administration and began expanding inspections beyond the initial complaint incident to look at things like musculoskeletal injuries and bathroom breaks.  From 2005-2015, there were only 16 denials of entry in the meat and poultry industry, but in just 2016 alone, there were 15 denials, all in Region IV, specifically in Georgia, Alabama, Florida and Mississippi.

Other Issues

Medical Mismanagement: The GAO also confirmed problems that OSHA had previously identified with medical mismanagement of workers suffering from musculoskeletal disorders, including inappropriate medical treatment, lack of worker access to health care, underqualified practitioners, and challenges to reporting. In one case, OSHA reported that a number of workers were fired after suffering MSDs — sometimes on the same day of the MSD occurrence — and in another case a worker made over 90 visits to the nursing station before referral to a physician. GAO talked to workers and worker advocates who reported similar problems. GAO recommended that OSHA revise its medical management guidance and OSHA agreed.

Cooperation With FSIS: A 1994 Memorandum of Understanding between the Department of Agriculture’s Food Safety and Inspection Service (FSIS) and OSHA calls for FSIS inspectors — who are present in most poultry plants —  to make referrals to OSHA when they identify unsafe conditions. FSIA is responsible for ensuring the food safety of meat and poultry products. Despite efforts in recent years and some cross-training of FSIS inspectors, such referrals are rare, partly because FSIS inspectors fear that referrals to OSHA may trigger an OSHA inspection of FSIS due to a number of hazards FSIS inspectors are exposed to. GAO made three recommendations related to these issues to encourage OSHA and FSIS to work more closely together and to address hazards faced by FSIS inspectors from chemicals used to disinfect chickens. FSIA was noncommittal.

Research: Finally, GAO made a recommendation to the National Institute for Occupational Safety and Health (NIOSH) to study safety and health hazards of FSIS inspectors’ exposure to peracetic acid. NIOSH agreed.

What Others Are Saying

I’m not the only one upset about this report and OSHA’s response.

Industry watchdog Nebraska Appleseed, applauded the report quoting a former meatpacking worker in Nebraska: “Meatpacking plants are not only slaughterhouses for pigs, they are also slaughterhouses for humans,” said Lupe Vega-Brown.”They exploit you and after you get injured, they will fire you. Within a few years of working at a plant, it will end your dreams.”

A NELP statement added:

Echoing the finding of its 2016 report, the GAO was particularly critical of how in-plant health units treat injured workers—highlighting new concerns of inappropriate response to worker injuries and illnesses and persons working outside their legal scope of practice. (The 2016 report confirmed that meat and poultry workers continued to face the same hazardous conditions previously cited by the GAO in 2005—including traumatic injuries from machines and tools, exposure to chemicals and pathogens, and fast-paced repetitive tasks associated with musculoskeletal disorders.)

According to an Oxfam statement:

“The health and safety problems that workers face in poultry processing plants have been exacerbated in the past year due to a growing climate of fear and oppression in an industry where workers are mostly immigrants, refugees, and people of color,” said Alex Galimberti, Senior Advocacy and Collaborations Advisor for Oxfam America. “Every day, workers experience problems, such as denial of treatment for repetitive motion injuries, lack of access to bathroom breaks, and sexual harassment. Most of the time, they feel unsafe reporting these issues to federal agencies or to top level management.”

Oxfam issued a report in 2016 about the bathroom break problem in the poultry industry.

The United Food and Commercial Workers union praised the report and tied it into the industry’s recent push to increase line speeds:

“The hard-working people who work in poultry plants have some of the most dangerous and physically demanding jobs in America. This report sadly confirms that many of these skilled professionals who keep our food safe are struggling to keep themselves safe at work. They have earned and deserve better.

“The dangers endured by poultry workers that are highlighted in this report also underscore why a recent request by the National Chicken Council to increase line speeds defies common sense and is being clearly driven by greed. We urge the U.S. Department of Agriculture to take this report seriously and reject that request so that poultry workers and the food we all consume can be kept safe.”

Congressman Bobby Scott and Senator Patty Murray made the following statements:

“When workers face intimidation, retribution, or fear losing their jobs for reporting hazards, seeking medical treatment, or simply using the restroom, it is incumbent on federal agencies to increase their responsiveness to those concerns,” said Congressman Scott (VA-03). “In addition, GAO reported that during 2016, 15 meat and poultry plants –all in the southeast—have refused OSHA access to expand complaint inspections to cover additional recognized hazards; this development has impaired OSHA’s ability to protect workers, and should compel the Department of Labor to vigorously defend its statutory authority to enter plants ‘without delay’.”

“Every worker should be able to make a living without risking their health or safety, so it’s deeply concerning to hear workers in meat and poultry factories are knowingly being put in harm’s way,” said Senator Murray (D-WA). “Given this report’s findings and the Trump Administration’s continued efforts to undermine worker protections, it’s clear our nation’s top health and safety agency needs a leader who has a record of fighting for workers lives and livelihoods—and I will continue to press OSHA nominee Scott Mugno on his commitment to put workers ahead of corporations’ bottom lines.”

This blog was originally published at Confined Space on December 12, 2017. Reprinted with permission. 

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

The Blue-Collar Hellscape of the Startup Industry

Tuesday, December 5th, 2017

On November 13, Marcus Vaughn filed a class-action lawsuit against his former employer. Vaughn, who’d worked in the Fremont, California factory for electric automaker Tesla, alleged that the manufacturing plant had become a “hotbed for racist behavior.” Employees and supervisors, he asserted, had routinely lobbed racial epithets at him and his fellow Black colleagues. 

