Occupational Safety and Health Small Employers Access to Justice Act, 2005
OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT OF 2005 -- (House of Representatives - July 12, 2005)
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Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, this is the worst of all of the OSHA bills before us today. It would treat OSHA differently than any other Federal agency. Under the Equal Access to Justice Act, if any agency's position is not "substantially justified," the government must pay the opposing party's attorneys' fees. This bill says OSHA must pay attorneys' fees to a prevailing employer, even if OSHA's actions were reasonable. Under this bill, OSHA will find itself paying the attorneys' fees of repeated safety violators whose penalties were reduced on a technicality.
The real-life example of an employer by the name of Eric Ho in Houston illustrates the problem here. Eric Ho hired undocumented workers and exposed them to high levels of asbestos, and this represents the kind of case that could not be tolerated by OSHA. Even after a city worker issued a stop-work order, Eric Ho secretly had the workers stay on the job. Eric Ho's workers ate at the site. They worked throughout the night, and some even slept at the site. Ho then directed the workers to tap into what would prove to be a gas line, and there was an explosion which resulted in one contractor and two workers being seriously injured. In the end, OSHA cited Eric Ho for ten serious violations and 29 willful violations. In turn, Eric Ho challenged OSHA and a divided OSHA review commission eventually downgraded Eric Ho's citations. Although Eric Ho was sentenced to prison in a prosecution led by the Environmental Protection Agency, because they had jurisdiction also. Eric Ho violated the Clean Air Act and H.R. 742 would require that this man, who had been convicted by one Federal agency, be awarded attorneys' fees because of OSHA's actions. OSHA would have to award attorneys' fees to Eric Ho. In this instance, H.R. 742 would use taxpayer funds to reimburse a convicted felon on OSHA technicalities.
Under the Equal Access to Justice Act, when a Federal agency is not substantially justified and cites an employer and the employer prevails in judicial proceedings, the employer is reimbursed for his attorneys' fees and expenses by the U.S. Treasury funds. Under this bill, H.R. 742, OSHA would be required to reimburse from its own budget an employer who prevails in judicial or administrative proceedings, even when OSHA was "substantially justified" in issuing its initial citations. Now, they say, still, they are not trying to chip away at the effectiveness of OSHA, destroying OSHA bit by bit. OSHA would have to pay out of its own budget. Whereas, under the other circumstances that are similar, U.S. Treasury funds are used. Thus, any time an OSHA staffer conducts an inspection and discovers serious safety violations, that inspector would have to second-guess himself or herself.
OSHA's inspectors will be forced to perform many mental gymnastics, trying to predict whether a citation, no matter how justified, might have the slightest chance of being adjusted or overturned on a technicality in review proceedings.
Mr. Speaker, Members of both sides of the aisle agree that under its current budget and staffing configuration, it would take OSHA 108 years, 108 years to inspect all of the workplaces in America.
Now, H.R. 742 would have the effect of tying the hands of OSHA inspectors behind their own backs, causing them to analyze each and every citation in the most serious minute detail.
In a sense this bill calls for OSHA inspectors and supervisory staff to become forecasters. They will be required to predict any and all possible scenarios in which a specific citation might be reversed on a technicality. In the meantime, the founding purpose of OSHA, to assure, quote, "every working man and woman in the United States safe and healthful working conditions," that would be more or lose forgotten.
Mr. Speaker, there are Members on the other side of the aisle who would have us believe that every OSHA inspector is like police inspector Javert in Victor Hugo's famous novel "Les Miserables."
These Members compare every business owner to Hugo's noble character Jean Valjean, hounded by OSHA's Javertian inspector for having innocently slipped up on one point, one miniscule point of an obscure and archaic OSHA safety rule.
In turn, those Members refuse to acknowledge the relevance of another great novelist, Charles Dickens, who captured bleak scenarios in which greed led the owners of blacking factories to subject child workers to inhumane and life-threatening conditions. In reality, we do not have to turn to 19th century novels to enlighten us on workplace safety conditions in this country. We need merely turn to the last year's astounding New York Times investigative series on worker deaths by David Barstow.
