By: David Macaray
Acknowledging the alarming polarization and gridlock of Congress, and the startling, rightward shift of the political spectrum, you regularly hear people declare that there is no way we could get something as ambitious as OSHA (Occupational Safety and Health Act) passed today, not in this dreadful climate.
Despite being signed into law in 1970 by a Republican (Nixon) administration, a regulatory act as progressive and comprehensive as OSHA would, today, be considered too invasive and too “federal” to have any chance of passing. And it wouldn’t just be those anti-government Republican advocates of “self-policing” leading the charge. Indeed, legions of gutless, sharp-eyed Democrats would join them.
On the bright side, it can be argued that this polarization and gridlock are precisely what prevent OSHA from being repealed outright. But the fact that it hasn’t been repealed doesn’t mean OSHA is doing the job it was intended to do. Incredibly, in over 40 years there has been only onemonetary increase in penalties, despite inflation. Predictably, this has led unscrupulous employers to choose being hit with a miniscule fine rather than investing in a safer workplace. The fallout of this arrangement is that each year more than 5,000 American workers are killed on the job.
Which is why a bill (HR 2067), known as PAWA (Protecting America’s Workers Act) has been introduced in Congress. Its purpose is to basically modernize and upgrade OSHA—to equip it with the tools necessary to ensure safe work environments—by
increasing fines and penalties, expanding jurisdiction, raising certain misdemeanors to felonies, extending reporting deadlines, punishing repeat offenders more severely, etc.
In his March 16, 2010, testimony before the Subcommittee on Workforce Protections, and the Committee on Education and Labor, David Michaels, Assistant Secretary for Occupational Safety and Health, made the case for passage of PAWA, arguing that OSHA was desperately in need of help.
According to Michaels, despite tales of crushing, debilitating fines, the average OSHA penalty is around $1,000. That’s it: a thousand bucks. More revealingly, he notes that “the median initial penalty proposed for all investigations in cases where a worker was killed (as of FY 2007) was just $5,900.” Again, in more than 40 years, OSHA has had only one increase in monetary penalties. And because the whole point of a monetary penalty is to serve as a deterrent, it’s no surprise that fatalities continue to occur.
Other regulatory agencies have far greater latitude than OSHA in assessing fines. For instance, the Dept. of Agriculture can levy $130,000 on milk processors who willfully violate the Fluid Milk Promotion Act The FCC can fine a TV or radio station as much as $325,000 for indecent broadcasts. The EPA can hit companies with $270,000 for violations of the Clean Air Act, and penalize them $1 million “for attempting to tamper with the public water system.”
Yet, as Michaels points out, “the maximum civil penalty OSHA may impose when a hard-working man or woman is killed on the job—even when the death is caused by willful violation (my italics) of an OSHA requirement—is $70,000.” That’s a mind-blowing statistic. But if $70,000 is the maximum penalty, even for “willful and repeated violations,” what’s the minimum penalty for such violations? Answer: $5,000.
While the following is clearly an apples-and-oranges comparison, it’s worth noting. Per the terms of the Montreal Convention of 1999 (formally known as the “Convention for the Unification of Certain Rules for International Carriage by Air”) the family of a person killed in an airline crash gets about $175,000, with no quibbles. That $175,000 happens to be the figure the carrier signatories were willing to pay.
But if you’re not lucky enough to die in a plane crash, if you die at work instead—say, if you slip and fall into a baling machine and are crushed to death—you’re worth only about $5,900. The astounding part of this isn’t the paltry sum of $5,900. The astounding part is that employers complain bitterly about the extent to which OSHA interferes with their businesses, as if American commerce were being systematically terrorized by this villainous safety agency.
Another astounding part of this is that the media continue to buy that story. You never read mainstream accounts where a ridiculously lowball OSHA fine is the central story. You never read about some guy who dies on the job, and OSHA fines the employer only $1,400, and that measly pay-out becomes the story’s angle.
Instead, the media do the exact opposite; they cherry-pick; they glorify; they use as an example of OSHA’s “dominion” the recent multi-million dollar fine of BP (British Petroleum), as if that anomalous levy were representative. But as Michaels notes in his testimony, since passage of OSHA in 1970, “fewer than 100 cases have been prosecuted [criminally] while more than 300,000 workers have died from on-the-job injuries.”
Although PAWA could go a long way toward rectifying these glaring inequities, it’s given little chance of passing. In any event, workers shouldn’t look to Congress for protection. In truth, the only realistic hope they have of working in a safe industrial environment is to join a union. The statistics are overwhelming. Union jobs are clearly safer than non-union jobs. And given that a union’s sole concern is the welfare of its members, why wouldn’t they be?