- ISHN GLOBAL
- EHS RESEARCH
Monforton’s ideas could be a harbinger of OSHA reform legislative proposals we’ll see in the next one or two years. And with Democrats controlling the White House and Congress, the odds of these kinds of proposals being enacted into law are greater than they have been for decades.
Monforton stated in her testimony: “Davitt McAteer, former Assistant Secretary of Labor for Mine Safety and Health, notes that employers (and individuals) generally fall into three categories. One group is the top performers: companies that strive for operational excellence. They don’t worry about OSHA inspections; they already have worker injury and illness prevention programs that are grounded in employee involvement and continuous improvement and, frankly, put OSHA’s bare-minimum regulations to shame.
“At the other end of the spectrum are the bad actors. These individuals intentionally disregard the law or are indifferent to it – they act as though the rule of law doesn’t apply to them. Unfortunately, there are employers who fall into this category. These are employers who violate the law, without care or concern for the individuals or communities potentially affected by their decisions. They flout rules designed to protect our air, water and other natural resources, defy minimum wage and overtime rules and collective bargaining rights, and ignore workplace health and safety standards. Employers in this category deserve to get the book thrown at them – not just the book, the whole book shelf.
“Our occupational health and safety (OHS) regulatory system must provide harsh penalties for employers who fall into this category. The system should require the equivalent of ‘points on their permanent record.’ Employers who flagrantly, willfully or repeatedly violate laws designed to protect workers from injuries and illnesses should see their finances and reputations suffer.
“Our system should take advantage of the times when such employers are caught, and capitalize on these grievous situations for their value as a deterrent for companies nationwide. It may not deter other bad actors, but it will catch the attention of those who might be tempted to cut a few corners when under pressure.
“The majority of employers and the majority of people in general are neither stellar performers nor bad actors. We respect laws’ aims and purposes, and we comply with them – most of the time. At times, however, competing forces color our judgment, and we break a rule because we think the likelihood of causing harm is low, as is the risk of getting caught.
“Many employers and their managers know that workplace OHS standards are based on lessons learned and have a public health and safety purpose. But, from time to time, when certain competing forces weigh on them, they make a calculation. They weigh the risk of suffering harm or causing harm to another and the likelihood of getting caught breaking the law. The deterrent effect of OSHA’s penalty system could be amplified to outweigh the influence of competing forces.
“An employer has the right to contest four aspects of the citation: (1) the classification of the violation (e.g., serious, willful); (2) the OSHA rule, standard or statutory clause affixed to the violation; (3) the abatement date; and/or (4) the proposed penalty. Instead of formally contesting one of these aspects, an employer may request to meet with the director of the local OSHA office for an informal conference before the 15-day period to file a notice of contest expires.
“The majority of employers who receive OSHA citations participate in informal conferences, and the majority of OSHA inspection cases are resolved this way. OSHA’s area directors have the authority to reclassify violations (e.g., downgrade from willful to serious, serious to other-than serious); withdraw or modify a citation, an item on a citation, or a penalty; and negotiate the proposed penalty. If both parties agree to the negotiated terms, the employer must then abate the hazard in the agreed upon time period; if no agreement is reached, the employer will likely choose to formally contest it through the OSHRC system and can refrain from correcting the safety problem in the meantime.
“OSHA’s area directors offer penalty reductions and reclassifications of citations (e.g., from serious to other-than-serious) in order to compel prompt correction of the hazard. From a local OSHA manager’s perspective, s/he would rather get the dangerous situation rectified so that workers at the site are protected from potential harm, rather than risk a chance that the employer will contest the citation and penalty.
“OSHA’s inspectors and local managers are truly in a difficult position because the citations and penalties are linked to hazard abatement. Compare the situation of OSHA inspectors and supervisors to that of their colleagues at the Mine Safety and Health Administration (MSHA).
“Under the Mine Act, when a federal mine inspector identifies a violation of an MSHA standard or regulation, mining companies are required to begin fixing the problem immediately.
“Employers in the mining industry have the right to challenge citations and penalties before the Mine Safety and Health Review Commission (MSHRC), but an employer’s decision to litigate an inspector’s finding and/or the proposed penalty does not give him permission to let workplace hazards persist. OSHA needs comparable authority.
“The principle of prevention must be enshrined in our workplace OHS regulatory system. This means providing OSHA the authority to compel immediate abatement of hazards that are known to contribute to serious injury, illness or death. We can’t make advances in preventing harm to workers when our system forces local OSHA staff to bargain with employers for worker protections that they are already required to implement. The informal settlement process should not only expedite abatement of the hazard, but also give OSHA leverage to require employers to implement measures that go above and beyond what is required by OSHA.
