Good Friday morning,
We saw Levon Helm rip it up last night at the Keswick Theatre outside Philadelphia. One of many highlights: Leadbelly’s “Bourgeois Blues,” with a line that nails many an employers’ feelings about the “OSHA with teeth” bill now moving through Congress:
“Home of the brave, land of the free
I don't wanna be mistreated by no bourgeoisie”
Let’s take a look at how DC conversations about the OSHA bill are getting more heated by the day (right in line with East coast weather)
OUT OF COMMITTEE
The House Education and Labor Committee approved July 21 legislation that would increase criminal and civil penalties for OSHA violations, strengthen whistleblower protections and speed up hazard abatement. The Robert C. Byrd Miner Safety and Health Act (H.R. 5663), passed on a largely party line vote of 30-17, would also provide stronger enforcement tools to the Department of Labor to enforce mine safety regulations.
During markup of the bill, committee Republicans complained they were excluded from the legislative process, and argued that the OSHA reform provisions, which they largely opposed, should be considered separately from reforms affecting the Mine Safety and Health Administration.
The legislation affecting OSHA would provide victims of accidents and their family members greater rights during investigations and enforcement actions. In addition, OSHA would be allowed to assert concurrent enforcement jurisdiction in states with OSHA state plans, if the state is failing to maintain protections for workers that is at least as effective as federal OSHA.
Committee Democrats approved a number of amendments to the original bill and the amended bill is not yet available. Companion legislation to H.R. 5663 has not been introduced in the Senate.
U.S. Secretary of Labor Hilda L. Solis issued a press statement touting the bill:
“There is a tremendous need for swift action on this legislation. I can think of no better way to honor the memory of Senator Robert C. Byrd and all of those workers who have died tragically on the job than to quickly pass this legislation. I hope the full House will take up this bill before the August recess.”
NAM TAKES EXCEPTION
From the National Association of Manufacturers’ blog Shopfloor:
“…the bill goes far beyond the regulation of mining to rewrite vast portions of the Occupational Safety and Health Act that affect all businesses. Rep. Cathy McMorris-Rodgers (R-WA) proposed an amendment to strike the far-reaching OSHA provisions in order to keep the legislation focused on addressing mine safety issues. Rep. Tom Price (R-GA) also offered an amendment to strip out one of the more egregious provisions of the bill, language that radically expands criminal penalties for certain OSHA violations via a nebulous system that requires simply a “knowing” standard. Such a standard is unheard of in safety laws and would significantly deter efforts by manufacturers to prevent accidents in the workplace.
“Manufacturers regularly perform safety audits of their workplaces in order to assess any potential hazards that may exist. However this provision would find “any company officer or director” subject to criminal penalties if an employee was seriously injured as a result of hazard identified in the audit – even if the employer was in the process of making the necessary changes to address the hazard.
“The bill has the potential to come up for a vote next week during House leadership’s push for manufacturing-oriented legislation. It seems counterintuitive, to say the least, to be pushing legislation that would burden employers with additional costs and more threats of litigation during a time when Members of Congress have publicly committed themselves to improving the competitiveness of our manufacturing economy.
“BILL HAS BIG HOLE”
Robert Heise, president of the Minnesota Associated Builders and Contractors, issued this statement regarding the OSHA bill:
”The bill uses language from the Protecting America’s Workers Act (H.R. 2067/S. 1590), which affects employers in all industries. The bill would amend the Occupational Safety and Health (OSH) Act by changing the penalty scheme for safety violations by altering the requirement for criminal liability from acts that are deemed “willful” to acts that are deemed only “knowing,” and broadening the definition of employer from “any responsible corporate officer” to “officer or director.”
”…under the bill, employers could be required to make immediate and costly changes in response to a citation without OSHA showing that there is an imminent threat and without being provided a hearing or judicial review of the inspector’s allegations.
”The problem is that most inspectors are not industry experts and lack knowledge or background in industry-specific safety practices and operations and that the increased emphasis on enforcement would take away the cooperative relationship most ABC members enjoy with OSHA.
“H.R. 5663, as written, will not improve safety, but will instead create greater cost and litigation, and hamper job creation. ABC members will continue to make their concerns known as the bill makes its way through Congress. “
OPPOSTION GETS ACTIVE
The Coalition for Workplace Safety (CWS), headed by the U.S Chamber of Commerce and the National Association of Manufacturers, protested the bill in a letter sent this week to Rep. George Miller, D-Calif., chairman of the U.S. House of Representatives Committee on Education and Labor, and Rep. John Kline, R-Minn., ranking minority member on the committee. More than 200 other organizations and their chapters signed the letter.
EMPLOYER GROUP SEES BILL’S POTENTIAL
ORC Worldwide, an environmental health and safety global consultancy based in D.C. with a client roster of many of the world’s largest companies, issued a generally favorable position piece on HR 5663.
“ORC has concluded that with a few modifications, the proposed amendments to the OSH Act have the potential to afford improved protections to at least those workers facing the most challenging workplace conditions in situations where their employers may be resistant to providing the most essential protections and meeting even the most basic compliance obligations.
“There are, unfortunately, still too many employers that do not sufficiently appreciate the legal necessity, the moral obligation or the business benefits of assuring a safe and healthful workplace – for those businesses, strong enforcement and assurances of worker rights may be necessary to incentivize compliance.
“Section 703. Correction of Serious, Willful, or Repeated Violations Pending Contest and Procedures for a Stay. This provision raises the most concerns for ORC and its members. It would require the period set in a citation for the abatement of any violation alleged to be serious, willful or repeated to commence upon the receipt of the citation by the employer and would disallow the suspension of the time set for abatement, triggered under the current OSH Act by the filing of a notice of contest, until the final resolution of the contested violation.
“ORC believes that at a bare minimum where an employer is contesting the appropriateness of the proposed date set for abatement or is denying the existence of any violation at all, the burden of getting a stay pending contest should be eased.
“The existing limited criminal sanctions contained in the OSH Act have been seldom invoked and are nearly universally recognized as inadequate in more than one respect. It is entirely reasonable to regard a willful violation that causes the death of an employee as a felony with appropriate associated penalties. However… we believe that a clarification of the intention behind substituting the word "knowingly" in HR 5663 for "willfully" in HR 2067, the Protecting America’s Workers Act as originally introduced, is necessary. In the absence of an explanation of this proposed change, there is a great deal of uncertainty around whether the use of the word "knowingly" effectively lowers the standard of proof for the prosecutor or whether the two words are legally equivalent.
“Similarly, the explicit addition of "any officer and director" to the definition of "employer" for purposes of identifying potential targets for criminal prosecution, absent a clarification of intent, raises significant fears among business managers that they could be subject to prosecution for merely being somewhere in the "chain of command" or having some kind of safety and health role in the company but having no knowledge of, or responsibility for, an event that causes an employee death. ORC urges, at a minimum, report language that would make clear that the Committee intends to limit potential liability to corporate officials who had knowledge of the existence of the condition that caused the injury or fatality and knew or had reason to know that the condition could result in serious injury or death, had the authority and ability to correct, or cause the correction, of the condition, and knowingly failed to exercise his or her authority to take appropriate action to correct the condition.
Today’s New York Times: “Senators Rap BP Official for Record of OSHA Violations”
Thursday Huffington Post: “The World’s Biggest Environmental Crisis Flows On”
Gallup: “Physical Health Key to Work Status, Wellbeing for Those 60-69 â€” Among those who are healthy, work status has little relationship to emotional wellbeing