Reporter Barstow reminded us all that someone harassing a wild burro on Federal lands in 2004 would get a stiffer penalty, that is up to a year in prison, than an unscrupulous employer whose willful safety violations resulted in the death of a worker.
As I have repeated several times during today's debate, that employer's malfeasance could result in a sentence of no more than 6 months in jail. However, if Mr. Barstow were to write his series this year, he would have to alter the comparison slightly. It is not, I am afraid, that we are doing a better job of holding errant employers accountable for serious safety offenses. Rather, it is because a provision in the Omnibus Appropriations Act enacted at the end of the 108th Congress repealed the protection of wild burros and horses on Federal lands.
So it is a different scenario; but still workers are no better off, I assure you.
Mr. Speaker, I reserve the balance of my time.
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Mr. OWENS. Mr. Speaker, I yield myself the balance of my time and would like to point out that despite the rhetoric of my colleagues on the other side of the aisle, and we did hear again the last speaker mention the fact that one of the reasons we are attacking OSHA is because employers feel they cannot compete with these regulations. They cannot compete with American workers being treated the way they are being treated.
The humane treatment of American workers stands in the way of profits and competition with the people who are in the developing countries and China. They do not have to treat workers this way. They do not have to spend the money, as I said before.
But I want to point out that this bill is hardly limited to small businesses. The appearance or the notion that small businesses are being persecuted by OSHA, by the government, is an incorrect one. According to the Bureau of Labor Statistics, in 1998 there were more than 6.5 million private sector firms with 99 or fewer employees. H.R. 742 applies to all firms with 100 or fewer employees with a net worth of $7 million or less. These companies, those with a hundred or fewer employees and $7 million or less, comprise about 97 percent of all American businesses.
Let me repeat that. H.R. 742 applies to all but 2 or 3 percent of American businesses. This is the broadest definition of small business that anyone could ever come up with or dream up. It is similar to categorizing elephants as small mammals. It does not tell the story as it should be told.
Mr. Speaker, when it comes to employment-related laws, Congress traditionally defines a small business as one with 20 or fewer employees, 20 or fewer employees. As a matter of fact, that is the definition used on annual congressional appropriation riders, which exempt firms of 20 or fewer workers from scheduled OSHA inspections, 20 or fewer workers, not 100, as this bill treats.
Mr. Speaker, I would also point out that OSHA also has a long-standing practice of reducing penalties for small employers. For businesses with 25 or fewer workers, any OSHA penalty is routinely reduced by 60 percent. Routinely reduced by 60 percent. Likewise, for businesses with between 26 and 100 workers, any OSHA penalty is reduced by 40 percent. Again, OSHA inspectors, in reality, are hardly like the draconian police inspector Javert from the famous novel, "Les Miserable."
It is important, Mr. Speaker, to realize that there is a need for both parties to come together and for the Republican majority to yield on its strategy to destroy labor unions. There is a strategy that has been pursued relentlessly to destroy labor unions; and in the process, working families of course get hurt because working families are represented by labor unions. In the effort to destroy labor unions, everything related to them, it gives them some kind of power, has to be destroyed, among them including OSHA.
Members of unions are likely to complain. They are likely to insist on their rights. They are likely to report violations. OSHA is less likely to run over the interests of the workers if there is an accident or some problem. So the relentless pursuit of labor unions is part of the problem with this legislation. It has been brought back because it is a part of a master plan, and that master plan is to sort of distract our attention from the real issues related to safety in the workplace, distract our attention from the fact that it is really an employer protection act that we are concerned with. Employer protection at all cost.
The constituency of the Republican majority party demands it all: destroy the kind of environment and atmosphere that working families have been used to for years in this Nation. Let us change all that because it is not competitive. It is not competitive. It costs too much. We cannot compete with our overseas competitors. We are, in the process, drawn into the trap of class warfare. We hate to hear the term class warfare anywhere in America. Nobody wants to be accused of class warfare, but that is what it amounts to: working families against people who never get enough.
