Tesla’s recordkeeping violations show how repeal of OSHA’s Volks Rule hurts workers

Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

One of the first actions of the Republican Congress after Trump’s election was to repeal OSHA’s recently issued “Volks Rule” that allowed the agency to cite companies for continuing failure to accurately record injuries and illnesses.

Now an article by Will Evans at Reveal shows how real workers are suffering because of automaker Tesla’s failure to record numerous serious injuries and how the company will likely get away with it because of the action of Congressional Republicans and Donald Trump, who signed the repeal bill.

Reveal published an article earlier this year describing widespread health and safety problems at Tesla — and under recording of injuries and illnesses. The automaker had lots of excuses for not recording injuries they didn’t require medical treatment until later on, or they received new medical records or other new information, etc., etc…

But

Andrew Driskell said none of those explanations would account for why his knee injury wasn’t recorded in December.

Driskell was working the night shift Dec. 18, putting an interior door panel on a Model S luxury sedan. It was his first day on that task, and no one had shown him how to position his body for it, he said.

As he stood up, Driskell’s foot got caught under the car as it moved down the assembly line, twisting his knee and dislocating his kneecap.

“I screamed like a little girl,” said Driskell, a production associate since 2015. “The guys around me immediately ran to my side.”

His supervisor contacted security, and Tesla sent him to the emergency room, where he received pain medication and a hard leg brace, Driskell said. On Dec. 21, he visited Tesla’s in-house health center, where a nurse filled out a Tesla Workers’ Compensation Work Status Form, which stated that Driskell’s injury prevented him from returning to work, according to medical records reviewed by Reveal.

“So the documentation was there that I was on an injury that kept me away from work,” he said. “It sounds like they recorded it later to fudge their numbers for the year.”

OSHA requires employers to keep a log of their employees injuries and illnesses for 5 years. That time period enabled OSHA to identify deliberate patterns of under reporting and to force changes, not just on those employers’ recordkeeping practices, but on their unsafe work practices. Accurate records are the main way workers and employers can identify health and safety problems in the workplace, and correct them.

These major recordkeeping violation cases were not just useless “red tape” or “paperwork.” These cases led to major improvements in workplace safety and health in the auto, meatpacking, petrochemical and other industries.

For the first 40 years of the agency’s existence, OSHA was able to consider that entire five year period a “continuing violation” and cite any violations during that entire period. Throughout those years, Republican and Democratic administrations have issued major citations for widespread recordkeeping violations. And these major recordkeeping cases were not just useless “red tape” or “paperwork.” These cases led to major improvements in workplace safety and health in the auto, meatpacking, petrochemical and other industries. You can read about a few examples here.

In 2012, a court overturned OSHA’s ability to cite 5 years back, but provided an option for the agency to issue a new rule explaining more clearly an employer’s ongoing obligation to keep accurate records for five years: the Volks rule that Congress them repealed, essentially taking away OSHA’s ability to cite long-term patterns of under reporting and use those violations as leverage to force employers to address chronic health and safety problems.

So, Tesla will likely get away with it. .

Cal/OSHA opened an investigation into Tesla the day after Reveal’s story published, saying it “takes seriously reports of workplace hazards and allegations of employers’ underreporting recordable work-related injuries and illnesses.” But the agency says it can’t cite an employer more than six months after the injury should have been recorded.

And it’s not just the bad companies, like Tesla, who are getting hurt by OSHA’s inability to cite these violations, according to former OSHA head David Michaels:

“Low-road employers … recognize that they could probably get away with incomplete recording of injuries because they’re unlikely to get caught,” said Michaels, currently a public health professor at The George Washington University. “That puts pressure on the ethical companies … because they have to compete with companies that are lying. So it starts a race to the bottom.”

Some members of Congress, like Rep. Rep. Mark DeSaulnier (D-Ca) are trying to change the law to allow OSHA to pursue chronic recordkeeping violators like Tesla.

“You’ve got to expand the period,” said DeSaulnier, who co-sponsored a bill to do so. “If an injury happened eight months ago and they didn’t report it, and it just got discovered this week, nothing’s going to happen with it. And that’s not right.”

The legislation stalled in the Republican-controlled Congress, but California state legislators should take it up, DeSaulnier said.

California, which runs it’s own state OSHA program, is not required to follow OSHA’s lead in this case, althouth CalOSHA has chosen to do so. Some state legislators are looking into changing California’s law.

And, of course, a change in who controls the US Congress might help as well.

Just sayin’.

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KEYWORDS: injuries workplace safety

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Jordan Barab served as Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017. Before that he worked for the House Education and Labor Committee, the Chemical Safety Board, the AFL-CIO, OSHA and AFSCME. He currently produces Confined Space, a newsletter of workplace safety and labor issues.