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Workplace Safety in the Time of Trump: OSHA Defanged?


— January 11, 2017

The Occupational Safety and Health Administration (OSHA) was created to set and enforce workplace safety standards, thus reducing on-the-job injuries and deaths. While the workforce has almost doubled in size since OSHA’s 1970 inception, the number of on-the-job deaths has dropped by over 65%, according to an OSHA 2013 white paper. Even so, OSHA is understaffed and limited in authority while there is still much work to be done. Soon, we’ll be faced with workplace safety in the time of Trump and the question presented is: will OSHA be further defanged?


The Occupational Safety and Health Administration (OSHA) was created to set and enforce workplace safety standards, thus reducing on-the-job injuries and deaths. While the workforce has almost doubled in size since OSHA’s 1970 inception, the number of on-the-job deaths has dropped by over 65%, according to an OSHA 2013 white paper. Even so, OSHA is understaffed and limited in authority while there is still much work to be done. Soon, we’ll be faced with workplace safety in the time of Trump and the question presented is: will OSHA be further defanged?

As it stands, OSHA and its state-level equivalents are charged with regulating roughly 8 million workplaces with a staff of fewer than 1,850 inspectors. According to an AFL-CIO report, if OSHA inspected each workplace only once, it would take around 145 years to complete the task. Given that challenge, and the failure of a George W. Bush-era enforcement program, OSHA decided to focus on the worst of the worst, creating the Severe Violator Enforcement Program (SVEP) in 2010. The SVEP replaced the Enhanced Enforcement Program (EEP) after the Office of the Inspector General found that “employers with reported fatalities were not always properly identified and inspected.”

Six years later, there are over 500 businesses are listed as severe violators. These companies range from small construction firms with a dozen or less workers to huge corporations like DuPont. SVEP’s purpose, according to the 2013 white paper, is “to focus enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations relating to significant hazards.” Even the SVEP is limited, though. According to the Bureau of Labor Statistics, there were roughly 4,800 workplace deaths last year.

If OSHA added every company with a workplace fatality to the severe violators list, it would be unable to fulfill its enforcement function. In fact, a workplace death only gets a company listed as a severe violator if it resulted from flagrant violations or OSHA determines there is a pattern of reckless conduct on the part of the employer. Last year, only about 0.5% (one in 200) companies with a workplace fatality ended up as a severe violator.

How does OSHA use the SVEP to enforce workplace safety? The SVEP is a means of negotiating settlements to force severe violators into cleaning up their acts. It also adds the incentive of a good old-fashioned public shaming, as the list is a matter of public record.

OSHA head David Michaels; image courtesy of www.fairwarning.org.
OSHA head David Michaels; image courtesy of www.fairwarning.org.

The current (until the new administration takes over) head of OSHA, David Michaels told FairWarning “even if we doubled our inspectors, we would still be able to only get to a small portion of employers. And so we need tools like SVEP, which extend our capabilities and encourage more employers to do the right thing even without inspections.” Mr. Michaels also hopes that the incoming administration will take OSHA’s mandate seriously. However, that may be a lot to hope for given the strong anti-regulations views of many of the President-elect’s cabinet choices, such as the pick for Secretary of Labor, Andrew Puzder. Some expect that OSHA may be facing even more restrictions of its enforcement powers.

It’s clear that SVEP is not perfect. Critics of the program, such as MIT Professor Thomas A. Kochan, the co-director of MIT’s Institute for Work and Employment Research, assert that “There hasn’t been a really good objective evaluation” of SVEP’s efficacy. OSHA relies on settlements with severe violators as a means of measuring the program’s success.

Other critics like former OSHA official John Newquist, believe that OSHA is essentially a toothless dog with a loud bark. Mr. Newquist believes that “There’s no fear of OSHA at all.”

It’s not hard to see why critics – and employers – feel this way. OSHA can issue citations and fines, but it has no power to close dangerous workplaces. Even its fines are low compared to other regulatory agencies.

According to Deborah Berkowitz, former OSHA chief of staff (2009 – 2013), “OSHA is one-eighth the size of the EPA, it has the lowest penalties of almost any government agency – but even though it is small, it is critical that enforcement be maintained.” Ms. Berkowitz knows SVEP is “not an end-all tool,” but she believes it is an important one in OSHA’s enforcement repertoire.

Unsurprisingly, the SVEP also has its fair share of criticism from corporate lawyers. Eric J. Conn specializes in OSHA defense cases in his Washington, D.C.-based practice. He said, “You are dumped into SVEP essentially the day that the citations are issued and a citation is nothing more than an allegation. Having the federal agency that is responsible for safety and health branding that employer as a bad actor … absolutely has significant consequences to the employer’s business.”

Others have complained that SVEP does away with due process by adding companies to the severe violators list even while the companies are appealing the citations. Due process would afford the violators a chance to have their cases heard before being added to the severe violators list.

Yet more corporate lawyer critics, like Adele Abrams who’s also based in D.C., assert that a business’ competition or detractors could use the company’s severe violator status as a weapon. If people living near a business on the list “don’t like your company to begin with, this is more ammunition they can use to go to a zoning board to block permits for expansion,” she said.

While I agree with the point about due process, I support OSHA’s SVEP and the public shaming element. The typical severe violator is a business that willfully ignores standard safety regulations and exposes its employees to dangerous, even fatal, conditions. So, if they really are that bad and show no remorse or willingness to change, why should anyone feel sorry for them if being publicly shamed either forces them to change or costs them some business?

Safety regulations are in place for a reason: to keep hardworking Americans safe while on the job. Workers are not disposable cogs and should not be treated as such. Companies – and politicians – working to deregulate safety should be ashamed of themselves.

Sources:

OSHA’s Wall of Shame

OSHA’s wall of shame: with limited staff, safety agency targets ‘severe violators’

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