Protect America's Workers Act

A New Day for Worker Safety?

Progressives have had plenty of reasons to be discouraged lately—real health care reform being sacrificed on the altar of Joe Lieberman's ego, an expanding war in Afghanistan, a White House economic team that often seems more responsive to the needs of investment bankers than working families—but in one corner of the federal bureaucracy, real change is underway. When President Obama named Hilda Solis as Secretary of Labor and Jordan Barab as interim Acting Director of OSHA, he signaled a sea change in the roles those agencies would play.

OSHA under the Bush administration was an agency that had fallen into a deeply somnolent state, taking its cue from its last Director, Ed Foulke, renowned primarily for his ability to fall asleep in the midst of staff meetings. With the arrival of Solis and Barab, a new wave of energy swept into the agency. For the first time in eight years, new regulatory initiatives were moved forward, new enforcement initiatives announced, and stiffer penalties imposed for egregious violations. With the nomination and recent Senate confirmation of Dr. David Michaels as the new OSHA Director, we can expect a continuation of these aggressive efforts.

But OSHA remains hamstrung by a weak Occupational Safety and Health Act, written during the Nixon administration and scarcely updated since, and a budget that is woefully inadequate to meet the needs of a vastly expanded workforce. The maximum penalties allowed under the current Act are too small to deter bad employer behavior. For a “serious” violation of an OSHA standard, a company may be fined up to $7,000. In practice, after appeals and negotiations, fines are usually lower. Even in cases in which a worker is killed, the median final penalty assessed was only $3,675 in 2007.

So, while violators of the South Pacific Tuna Act can face penalties up to $325,000 and the EPA can hit you with a $270,000 fine for violating the Clean Air Act, failure to provide a safe work environment that leads to the death of a worker is likely to result in a fine under $5,000. Criminal penalties under the Act are even more out of step with those of other federal agencies. An employer who willfully violates the OSHA Act and whose actions result in a worker's death can only be prosecuted for a Class B Misdemeanor with minimal penalties, similar to a traffic offense on federal land. As a result, the US Department of Justice is reluctant to pursue such cases. In fact, less than one percent of OSHA cases eligible for criminal prosecution are pursued by the Justice Department.

The Protecting America's Workers Act, a bill introduced into both the US House and Senate, would address some of the limitations of the OSH Act and strengthen the hand of the agency. Specifically, the bill would:

• Increase civil penalties;
• Enable felony prosecutions in cases of egregious employer disregard for worker safety which results in death or serious injury;
• Provide coverage to millions of people not covered by the current law, including state, county, and municipal employees left out in many states;
• Prohibit employers from disciplining workers for reporting injuries, a common and dangerous practice across industries;
• Enhance the rights of “whistleblowers” providing, for the first time, real protection from retaliation to workers who exercise their rights to file OSHA complaints;
• Provide rights to family members of workers killed on the job, rectifying practices that have kept grieving families in the dark about OSHA investigations up until now.

None of what is in this bill is radical. But the legislation would provide a much-needed boost to OSHA's authority and to worker's rights to safe and healthy conditions. Workplace safety in North Carolina is overseen by the state OSHA program (states have the option of choosing to fall under federal jurisdiction or run their own program.) But the changes to the federal OSH Act would impact North Carolina and other “state plan” states, since those states' programs would be required by federal law to adopt the changes in the OSH Act. And North Carolina is no stranger to workplace disasters—three workers were killed and 41 injured in an explosion at the Garner Slim Jim plant in June; four were killed on Ocracoke Island in a Fourth of July fireworks explosion; and an ammonia line rupture killed one worker and seriously injured several others at Mountaire Farms in Lumber Bridge, to name just a few incidents in the state in 2009.

Workplace safety was one of Sen. Ted Kennedy's passionate causes--the Protecting America's Workers Act was the last bill he introduced in his long and distinguished career. The Congress should honor the memory of Sen. Kennedy by quickly passing the Protecting America's Workers Act, HR 2067 and S 1580, to strengthen our nation's protections of workers' safety and health. To learn more or to get involved in the campaign to pass the legislation, visit: http://www.protectingworkers.org.

Written by Tom O'Connor, Executive Director of the National Council for Occupational Safety and Health, December 17, 2009