“I envision a transformed OSHA penalty system that would offer a more significant deterrent effect and would provide incentives for employers to enhance their OHS systems beyond the bare-minimum OSHA requirements.
“For example, modest reductions in the penalty amount could be reserved exclusively as a negotiation tool to compel abatement of other-than-serious violations. (As noted above, immediate abatement should be required for a class of hazards known to contribute to serious injury, illness or death.) In order for an employer to secure a reclassification of a violation (e.g., from serious to other-than-serious), the firm would be required to implement a meaningful worker injury and illness prevention measure at their worksite (e.g., a worker-involved hazard identification and correction program).Likewise, if an employer sought a reclassification of a willful violation to a serious violation, the firm would be required to implement a comprehensive health and safety management system, or would be required to implement a meaningful and verifiable intervention at all of the firm’s locations.
“The pragmatist in me recognizes that making such changes to the current penalty system is likely to increase the number of citations and penalties that are contested. That’s true. In fact, MSHA staff tell me that since the agency’s penalties were increased substantially in April 2007, the contest rate has quadrupled.
“In order to temper employers’ race to the courtroom (which would be a windfall for attorneys who specialize in employer OHS defense), OSHA could capitalize on the reputation costs to firms of OHS violations, by making accessible to the public in a searchable format data on employers’ specific violations, informal settlement demands, contest history, etc. Potential employees, communities, competitors and the press should have access to employer-specific data, to make an assessment for themselves about a firm.
“Isn’t it time that we, as a nation, proclaim that certain hazardous conditions in workplaces are not tolerated? Just as drunk drivers now receive hefty legal penalties and scorn from their peers, employers should pay dearly for allowing workers inside an unshored trench, permitting unguarded floor openings, tolerating inoperable safety devices and sending workers into confined spaces without proper training and equipment.
”Congress should direct OSHA to publish a list of specific hazardous conditions or work practices that will be deemed automatic willful violations. Citations issued under this provision would not be eligible for reclassification and would remain on the company’s enforcement history record for a minimum of ten years. This congressional mandate would include a requirement for OSHA to update the “automatic willful” list biennially.
“It’s time to capitalize on the prevention potential of OSHA citations. For example, if a serious hazard or violation of a workplace standard is identified in an employer’s workplace, that company should be expected to look for this same hazard in all of its other operations, once it has been put on notice that the hazard exists. With 21st-century communication tools at their fingertips, businesses are well equipped to correct hazards and strengthen prevention programs across all of their sites.
“Congress should mandate when a serious hazard has been identified by OSHA at one facility, the firm should be required to conduct an audit to determine whether the same hazard exists at other facilities. If comparable hazards or violations are found at another site, citations for those violations should be classified using the new category of “reckless disregard.”
“Congress should give OSHA the authority to compel abatement of hazards regardless of an employer’s decision to contest a citation and/or penalty. Moreover, reclassification of citations (e.g., from serious to other-than-serious) should be reserved for circumstances in which the employer agrees to implement an intervention that goes above and beyond mere compliance with an OSHA standard.
“OSHA should capitalize on the reputation costs to employers who violate OHS standards by making workers, competitor businesses and the public much more aware of companies’ OSHA enforcement history. This would entail offering a web-based system with data on employers’ specific violations, informal settlement demands, contest history, etc.
“Congress should direct OSHA to publish a list of specific hazardous conditions or work practices that will be deemed automatic willful violations and that will not be eligible for “Section 17” designations or other reclassification by OSHA.
“Congress should reset the current statutory minimums and maximums for OSHA civil penalties and mandate that OSHA index them regularly to account for inflation.
“OSHA’s penalty calculation should include a specific factor that assesses the economic benefits reaped by an employer for violating health and safety regulations, which will level the economic playing field for firms that invest in progressive, effective OHS labor-management systems.
“Congress should impose an obligation on large firms to address hazards on a company-wide basis, once they have been identified by OSHA at one of the firm’s facilities.
“A new category of violation, “reckless disregard,” should be created for employers who fail to use an OSHA citation as notice of a hazardous condition to be corrected elsewhere. pending cases. This could be a simple electronic spreadsheet with data fields such as case number, employer, worksite location, date of OSHA citation, status of litigation, date of final decision and the URL for the final decision text. Making this information available increases the likelihood that frequent and severe offenders will suffer deserved reputational damage.