ORC WORLDWIDE POSITION STATEMENT
TITLE VII OF H.R. 5663,
THE MINER SAFETY AND HEALTH ACT OF 2010
ORC Worldwide is a global human resources consulting firm whose Washington, DC office has for nearly 40 years provided a broad array of specialized occupational safety and health services to businesses and other organizations. Currently, approximately 120 leading global corporations in more than 20 industry sectors are members of ORC’s Occupational Safety and Health (OSH) networks. The focus of these networks is to help ORC members achieve safety and health excellence by promoting effective occupational safety and health programs, benchmarking and sharing best practices, and creating new strategies and tools to improve safety and health performance. ORC is also an industry voice on national and global safety and health policy issues. The activities of ORC’s OSH networks are based on the premise that providing safe and healthful working conditions is the mutual concern of employers, workers and government agencies and that cooperation and collaboration among these key stakeholders is essential to finding solutions to safety and health issues.
It should be noted that companies that are members of ORC’s OSH networks have provided information, opinion and advice to ORC in the development of its positions contained herein; however, these comments are solely those of ORC and may differ from the views and comments of individual member companies. ORC’s comments below are exclusively focused on the provisions of Title VII of HR 5663 and do not extend to the other provisions of the legislation.
General Comments on Title VII of HR 5663
ORC has closely followed the content and progress of the various OSHA reform efforts that have been introduced in Congress over the past few decades, culminating in this most recent bill in the House of Representatives, HR 5663. ORC is mindful that with the exception of a one-time increase in the civil penalty maximums in 1991, the Occupational Safety and Health (OSH) Act of 1970 has not been significantly amended in the nearly 40 years since its original enactment. As ORC observed in its White Paper issued in November 2008, entitled Breaking the Cycle: New Approaches to Establishing National Workplace Safety and Health Policy, “the almost 40 year old Act has been remarkably durable in its breadth, adaptability and overall effectiveness as a framework for protecting workers.”
On the other hand, ORC also noted in its White Paper that “for the 21st Century workplace, [the Act] has become in several significant ways an outdated model for protecting today’s workers from occupational safety and health hazards.” HR 5663, like its predecessors, would do little to modernize the basic framework of the OSH Act to meet the safety and health challenges of the 21st Century workplace and workforce. In addition, ideally, ORC would have liked to have seen Congress go beyond focusing primarily on the enforcement-related provisions of the Act and also seek to provide OSHA with additional incentives, tools and resources to assist the vast majority of employers that are earnestly interested in protecting their workers but that may lack the capacity and competencies to do so effectively.
However, despite the limited focus and scope of HR 5663, ORC has concluded that with a few modifications suggested below, 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.
Comments on Selected Provisions of Title VII
ORC’s has the following comments on specific provisions of Title VII:
1. Section 701. Enhanced Protections From Retaliation. The current employee protections from retaliation contained in the OSH Act have not been updated since the passage of the OSH Act in 1970 and contain administrative impediments that limit their effective application. ORC understands the need to update these provisions to be consistent with improvements contained in more recent “whistleblower” statutes.
The new provision, which would protect an employee from retaliation for, among other things, “refusing to perform the employee’s duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee or other employees,” is a significant change from the current state of the law, which allows employees to refuse work when faced with an imminent danger of death or serious injury. While the new provision may certainly be appropriate in most instances, ORC notes that the provision’s broader scope may also present the opportunity for potentially unwarranted claims. It is our hope that, as this section is implemented, oversight will be provided to ensure the suitable use of this protection.
2. Section 702. Victims' Rights. In recent years, OSHA has gradually provided, through its administrative procedures, injured workers and family members of injured and deceased workers increasing access to compliance activities associated with the injury or fatality. This section of the bill would provide victims enhanced rights of participation in OSHA inspection and citation modification activities as well as proceedings before the Occupational Safety and Health Review Commission (Review Commission). ORC respects the appropriateness of a role for victims in these forums and for the most part, the bill appears to balance the desirability of involvement and input by the victims both with the legal and procedural rights of the actual parties to the proceedings and with the importance of not unduly delaying or otherwise interfering with the resolution of the matter. However, one new provision in the current bill -- proposed section 9A(e)(2) -- does cause some concern, namely that it may be construed to require the Review Commission to afford evidentiary status ("due consideration") to "information" provided by a victim to the Review Commission, without the parties to the proceeding having the opportunity to provide appropriate rebuttal. It should be made clear that such a construction is not intended and that information provided by a victim may not be relied on as evidence.
3. 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. The bill would follow procedures similar to those applied under the Federal Mine Safety and Health Act and allow an employer cited for a serious, willful or repeated violation to file a motion for a stay of the abatement period with the Review Commission, which would review the stay motion on an expedited basis, applying criteria similar to those necessary to obtain preliminary injunctive relief in other legal proceedings. Specifically, the Review Commission would consider whether the employer has a substantial likelihood of success on the merits of the contested citation; whether the employer will suffer irreparable harm absent a stay; and whether a stay will adversely affect the health and safety of workers.
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. Specifically, there is no reason to require a showing of “irreparable harm” to the employer, especially if employees are not being exposed to the alleged hazard through some alternative or interim action pending the resolution of the citation. Obtaining a stay in these circumstances should not entail the kind of high burden necessary to obtain preliminary injunctive relief.
4. Section 705. Civil Penalties. ORC supports the proposed increases in civil penalty maximums, the civil penalty "enhancements" (except as discussed below) for willful and repeat violations resulting in the death of an employee, and the periodic inflation adjustment of the statutory penalty amounts. The proposed new civil penalty maximums, in effect, amount to a one-time cost of living "catch-up" over the 19 years since the penalty amounts were last increased by Congress. It is important that civil penalties assessed for violations be a credible partial deterrent (although penalties alone are far from a sufficient incentive for compliance) to future violations.
The reservation ORC has about the enhanced penalties for fatalities is the use of the phrase "caused or contributed to" the death of an employee in section 705(a)(1)(C). In the absence of a definition or clarification of the term "contributed to," the agency may rely on meanings of the same term in other contexts, e.g., injury and illness recordkeeping, where even a slight contribution to an injury or illness by factors related to work would be deemed a sufficient basis to record the case. In order to justify an enhanced civil penalty of this magnitude, the violation should be required to have “caused or directly and substantially contributed to” the death of an employee.
5. Section 706. Criminal Penalties. 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, with respect to addition of the phrase "contributed to" as a basis for criminal prosecution, ORC has even greater concerns than those expressed above in the context of civil penalties. Once again, a direct and substantial “contribution” by the violation to the death (or serious bodily harm) of an employee should be required in order to justify criminal liability. We also 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. Based primarily on case law developed under federal environmental statutes that have applied similar terms, 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.
Finally, the proposed expansion of criminal liability to cases of knowing violations that cause or contribute to "serious bodily harm" to an employee raises important policy questions about the most effective use of already scarce OSHA resources - criminal investigations require substantial time and effort on the part of specially-trained OSHA compliance staff. However, ORC is pleased to see that the committee has reverted to a more limited definition of “serious bodily harm” than that contained in the first “discussion draft” released following the introduction of HR 2067.