Federal OSHA signals shift to aggressive enforcement

By Lisa Mascaro (contact)

Friday, May 1, 2009 | 2 a.m.

Washington — As Congress entertains legislation to increase penalties on employers violating workplace safety rules, the Obama administration’s Labor Department is moving ahead with plans to target and prosecute big companies that are repeat safety law offenders.

The head of the Occupational Safety and Health Administration testified before a House panel Thursday that he has instructed staff to suspend a voluntary protection program launched under the Bush administration to free up resources for enforcement.

OSHA also plans to work with the Justice Department on better prosecuting employers that repeatedly violate safety laws, said Jordan Barab, acting head of the agency.

Congressional Democrats and the Labor Department are moving forward to beef up workplace safety rules that critics say were weakened by the Bush administration.

The changes are important for Nevada, where the Las Vegas Sun detailed safety violations and lax enforcement involved in construction deaths on the Las Vegas Strip. Twelve workers died over an 18-month period until safety conditions began to improve last June.

Democratic Rep. Lynn Woolsey of California convened Thursday’s hearing after a recent audit by the Labor Department’s inspector general found a 5-year-old enforcement program targeting recalcitrant companies was not fulfilling its mission.

“We need to know why the program is not working and what we can do to fix or revamp it,” said Woolsey, chairman of the House Education and Labor Committee’s subcommittee on workforce protections.

Among those testifying was Jesus Rojas, who said his stepfather, Raul Figueroa, was killed in 2008 in southern Florida in a maintenance accident when the hydraulic arm of a truck pinned him against the cab.

Woolsey said the company, Waste Management, has a history of safety violations. The inspector general found the company should have been targeted by the Enhanced Enforcement Program, but was not.

“If the company had been properly monitored ... would Mr. Figueroa be with us today?” Woolsey said.

She has introduced legislation, the Protecting America’s Workers Act, that would increase fines on companies that violate safety laws and impose a new criminal felony category. The bill also would create a method for injured workers and families to participate in the penalty assessment process, among other provisions.

Often, company fines are reduced during private negotiations between employers and OSHA, without family involvement. That occurred with most of the Las Vegas deaths.

A similar bill is expected in the Senate, possibly streamlined legislation focused on fines and victims’ rights that may draw more Republican support than a broader bill.

Separately, Rep. Phil Hare, D-Ill., introduced a bill that would, for the first time, require large employers or those with multiple sites to report every workplace illness, injury or fatality, which supporters say would shine a bright light on company records.

As the legislation is considered on the Hill, OSHA is taking several steps to beef up enforcement. Labor Secretary Hilda Solis announced a new program this week targeting severe violators.

At Thursday’s hearing, Barab testified that the Severe Violators Inspection Program will be a comprehensive revision of the existing Enhanced Enforcement Program.

The Severe Violators Inspection Program will focus on large companies, and “will ensure that recalcitrant employers not meeting their obligations under the OSHA Act are targeted for additional enforcement action.”

Even though Nevada and many other states operate their own OSHA programs, regulations the states use must be as strict as those imposed federally.

Some believe the power of the federal OSHA’s bully pulpit will set a tone in the states.

The Bush administration’s Enhanced Enforcement Program began in 2003 after a series of stories by The New York Times and Frontline exposed what Woolsey called “horrendous” working conditions at McWane Industries — a major manufacturer of water and sewer pipes with facilities across the country.

The series found that nine workers were killed and 4,600 were injured at company facilities — what The New York Times called one of the worst safety records in the United States.

Yet the inspector general’s audit released in March found that the Enhanced Enforcement Program failed to adequately identify and inspect major companies with repeat violations.

Inspector General Elliott Lewis testified Thursday that “it is essential that OSHA target its limited resources to inspect workplaces with the highest risk of hazardous conditions that have greater potential to cause injuries and fatalities.”

The U.S. Chamber of Commerce agreed that OSHA should focus on the worst offenders, saying even if OSHA doubled its army of inspectors, only 1 percent of the nation’s 7.2 million work sites would be visited annually.

Yet the chamber took issue with the audit’s conclusion that subsequent deaths could have been prevented had the program been working properly.

Rep. Howard “Buck” McKeon, the ranking Republican on the full committee, said OSHA should focus resources on the “bad apples ... Those are the companies we should be going after.”

“This is really a serious subject,” McKeon said. “We have to be overly careful that we don’t politicize this issue, that we be careful that we don’t attack companies involved.”