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May 1, 2010

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House subcommittee hears reasons for and against increasing penalties in the OSH Act

By Kyle W. Morrison, associate editor

For Eleazar Torres-Gomez, change came too late. An employee at a Cintas Corp. facility in Tulsa OK, Torres-Gomez died in 2007 when he fell into an operating industrial dryer while clearing a jam of wet laundry on a conveyor belt. Two years earlier, Cintas Corp. was cited by OSHA for failing to guard its laundry equipment at a New York facility. The proposed penalty for the New York incident was $2,125.

Only after the death of Torres-Gomez, a serious injury to another employee in a similar incident and millions of dollars in OSHA fines did the company agree to fix the hazard at all of its locations.

“It should not have required his death in order for Cintas to accept its responsibilities to its employees and fix those problems after being cited the first time, especially when they knew how serious that problem was,” said Eric Frumin, health and safety coordinator for Change to Win, a Washington-based coalition of several labor unions.

Frumin recounted the story of Torres-Gomez in March during a House Education and Labor Committee’s Workforce Protections Subcommittee hearing on proposed increases to OSHA penalties in the Protecting America’s Workers Act (H.R. 2067). The penalty provisions would increase both the minimum and maximum dollar amounts OSHA can fine employers for violations, and also would allow for the prosecution of employers for criminal behavior that caused a workplace death or serious injury.

Need to update

According to Frumin and others who testified at the hearing, OSHA’s penalties fail to act as a proper incentive for employers to adhere to safety and health standards. Expressing his support for the bill, OSHA administrator David Michaels noted the maximum fine the agency can assess in a fatal workplace incident is much lower than fines issued for violations of environmental law, leading subcommittee Chair Rep. Lynn Woolsey (D-CA) to quip, “It appears our love for fish and birds is way stronger than our value and love for human beings and our workers.”

Michaels declined to comment on Congress’s rationale for such discrepancies, but stressed the need to update OSHA’s penalties in light of the differences between various agencies’ penalty structure. “That sort of inequality is what we’re dealing with, and we believe it should be changed,” he said, adding OSHA penalties only have been updated once in 40 years despite inflation.

Criminal provisions in the current Occupational Safety and Health Act are equally inadequate, according to John Cruden, deputy assistant attorney general for the Environment and Natural Resources Division at the Department of Justice. He testified that three major disparities exist between the current OSH Act and other statutes for criminally prosecuting employers who violate the law:

  • A worker must die; under environmental law for a criminal prosecution, there only needs to be the risk of death or serious bodily injury.
  • Employers found violating the OSH Act can only be charged with a misdemeanor with a maximum six-month sentence; an environmental law violation carries up to 15 years of prison time.
  • The employer must have “willfully” committed the violation; other criminal statutes require the defendant to have “knowingly” violated the law.

Words of caution

Other participants at the hearing warned against changing the OSH Act solely through sanctions. Attorney Jonathan Snare, former acting assistant OSHA administrator who testified on behalf of the U.S. Chamber of Commerce, questioned how increased penalties would help employers establish effective workplace safety programs.

If the common goal is to decrease injuries, illnesses and fatalities, Snare said, then statistics showing those numbers declining in the last decade validate the approach OSHA used under the previous administration of mixing enforcement with compliance assistance. “Because there are 6 million jobsites, and the agency is never going to reach all of them, it’s more effective to leverage those resources and do it with a way of a balanced approach,” Snare said.

While the goals behind the Protecting America’s Workers Act are “laudable,” according to Snare, the bill could have “unintended consequences,” such as a higher rate of contested citations, which could clog the system and delay resolving cases. Most employers want to do the right thing, Snare said, and the effort to amend the OSH Act is driven by “outlier” employers who fail in workplace safety obligations.

Frumin dismissed that assertion. “Is Cintas an outlier employer?” he asked, calling the company an industry leader who, like others such as BP, was found to have committed egregious safety violations. Subcommittee ranking member Rep. Cathy McMorris Rodgers (R-WA) stressed the importance of cooperation between employers and OSHA, and warned against anything that could create a “hostile environment” between the two. “I think that we have to be careful about picking one or two examples and then passing sweeping legislation that could potentially add more burdensome and complicated rules on employers that really are trying and it is their goal to provide a safe workplace,” McMorris Rodgers said.

A companion bill to the House’s Protecting America’s Workers Act is in the Senate, as of press time.

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