We have bloated capitalism. Aristotle said there are extremes of everything. There are extremes to capitalism. At one end of the spectrum, in terms of economic systems, you have communism; at the other end you have reckless capitalism. Capitalism out of control. Capitalism so greedy it never gets enough. I think democratic capitalism is the hope of the world, and we have enough experience now to know that democratic capitalism is the only system that really works. But if you allow capitalism to go to extremes, it tramples on the rights of workers. It tramples on the rights of consumers.
You know, workers are consumers. There is a madness at work here. As we destroy the buying power of workers, we are destroying that which makes our economy go.
We all agree, there is no debate about the fact that the economy of America is driven by consumer spending. Henry Ford understood that very early when he said, I am going to make cars and pay my workers enough money to buy them. That was a simple, commonsense idea that is at the heart of capitalism today. Two-thirds of our economy is dependent on what people buy. We are going to destroy the consumers by destroying the conditions in the workplace which allow our workers to work productively and get paid appropriately.
The minimum wage of today, Henry Ford would see right away, is not going to allow our consumers to keep buying products. We are lucky; there is a sort of credit card fantasy, an oasis of credit card credit that is driving our economy right now. But slowly, as we lessen the amount of money that flows into the hands of workers, as we move more jobs overseas and encourage outsourcing, as we give more and more of our dollars to China, because we are not giving all of our dollars to China, we are giving the dollars that they use for manufacturing, for production, but the trade with China benefits the wholesalers and retailers.
People are making big profits off China in this country. We would not be dealing with China if somebody was not making big profits in this country, but it is skewed. It is out of balance because in order to make big profits at the upper levels by producing products in a low-cost economy and getting the low-cost product, bringing them back into another economy with a different standard of living and selling those products at that standard, we are having consumers in America pay high prices for the lowest-priced goods that come from China. And the people who sell those goods and buy them from China, they walk off with the profits, along with the Chinese who produce those goods through the deals that have been made. There is more Wal-Mart in China than there is in the U.S., and more all of the time.
They find it so profitable to take the product, the production, the manufacturing to China, and bring back the products to capitalize on the sales here. It is not going to work eventually. We are catering to those who benefit at the top, but it is not going to continue to work because we are destroying our own consumer market. We are going to wake up and find that the economy is going to come to a standstill because nobody is able to buy the products that we want to sell.
Our own class war that we do not recognize and will not recognize will destroy us. Other evidence of a class war is the fact that we continue to give huge tax credits to the people at the very top who need it the least, yet we do not use the power of the Federal Government to increase the minimum wage.
We started this discussion about minimum wage, and we are going to end it on minimum wage. The minimum wage is one way that we guarantee all Americans have a part of American prosperity. We should be paying something like $8 an hour in order to keep minimum wage competitive with when minimum wage was first instituted. We should be paying about $8 an hour to enable those workers to buy the products that we want to sell and keep our economy going.
So minimum wage, we refuse to even consider. Congress has gotten huge increases in their own salaries, and refuse to consider a minimum wage increase for the workers at the very bottom. Is that not an element of class warfare? That is class contempt. That is class hatred, to stamp on those at the very bottom and refuse to use the authority invested in us by the American people.
We have the authority to raise wages, but the same people who are being protected by these bills as far as OSHA is concerned by minimizing their expenses and minimizing any trouble they have to encounter in making the workplace safe, they are being protected by refusing to raise the minimum wage. What is the ultimate danger here? The ultimate danger here is that, one day, working families are going to wake up and say, you have it all wrong. The country belongs to all of us, not you. If you do not want to admit that, it belongs only to us.
Working families are the people who go out and defend the existence of this country in times of war. They will determine whether we defeat terrorism or not. Working families are going to determine that we do not have domestic terrorism spreading in America because working families are going to save America by rising up to throw out people who insist on stamping on them and have contempt for them.
Mr. Speaker, in closing, I urge a "no" vote on all four of these bills today.
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