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July 10, 2005

Tell Congress Not To Weaken Worker Protections

Reprinted From Confined Space

As Congress heads into its final session before its long Summer break, this is what American workers are facing every day when they go to work:

  • More than 5,500 workers die in accidents every year in American workplaces, and tens of thousands more die each year from occupational diseases.
  • Small businesses routinely try to cut corners by not using trench boxes or safe scaffolds and fall protection, and workers die as a result.
  • Giant oil companies that can't even get their alarms or monitoring devices to work blame their employees for an explosion that kills 15 and injures hundreds.
  • OSHA can only get to a miniscule fraction of American workplaces each year. At its current staffing and inspection levels, it would take federal OSHA 108 years to inspect each workplace under its jurisdiction just once.
  • Even when it cites an employer for killing or seriously injuring a worker, the fines are generally insigificant even in situations that they knew were deadly. The penalty for harassing a burro on federal land is one year in jail. In fact, killing fish and crabs draw larger penalties than killing workers.
  • 8.5 million state and local government employees still have no legal right to a safe workplace.
  • Most of the chemical standards that OSHA is enforcing were determined in teh 1950's and 1960's.
  • Meanwhile, the agency has all but stopped issuing standards to protect workers against numerous preventable hazards that kill and injure hundreds and thousands every year.
...and on and on.

Sounds like some room for improvement.

So what is to be done? Increase OSHA's budget? Pass legislation raising the fines OSHA is allowed to levy and making it easier to go after criminal prosecutions and jail time for employers who wilfully kill workers? Maybe throw a little money at the National Academy of Sciences to figure out how to develop protective, modern chemical standards?

How are the Republicans in the House of Representatives addressing the problems of workplace safety in this country? What problems? To the Republican leadership and the business interests that fund them the only problem facing American workplaces is harassment of small businesses by that big bully, OSHA.

 According to Workforce Protections Subcommittee Chairman Charlie Norwood (R-GA), chief sponsor of the bills, "Small businesses can’t afford compliance managers and full-time safety personnel that big businesses use to keep over-zealous OSHA agents at bay." In other words, apparently they should be given a "get out of jail (or paying penalties) free" card, regardless of the dangerous conditions their employees are forced to work in. What does Norwood have in mind?

On Tuesday, July 12, instead of helping workers by addressing some of the problems listed above, the Republican leadership in the House of Representatives is planning to pass four bills (H.R. 739, H.R. 740, H.R 741, and H.R.742) that will further weaken worker protections. In the words Congressman Major Owens (D-NY) and George Miller (D-CA), "Taken together, these one-sided bills rollback safety and health protections for millions of American workers."

H.R. 742 Occupational Safety and Health Small Employer Access to Justice Act is probably the most offensive bill being voted on Tuesday is- This bill requires taxpayers to pay the legal costs of small employers (defined as employers with 100 or fewer employees and up to $7 million net worth) who prevail in any administrative or enforcement case brought by OSHA or any challenge to an OSHA standard, regardless of whether the action was substantially justified.

So what's the problem? Isn't it fair for Ma and Pa Inc. to get their lawyers paid for when big bad OSHA comes and arbitrarily cites them for something they didn't do?

No. First, OSHA, like most other government agencies. is already required to pay back litigation costs where litigation costs where the government position was not substantially justified. This bill would single OSHA out of all other government agencies in that even if an employer prevailed on a technicality, taxpayers would be forced to foot the bill. Under this bill employers will also be able to recover partial attorneys fees if they partially prevail in an OSHA proceeding.

As the AFL-CIO points out:

This bill would allow even the worst employers -- ones with repeated and egregious violations -- to recover fees if they prevailed on a particular violation. Even employers like Eric Ho, who exposed his employees to asbestos and made them work at night behind locked gates without providing them any sort of respirators or training -- and who was criminally convicted for Clean Air Act violations -- would be able to recover attorneys’ fees. This is because the OSHA Review Commission dismissed two of Ho’s corporations as defendants and dismissed 10 of 11 willful violations of OSHA’s respirator and training standards. Secretary of Labor v. Ho, Nos. 98-1645 & 98-1646 (OSHRC, Sept. 29, 2003).
But it only affects business with fewer than 100 employees? How bad can that be?

Bad. Businesses with 100 or fewer employees make up 97.7 percent of all private sector establishments and the have a higher rate of fatal occupational injury than do establishments with 100 or more workers.

