Blogger Celeste Monforton, a former colleague of OSHA boss Dr. David Michaels at George Washington University, wrote on the blog, “The Pump Handle” that “the subcommittee on Workforce Protections of the House Education and Labor Committee heard testimony (March 16) on the “Protecting America’s Workers Act” (PAWA) (H.R. 2067) from OSHA assistant secretary David Michaels. In the Obama/Solis’ Administration’s first official statement about the legislation, Dr. Michaels said they: “strongly support the goals of PAWA”
“Decoded, that means they are OK with some of the provisions, but others are giving them heartburn or worse,” wrote Monforton. “Notably, Jonathan Snare testifying on behalf of the US Chamber of Commerce (and former GW Bush/DOL office (acting OSHA chief and acting Solicitor of Labor)) said “the goals behind PAWA are laudable.”
“Other than that, the written statement and responses to questions from Mr. Snare were predictable,” according to Monforton: The chamber contends penalties will not solve the problem, enforcement alone will not solve the problem, and ‘OSHA needs a balanced approach,. blah, blah, blah,” said Monforton.
“The best part of the hearing,” according to Monforton, came when Eric Frumin of Change to Win challenged some of the chamber’s assertions. The former acting OSHA chief and acting solicitor suggested that the legislation was overreaching, when the problem is simply “the conduct of a few outlier employers.” Mr. Frumin asked if Cintas, BP, McWane, Xcel Energy, and others are mere outliers.
Dr. Michaels said PAWA makes much needed increases in both civil and criminal penalties for every type of violation of the OSH Act and would increase penalties for willful and repeat violations that involve a fatality to as much as $250,000. … These increases are not inappropriately large. … Simply put, OSHA penalties must be increased to provide a real disincentive for employers not to accept injuries and worker deaths as a cost of doing business.”
Monforton wrote that Dr. Michaels “also appeared to endorse the amendments to the criminal provisions of the OSH Act.” He said: “…serious violations of the OHS Act that result in death or serious bodily injury should be felonies like insider trading, tax crimes, customs violations and anti-trust violations.”
Michaels also endorsed the proposed burden of proof from “willfully” to “knowingly” which is consistent with the term used in other federal environmental and regulatory crimes, according to Monforton.
Dr. Michaels offered support for most of the whistleblower provisions of PAWA saying: “These legislative changes in the whistleblower provisions are a long-overdue response to deficiencies that have become apparent over the past four decades.”
According to Monforton, he did express “reservations” about the option of allowing employees in OSHA State Plan States choosing to file their complaint with federal OSHA or their state OSHA. He suggested: “…it would be a signficant drain on OSHA resources and those of the Solicitor of Labor.”
Dr. Michaels also suggested the Administration could support coverage of public sector employeees – that is, the 10 million workers employed by state and local governments (e.g. teachers, city maintenance workers, nurses, etc.) in 24 States who are not covered by OSH Act protections. The OSHA chief qualified his statement with: “Realizing the fiscal difficulties that many States now face we would like to have further discusssions with the committee about the details of this section.”
Dr. Michaels addressed the “Victim’s Rights” provisions of the legislation, saying:
“PAWA includes a number of sections that would expand the rights of workers and victims’ families. For the past 15 years OSHA has informed victims and their families about our citation procedures and about settlements, and talked to families during the investigation process. PAWA would ensure this policy is strengthened and made permanent, as well as increase the ability of victims and family members to more actively participate in the process.”
Dr. Michaels expressed this reservation about the proposed victim’s rights provisions:
“…we do believe that clarification is needed of the provisions allowing victims or their representatives to meet in person with OSHA before the agency decides whether to issue a citation, or to appear before parties conducting settlement negotiations. This could be logistically difficult for victims and OSHA’s regional and area offices, resulting in delays in the negotiations and ultimate citation, which hurt the victim in the long run.”
According to Monforton, “Dr. Michaels’ poor choice of words pales in comparison to the position of the U.S. Chamber of Commerce (the ‘world’s largest business federation representing the interests of more than three million businesses’) on the proposed Victim’s Rights provisions of PAWA. Said former OSHA boss Snare: “Given the legal nature of these proceedings, there does not appear to be much value to this presentation other than to sensationalize presumably already emotional and sensitive matters.”