Hearing of the Senate Health, Education, Labor, and Pensions Committee on Effect of OSHA Penalties on Workplace Safety
KENNEDY FIGHTS FOR WORKPLACE SAFETY
Senate Health, Education, Labor, and Pensions Committee Hearing
Today, Senator Edward M. Kennedy, Chairman of the Health, Education, Labor and Pensions Committee, held a hearing on the effect of OSHA penalties on workplace safety, examining how OSHA's weak penalties in workplace fatality cases fail to deter violations.
Chairman Kennedy also released a report on OSHA penalties in fatality cases, focusing on the monetary penalties, criminal sanctions, and the impact on the families of workers.
Chairman Kennedy said, "The report's findings demonstrate serious flaws in our health and safety laws and OSHA's enforcement of them. Congress needs to close the gaps in the law, strengthen its provisions, and insist on strong enforcement by OSHA. I hope we can do so as soon as possible to prevent the deadly workplace accidents that occur so often today."
Key findings of the report include:
OSHA's Penalties For Safety Violations That Result In Worker Fatalities Are Flawed.
* Criminal and civil enforcement tools are weak and ineffective.
o In the criminal context, the law permits a maximum prison sentence of six months for willfully violating a safety standard or regulation which leads to the death of a worker. By contrast, the maximum sentence for mail fraud is 30 years.
o In the civil context, OSHA is empowered to impose a $70,000 maximum penalty. By contrast, the Department of Commerce is authorized to impose a $325,000 penalty for a violation of the South Pacific Tuna Act, the EPA is authorized to impose a penalty of $270,000 for a violation of the Clean Air Act, and the Department of Agriculture is authorized to impose a $130,000 penalty for a willful violation of the Fluid Milk Promotion Act.
o The total penalties that OSHA actually imposes in fatality cases are far below these maximums. In 2007, the median initial penalty was $5,900 and the median final penalty (after negotiation and review by OSHA supervisors) was $3,675.
* Even within its meager civil penalty authority, OSHA supervisors consistently reduce - by almost 40% - penalties initially imposed on employers in fatality cases. For all fatality investigations in fiscal year 2007,
o The median final penalty of $3,675 was 38% lower than the penalty initially assessed by the inspector.
o For "willful" violations in fatality cases, the median final penalty was $29,400, less than half the statutory maximum and a 58% reduction from the median penalty initially imposed by the inspector.
o OSHA supervisors reduce civil penalty amounts even more for employers who contest the penalty, effectively rewarding resistance. Fighting the agency gets an employer an additional "contest discount" of 300%.
* OSHA supervisors also routinely reduce the severity classification of safety violations in fatality cases. For example, more than a fifth of all willful penalties initially cited by OSHA inspectors in 2006 fatality cases were later downgraded by OSHA supervisors.
* OSHA fails to fully utilize its limited criminal referral authority. Only 21.1% of eligible cases were referred to authorities for possible prosecution from 2003-2007, and of those eligible cases, the Department of Justice chose to pursue only 4.2%.
Employers Do Not Pay, and OSHA Fails to Collect, Almost Half of Assessed Penalties In Fatality Cases.
· $27.5 million in penalties involving the death of more than 600 workers since 2004 remain unpaid. OSHA has stopped trying to collect almost half of these penalties.
OSHA Does Not Effectively Focus On the Worst Employers Who Commit Serious Safety Violations.
· The Enhanced Enforcement Program, introduced in 2003 to target the worst safety violators, has not been effectively implemented. OSHA fails to conduct follow up inspections of the vast majority of employers targeted after a fatality.
(As Prepared for Delivery)
This morning our committee considers the important issue of keeping the hard-working men and women of America safe on the job.
Last year, 5,840 workers went off to work and never came back. They were killed on the job. Each of these deaths is a tragedy for workers and their families. We should be doing more to respond to these tragedies by granting greater protection for the nation's workers. Unfortunately, OSHA seems to be doing less.
Julie Primeau's family in Fitchburg, Massachusetts is an example of a family changed forever by such a tragedy. Last year, her brother Christopher, a commercial diver, was killed on the job when a nine-ton piling came loose and crushed him. As Julie learned later, two other divers had previously been killed working for the employer.
Julie and her mother were devastated by Christopher's death. But their grief was intensified by OSHA's failure to prevent it after the two earlier deaths.
My office has issued a report today that OSHA is not living up to its responsibility for investigating dangers in the workplace and preventing them. The report shows, for example, that the median penalty for a workplace fatality last year was only $3,675. In other words, in cases investigated by OSHA where workers were killed on the job, half of all employers were fined $3,675 or less. Workers' lives are obviously worth far more than that. Employers who ignore their employees' safety should pay a penalty that will force them to change their negligent ways. It's the only realistic way to save lives. A mild slap on the wrist isn't enough.
The maximum civil penalty for a safety violation is only $70,000. By comparison, violating the South Pacific Tuna Act of 1988 can lead to a fine of $325,000. Protecting tuna fisheries is important, but so is safeguarding other workers' lives, and we need to raise OSHA's penalties if we hope to deter unsafe working conditions.
Unbelievably, the report also found that OSHA routinely downgrades the severity of violations or withdraws the violations entirely in the course of its investigating, and often doesn't bother to collect the penalties it issues. In many cases where a worker is killed, the employer never has to pay anything. How can we expect workplaces to become safer if OSHA won't bother to collect fines from employers who break the law?
Also, OSHA can't effectively use the threat of prison as a deterrent, because the maximum criminal penalty when an employer willfully violates workplace safety laws and a worker dies is six months in jail. If you improperly import an exotic bird, you can go to jail for two years. If you deal in counterfeit money, you're looking at 20 years. But if you gamble with the lives of your employees and one of them is killed, you risk only 6 months in jail. No wonder that of the 10,000 fatalities OSHA has investigated in the past five years, only ten criminal prosecutions have resulted.
That's why so many companies treat safety violations as just another cost of doing business. What frustrates families like Julie Primeau's is the knowledge that these tragic and needless deaths will continue.
If we're serious about improving workplace safety, we need to raise penalties and create a serious threat of criminal prosecution in the worst cases. The point of a penalty is not retribution, but deterrence. Deterrence is the only way to solve this problem. OSHA can't detect and correct every violation. It would take OSHA 133 years to inspect every worksite in its jurisdiction. Instead, we need a law with teeth, so that employers will be vigilant about complying with safety laws.
That shouldn't be controversial. Experts from across the political spectrum agree, including Gerry Scannell, who led OSHA during the first Bush Administration. As he told our Committee earlier this month, we need to increase the penalties and strengthen the criminal sanctions, or we'll never persuade CEO's to take OSHA and worker safety seriously.
A number of us have introduced the Protecting America's Workers Act to give OSHA the support it needs to change employers' behavior. It makes reasonable increases in civil penalties - especially in the most serious cases. It also creates a strong criminal penalty, including the possibility of felony charges and significant prison terms.
Finally, we must help families frustrated by being left out of the process. Every year, too many families get letters like the one the Primeau family received. They feel excluded and disrespected. Senator Isakson and I offered an amendment to the budget this year to require OSHA to give families a voice.
The problem of workplace fatalities isn't going away. As the economy continues its decline, the pressure on America's workers to increase productivity is growing. Achieving higher production often mean cutting corners on safety. We all know where that leads - more accidents, more injuries, and more deaths. Even in these difficult economic times, workers deserve to have their safety put first.
This Committee is committed to worker safety. We have an outstanding panel of witnesses here today, and I look forward to their testimony.