Furthermore, OSHA is already seriously underfunded, yet this bill would further drain its resources:
As estimated by the Congressional Budget Office, this bill would cost $7 million in FY 2005 and $44 million total for FY 2005-2009, which must come out of OSHA’s budget. This would require Congress to appropriate additional money to OSHA’s budget to cover the cost of the bill or to cut OSHA’s enforcement budget or reduce compliance assistance to small business.
Moving right along...

H.R. 739,Occupational Safety and Health Small Business Day in Court Act gives employers a little extra time in case they accidentally forget to appeal OSHA citations by the 15 day deadline if they can show "mistake, inadvertence, surprise, or excusable neglect" as the reason. (Surprise?!) I can just see how well this would work for my kids if their teachers said they didn't have to hand in assignments on time if they could show that there had been a mistake, inadvertence, surprise, or excusable neglect.

I can (and already did) imagine the dog-ate-my-homework excuses those wild and crazy employers will come up with to excuse themselves from getting their appeals in on time.

The whole point of the 15 day deadline is to move appeals along as quickly as possible. Few people know that if an employer appeals an OSHA citation, he doesn't have to fix the problem until the appeal is concluded. In addition, the OSHA Review board already reviews delinquent appeals on a case by case basis. Finally, workers aren't given any extension of their deadline to appeal OSHA's abatement schedule. Why are employers the only ones allowed to use mistakes, inadvertence, surprise, or excusable neglect as excuses?

H.R. 741 Occupational Safety and Health Independent Review of OSHA Citations Act would would undermine the Secretary of Labor’s authority to interpret and enforce the law and radically change the implementation and enforcement of the OSHAct. The bill would give the OSHA Review Commission, rather than the Secretary of Labor, deference in interpreting OSHA standards. The legislative history of the OSHAct clearly gives the Secretary the authority and responsibility to implement and enforce the law and interpret the standards. The Labor Department and OSHA adopt standards and enforce the law, and therefore have a much much broader and deeper understanding of OSHA’s rules than the Review Commission.

And after the Commission is given more power....

H.R. 740 Occupational Safety and Health Review Commission Efficiency Act would effectively pack the OSHA Review Commission with more Republican appointees. It would expand the Board from three to five members and require that they all have legal training. Expanding the membership would allegedly help the commission retain a quorum, although it's hard to see how. Right now, two members are needed for a quorum, whereas after this reform three would be needed. If the Administration find it difficult getting two members to stay on the Commission, why would getting three be any easier? And it's just a coincidence that this "reform" is coming when the Republicans are in control of Congress and the White House.

And why should only lawyers be allowed to interpret OSHA law? I personally know a lot of workers -- health and safety reps -- who have a much better understanding of the law than most attorneys. (And I guess I just answered my own question.)

What Can You Do?

Call, fax or e-mail your Congressman or woman and tell them to oppose ALL of these bills. We need to strengthen OSHA, not weaken it.

Every House member should be called. Even if they're solidly pro-labor or solidly anti-labor they all need to hear that American workers are concerned about weakening OSHA.

The following Representatives need special attention. The same bills were voted on last year and the following Democrats voted wrong on at least one of them: Bishop (GA), Boyd (FL), Cardin (MD), Case (HI), Cooper (TN), Cramer (AL), Davis (FL), Davis (TN), Edwards (TX), Gonzalez (TX), Gordon (TN), Harman (CA), Matheson (UT), Marshall (GA), McIntyre (NC), Rahall (WV), Skelton (MO) , Spratt (SC), Tanner (TN), Taylor (MS), and Wynn (MD).

Urge them to vote against ALL of these bills on Tuesday.

The following Republicans voted correctly on at least one of the bills: Boehlert (NY), King (NY), LaTourette (OH), LoBiondo (NJ), McHugh (NY), Saxton (NJ), Shays (CT), Smith (NJ) Sensenbrenner (WI), and Sweeney (NY).

Congratulate them for supporting workers last year, and encourage them to oppose all of the bills this time around.

If you don't know who your Congressman is or how to contact him or her, just scroll down the right-hand column until you come to a picture of Abraham Lincoln. Fill in your zip code and you're in business.

And don't worry, the American people are with us. A recent Wall St. Journal-NBC News poll showed that 84% of those polled think that Congress should be more involved with "Rules in the workplace that deal with health and safety issues," a level of support that exceeded any of the other options listed. Let's show them what happens when Confined Space and LaborBlog readers swing into action.

Posted by Jordan Barab at July 10, 2005 10:42 PM