Pressure Building for OSHA Reform

Mike Elk
Working In These Times
July 25, 2012

During President Barack Obama's first year in office, the number of workers killed on the job increased by 3.1%, an alarming rise that has workplace safety advocates demanding broader changes to OSHA. The Center for Progressive Reform has issued a report entitled "The Next OSHA: Progressive Reforms to Empower a New OSHA", which outlines the various ways in which OSHA should be reformed.

The report calls for legislation that would dramatically increase the fees and jail time for employers who willfully break a safety law that winds up killing a worker. Currently, the maximum penalty for killing a worker on a job as a result of a willful safety violation is a mere six months in jail. In comparison, the penalty for chasing a wild burro onto federal land is a felony with a maximum sentence of one year in jail.

The center also wants OSHA to be able to issue administrative compliance orders, which would force employers to make safety changes immediately or face shut down of their sites. Currently, OSHA inspectors must often go through a myriad of court procedures before their safety provisions come into effect. Workplace safety advocates argue that a workplace should be shut down as soon as a safety hazard is recognized, not after a worker gets killed on the job.

The report also calls for streamlining the rule-making process at OSHA. As a result of a Reagan-Era law, OSHA must perform a high level of cost-benefit and scientific analyses that aren't required of many other agencies, which dramatically slows the time it takes for OSHA to issue a rule. A GAO report released in April found that it took OSHA 50 percent longer than it takes the EPA to issue new rules, nearly twice as long as it takes the Department of Transportation and nearly five times as long as it takes the SEC. The report also noted that 25% of OSHA rules took more than 10 years to be issued.

The Center for Progressive Reform hopes that by starting to put pressure on Obama now they may be able to make some long-term changes to OSHA.

"I think once Obama wins this election, it will be time for progressives to put a great deal of pressure on Obama to do things progressively," says Thomas McGarity, one of the report's authors and a professor at the University of Texas Law School. "I don't think he will be able to ignore us if he wins this election. If he wants a legacy, his administration needs to do more."

However, McGarity believes Obama could be doing more right now to improve how OSHA enforces workplace safety rules. He says OSHA and the Department of Justice, in prosecuting cases of workplace accidents, should start applying the responsible corporate officer doctrine. That doctrine holds that, even if they were unaware of the violation at the time it occurred, corporate officers are liable for criminal actions by their position at the top of the corporation. Currently, the EPA and FDA apply the doctrine, but OSHA has not done so in the small number of prosecutions of workplace safety.

"You make an example of a few scofflaw employers," says McGarity. "You would go after not just the the corporation, but the corporate official and you would put him in jail. The reason they are not doing it now is that it would generate an awful lot of political heat coming from the right. I don't think that's a legitimate reason not to do it. They would storm up a hornet's nest on Fox News, but they would get the attention of employers all across the country."

McGarity also thinks OSHA should include the families of workers killed in workplace accidents when negotiating settlements with companies and allow them to object to any part of a purposed settlement. Including the families in the process could make the settlement talks more high profile and publicly shame the companies. Family members also may be able to push OSHA to be tougher on companies.

In the current environment of a Republican-controlled House of Representatives, reforming OSHA for the better is a nearly impossible task. But McGarity wants the Center for Progressive Reform's agenda on the table when improvements to workplace safety do become politically possible.

"I think it hasn't been part of the conversations because of the conservative echo chamber that would not allow that topic to become a matter of discussion except as a beating on OSHA," says McGarity. "[But] if we have another big disaster then suddenly workplace safety is part of the conversation again. I can promise you it's going to happen."

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