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Working In These Times

Thursday, Oct 28, 2010, 7:18 am

Recession’s Side Effects: Fewer Dead Workers—But GOP Poised to Gut OSHA

BY Art Levine

Amid all the misery spawned by the recession, there is one silver lining that has emerged, according to the Labor Department's Bureau of Labor Statistics: a sharp drop in workplace injuries and deaths due to accidents. As the BLS dryly noted when it first reported this phenomenon in August,

Economic factors played a major role in the fatal work injury decrease in 2009. Total hours worked fell by 6 percent in 2009...and some industries that have historically accounted for a significant share of fatal work injuries, such as construction, experienced even larger declines [16 percent] in employment or hours worked.

This week, the BLS reported a decline of 400,000 injuries in 2009 from the previous year, while Labor Secretary Hilda Solis and her Labor Solicitor Patricia Smith credited in part a changing culture of enforcement at the Department of Labor. Smith vowed to end a "culture of noncompliance," the BNA Daily Labor Report (subscription only) reported. As a result of reduced enforcement, “many employers developed a ‘catch-me-if-you-can’ attitude,’’ Smith said. “Our challenge is to change that attitude."

At the same time, though, the lingering high unemployment rate is fueling a rage at the Democrats and Obama that could lead to Republicans taking back nearly 60 seats or more in the House—and, workplace safety advocates say, that would be a disaster for an already under-funded and hobbled Occupational Safety and Health Administration (OSHA), part of the Labor Department.

A GOP-led House would—spurred by its Chamber of Commerce paymasters—certainly slash enforcement funds even as OSHA's current dedicated leadership is facing steep obstacles in achieving reform. The AFL-CIO's workplace safety director, Peg Seminario, told In These Times in a statement:

"When the Republicans were in power, they pushed for less regulation, less funding for agencies that protect workers' safety, and voluntary compliance and weaker enforcement for corporations who do break the law. Working people simply can't afford that kind of governing."

Fortunately, in commenting on the decline in accident reports that appears at first glance to be good news, Solis at least reminded the public of the problem in getting accurate data:

No worker should fear being injured or made sick for a paycheck. Complete and accurate workplace injury records can serve as the basis for employer programs to investigate injuries and prevent future occurrences. ... That is why my department's Occupational Safety and Health Administration is aggressively working to ensure the completeness and accuracy of injury data compiled by the nation's employers.

She had little choice in pointing out the flaws in injury reports: according to one congressional committee, as many as 69 percent of all workplace injuries and illnesses are not even being reported. A new OSHA program designed to improve reporting of accidents also appears to be widely ignored by industries, plagued by "anemic implementation," according to a report released this month by Public Employees for Environmental Responsibility.

That's on top of a legacy of weak penalties, limited enforcement scope and a scofflaw attitude among employers that costs lives, according to investigative reports by The New York Times, the Center for Progressive Reform and other OSHA critics.

"There's a massive under-reporting of fatalities and illnesses," says Gail Bateston, executive director of the California-based safety advocacy group, WorkSafe, due in large part to OSHA being starved for funds. In fact, she and others note, "OSHA only has enough inspectors to visit each workplace once in a century."

Still, advocates say, Solis acknowledged the reporting issue, and unlike previous administrations, didn't ignore it. Solis vowed,"We will continue to issue citations and penalties to employers that intentionally under-report workplace injuries."  

On top of that commitment, Labor Department solicitor Patricia Smith won kudos from the AFL-CIO for that major speech last week vowing to keep pressing enforcement of a range of workplace abuses and dangers. As the AFL-CIO Now Blog reported: "To strengthen enforcement, the Labor Department plans to step up criminal prosecutions against violators, file more actions across industries, especially for wage violations, and seek damages in wage and hour cases."

Unfortunately, there's still too much well-grounded fear among workers of being fired to honestly report either wage theft or dangers on the job. Indeed, as FairWarning, an online website focusing on corporate misconduct found in June, Smith's solicitor's office -- and her predecessors -- was lagging in filing legal actions against firms that fire safety whistleblowers. The report described the case of Neil Jorgensen,  who was fired by a plastics recycling firm in Idaho after he reported hazards at the company that led OSHA to cite the plant for multiple violations:

The OSHA law tells what should have happened next. It directs the Secretary of Labor to sue employers who discriminate against workers for reporting job-related hazards. However, when OSHA referred Jorgensen’s case to lawyers for the Department of Labor in December, 2004, they refused to pursue it.

“My employer got away with firing me without any consequences,” Jorgensen, 58, said in an interview.

It was not an isolated case. Over the years, scores of whistleblowers have seen their cases fall into a black hole because the Office of the Solicitor, the legal arm of the labor department, wouldn’t pursue them in court, undermining protections in the OSHA law. No matter that OSHA found the workers had been illegally demoted or fired; they were left with nowhere to turn. The situation has spurred calls for stronger protections for whistleblowers, which critics say are grossly inadequate.

From 1995-2009, regional solicitors filed 32 whistleblower lawsuits, while rejecting 279 other cases referred to them by OSHA, or almost nine times as many, according to government figures reviewed by FairWarning.

Workers whose cases are abandoned are not the only losers. According to current and former OSHA investigators, it’s harder to settle many other whistleblower complaints because employers know they won’t be sued.

“They (the solicitors) want cases that are slam dunks,’’ said a frustrated OSHA investigator who, like several others, talked to FairWarning on condition of anonymity. “They don’t want a case that we could possibly lose…That’s just a ridiculous standard.’’

Another investigator told of being laughed at when he asked the lawyer for an employer to produce a company document in a whistleblower case. “What are you going to do, take us to court?” he recalled the lawyer asking. “And we both laughed,” the investigator said, “because the odds of the solicitor taking the case to court are…slim to none.’’

Surely, then, the new Obama-approved Labor Department solicitor had reversed this sorry trend. Not so much, according to FairWarning

The solicitor’s office declined interview requests [In These Times note: what happened to Obama-era transparency?], but in an e-mail response said its record is better than critics say. Noting that along with 32 lawsuits, settlements were reached in 156 other cases referred by OSHA, the statement said solicitors litigated or settled about 40 percent of referrals over the 14 years, and more than 50 percent over the last five years.

“These are not numbers that should cause employers to feel comfortable engaging in safety-based retaliation,” the statement said.

OSHA and the solicitor’s office are backing legislation in Congress to allow workers to pursue retaliation complaints on their own if government lawyers won’t.

“We are enormously frustrated when we find merit in a case and the solicitors decide not to take that forward,” said Jordan Barab, deputy assistant Secretary of Labor for OSHA. “We also understand that the solicitors have the same resource issues that we have,’’ he said, “and that’s why we need a change in the law.”

But such changes in OSHA law—or additional funding—will become even more improbable as legislation to reform both OSHA and the inept Mine Safety and Health Administration remains stalled in Congress. That's a stalemate that will likely continue if the GOP takes over the House and cuts the Democrats' majority in the Senate.

So the sorts of promises Smith made last week may not ever have a chance to be fulfilled (via Daily Labor Report): Employers will be “more likely to do the right thing’’ if they know there are consequences for violations, Smith vowed.

Or, with Labor Department funding expected to be cut even further if the GOP wins next week, they may just continue to laugh in the faces of OSHA and other inspectors.

Art Levine, a contributing editor of The Washington Monthly, has written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate.com, Salon.com and numerous other publications.

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