OSHA Enforcement
The Next OSHA: White Paper Pushes for OSHA Reform

The Next OSHA: White Paper Pushes for OSHA Reform

The Center for Progressive Reform publishes its recommendations for OSHA reform.

A new white paper from The Center for Progressive Reform (CPR) proposes some wide-sweeping OSHA reforms to better protect the safety and health of American workers, including increasing criminal and civil penalties, enabling injured workers to sue employers directly, supplementing OSHA’s budget through user fees and more.

CPR pointed out that updates to the decades-old Occupational Safety and Health (OSH) Act are long overdue, especially considering that 4,500 workers continue to lose their lives every year.

“Trying to protect workers with the same 40-year-old law is just not good enough for the modern workplace,” said report co-author Thomas McGarity, a CPR board member and professor at the University of Texas School of Law. “Workers are much safer today than they were decades ago, but thousands still die from workplace injuries every year. Congress needs to let go of the status quo and enact broad reforms that will save lives.”

The white paper, “The Next OSHA: Progressive Reforms to Empower Workers,” addresses what CPR calls OSHA’s “small budget;” limited inspectors (one inspector for each 60,000 workers covered by the agency); inadequate penalties (current law allows OSHA to penalize an employer $7,000 for a serious violation, or $250,000 for a willful violation that kills a worker – fines CPR says are not adequate deterrents for negligent employers); a weakened regulatory process; and more.

CPR offers the following recommendations for OSHA reform:

Allow harmed workers to directly sue employers. Under current law, workers can’t directly commence legal action against an employer breaking the law; they must make a formal complaint to OSHA and rely on OSHA to ensure compliance with the law. While OSHA generally is responsive to workers’ complaints, CPR said, workers should not have to rely on an underfunded agency to redress serious health and safety issues. Many other existing health and safety laws already allow such suits.

Increase criminal penalties. If an employer willfully violates an OSHA standard and causes a worker’s death, the crime is a misdemeanor carrying a maximum of 6 months in jail. Willful violations of the law that lead to a worker’s death are tantamount to homicide, and should be treated as such, according to the white paper. But the current minimal penalty creates little incentive for federal prosecutors to pursue criminal prosecutions in light of their resource constraints and competing incentives to pursue other cases that involve long prison-term felony cases. Congress should authorize felony convictions, multi-year jail terms and large financial penalties for the individual corporate officers who are responsible for creating conditions that lead to the death or serious injury of a worker, the white paper stated.

Apply the responsible corporate officer doctrine to violations of the OSH Act. The doctrine enables the government to hold high-level corporate officials criminally responsible for violations of public health and welfare statutes. It has been used in several contexts, but not yet to protect worker safety. No change to the law is required.

Increase civil penalties. OSHA’s penalty limits have not been updated for 2 decades and are not indexed to inflation. As a result, the deterrence effect of the penalties has decreased over time. Congress should increase the maximum penalties and index them to inflation, CPR said.

Allow OSHA to issue administrative compliance orders. OSHA should be authorized to order employers to immediately eliminate hazardous conditions; the delay in waiting for government attorneys to build and prosecute criminal cases leaves workers in harm’s way, CPR said.

Strengthen education and training requirements. The education and training programs available to U.S. workers are a “haphazard patchwork,” according to the white paper. A regulatory program should more precisely delineate rights, responsibilities and guidelines.

 

Let workers participate in enforcement proceedings. Workers need greater opportunities to be a part of the negotiations that affect settlement agreements between OSHA and employers cited for violations, CPR said. Currently, workers and their representatives only can challenge one aspect of an agreement, the length of time allowed for abating hazards. Congress should allow workers to object to any terms of the deal that affect workers’ health and safety.

Require corporate officers to report dangers to workers. Congress should require corporate officers to notify workers when they have knowledge of imminent dangers at a company worksite.

Increase OSHA’s budget through user fees. Many agencies, such as FDA, receive part of their funding from fees paid by regulated parties. Congress should adopt a user fee system to support those parts of OSHA that bring a direct benefit to employers. The Voluntary Protection Program (VPP) should be the start, according to CPR – the program costs OSHA money and expertise but delivers benefits mainly to employers in the form of reduced workers’ compensation premiums.

Eliminate the split-enforcement model. Unlike most agencies, OSHA does not have full enforcement power in its domain; it shares this responsibility with a Review Commission. CPR described this model as unnecessary and less effective and recommended that Congress shift adjudicatory power into the Department of Labor.

Revamp the rulemaking process. The process should be updated to give workers a stronger voice in setting priorities, restructured to ensure balanced access and input to the process, and streamlined to allow for faster finalization of new rules.

The Center for Progressive Reform is a nonprofit research and educational organization dedicated to protecting health, safety and the environment through analysis and commentary. The white paper was written by CPR Member Scholars Martha McCluskey, Thomas McGarity, Sidney Shapiro, and Rena Steinzor and Senior Policy Analyst Matthew Shudtz and can be downloaded as a PDF at http://www.progressivereform.org/articles/Next_Generation_OSHA_1207.pdf.

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