Vaughn said he complained in writing to the company’s human resources department and CEO Elon Musk, but Tesla neglected to investigate his claims. In true tech executive fashion, Musk deflected Vaughn’s misgivings, shifting the blame to the assailed worker. “In fairness, if someone is a jerk to you, but sincerely apologizes, it is important to be thick-skinned and accept that apology,” he wrote in a May email. In late October, according to Vaughn’s suit, he was fired for “not having a positive attitude.”

The news of rancorous working conditions for Tesla employees is merely the latest in a series. Vaughn’s case signals the broader social and physical perils of couching traditional factory models within the frenzied, breakneck tech-startup framework of high demand, long hours and antipathy toward regulation.

Tesla’s Fremont facility has bred a number of allegations of abuse, from discrimination to physical harm. Vaughn’s is at least the third discrimination suit filed this year by Black Tesla workers alleging racism. A former third-party contracted factory worker, Jorge Ferro, has taken legal action to combat alleged homophobic harassment. The cruelty wasn’t strictly verbal: Not long before, in an ostensibly unrelated but similarly alarming turn of events, reports surfaced that production-floor employees sustained such work-related maladies as loss of muscle strength, fainting and herniated discs.

In response to Ferro’s allegations, Tesla told In These Times that it “takes any and every form of discrimination or harassment extremely seriously.” But the company denied responsibility on the grounds that Ferro was contractor, not an employee.

Tesla’s factory conditions evoke those reported at another Silicon Valley darling: Blue Apron. In the fall of 2016, BuzzFeed detailed the consequences of the lax hiring practices and safety standards governing the food-delivery company’s Richmond, Calif. warehouse. Employees reported pain and numbness from the frigid indoor temperatures and injuries from warehouse equipment. Many filed police reports stating co-workers had punched, choked, bitten or groped them, amid threats of violence with knives, guns and bombs.

At the time of these complaints, both companies had fully ingratiated themselves to investors. Tesla’s reported worth is so astronomical even the most technocratic corporate mediaand Musk himselfquestion it. Blue Apron, which went public this year, snagged a $2 billion valuation in 2015. (Blue Apron has since seen a marked decline, a development that maybe have been spurred by BuzzFeed’s report.) As a result, both companies have habitually placed escalating pressure upon their employees to generate product, their executives eyeing the potential profits.

Predictably, these companies’ legal compliance appears to have fallen to the wayside in the name of expediency. Tesla and Blue Apron factory employees have found themselves working 12hour shifts, in some cases more than five days a week. Tesla employee Jose Moran wrote of “excessive mandatory overtime” and “a constant push to work faster to meet production goals.”

In 2015, Blue Apron appeared to violate a litany of OSHA regulations, ranging from wiring to chemical storage. It also hired local temporary workers via third-party staffing agencies—likely to circumvent the costs of such benefits as health insurance. As BuzzFeed noted, these staffing agencies independently screened candidates in lieu of internal background checks. Compounding the problem, the company expected temps to operate machinery they were unqualified to handle. (Blue Apron has since euphemized its OSHA violations and claimed to have axed these staffing agencies. The company has not responded to requests for comment.)

Aggravating an already fraught atmosphere, the companies appear to have used punitive tactics to coerce laborers into greater productivity. While some Tesla workers are placed in lower-paying “light duty” programs after reporting their injuries, others are chided for them. One production employee, Alan Ochoa, relayed to the Guardian a quote from his manager in response to his pain complaint: “We all hurt. You can’t man up?”

Equally culpable is e-commerce goliath Amazon. Bloomberg reported that the company mounts flat-screen televisions in its fulfillment centers to display anti-theft propaganda relating the stories of warehouse workers terminated for stealing on the job. (This offers a blue-collar complement to the 2016 New York Times exposé on its draconian treatment of office employees.) According to a former employee, managers upbraid workers who fail to pack 120 items per hour, heightening their quotas and, in some cases, requiring them to work an extra day. Those who don’t accept overtime shifts, meanwhile, lose vacation time.

Amazon told In These Times, “We support people who are not performing to the levels expected with dedicated coaching to help them improve.”

It’s no wonder, then, that Blue Apron and Amazon warehouses generate high turnover. In fact, this is likely by design. By creating working conditions that not only extract vast amounts of labor at low costs, but also drive workers away, tech companies can skirt the obligation to reward employees with raises and promotions. A companion to the profit-mongering schemes of Uber, Lyft and now Amazon (through its Amazon Flex delivery vertical) to classify workers as contractors, this form of labor arbitrage ensures that owners of capital avoid the risk of losing wealth to hourly workers—a class they deem thoroughly disposable.

Tesla has caused similar workforce tumult, firing employees for the foggy offense of underperformance. Of the hundreds of terminated employees from both its Palo Alto, Calif. headquarters and its Fremont facility, many were union sympathizers who’d been in talks with the United Auto Workers. The move has thus aroused suspicions that the company sought to purge dissidents—a reflection of the anti-union posture that has characterized Silicon Valley for decades.

If the near-ubiquity of factory and warehouse worker exploitation in the news cycle is any indication, tech capitalists—through their regulatory negligence and toothless “solutions”—have fostered a culture of barbarism. Low-wage laborers have little to no recourse: They’re either left to endure imminent social and physical harm, or, should they seek protections against the anguish they’ve borne, are stripped of their livelihood.

The blue-collar hellscape Tesla, Blue Apron and Amazon have wrought is what laissez-faire, startup-styled late capitalism looks like. At a time of such disregard for the fundamental health, safety and humanity of low-tier workers, the tech-executive class has proven nothing is sacred—except, of course, the urge to scale.

This article was originally published at In These Times on November 29, 2017. Reprinted with permission.

 About the Author: Julianne Tveten writes about the intersection of the technology industry and socioeconomic issues. Her work has appeared in Current Affairs, The Outline, Motherboard, and Hazlitt, among others.

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