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Assistant Secretary of Labor for Occupational Safety and Health, David Michaels, told lawmakers that OSHA’s current penalties are not large enough to provide adequate incentives for employers to “do the right thing” and comply with OSHA requirements. Michaels spoke at a March 16 House Workforce Protections Subcommittee hearing on “Protecting America’s Workers Act: Modernizing OSHA Penalties.”
The Protecting America’s Workers Act (H.R. 2067), reintroduced last year by Rep. Lynn Woolsey, who chairs the subcommittee, would increase OSHA civil and criminal penalties, and tie them to inflation so they would continue to rise in the future. The proposed legislation would make it a felony, rather than a misdemeanor, to violate OSHA rules if this results in death or serious injury to a worker, while changing the standard of proof in such cases from “willfully” to “knowingly” violating OSHA standards. In her opening statement, Rep. Woolsey said since becoming chair of the subcommittee her top priority has been to keep the promise of the OSH Act – to protect the health and safety of American workers. She said the hearing was about the civil and criminal penalty provisions in sections 310 and 311 of PAWA, as well as the proposed changes to the bill.
In his testimony before the subcommittee, Michaels explained the administration’s support for PAWA. He said the median initial proposed penalty where a worker was killed in 2007 was only $5900, and the maximum civil penalty OSHA can impose when a worker is killed by a willful violation of an OSHA rule is $70,000. By contrast, the Federal Communications Commission can fine a TV or radio station up to $325,000 for indecent content and EPA can impose a penalty of $270,000 for violations of the Clean Air Act.
John Cruden, Deputy Assistant Attorney General, Environment and Natural Resources, Department of Justice, also testified at the hearing, saying the DOJ supports the strengthening of OSHA criminal penalties to make them more consistent with other criminal statutes and to further the goal of worker safety. Cruden said the misdemeanor violations of the OSH Act provide “little incentive” for DOJ prosecutors to expend limited resources pursuing such cases.
Rep. Woolsey asked Cruden if he agreed with the change from “willfully” to “knowingly” violating OSHA standards. Mr. Cruden said he supported the change, as the “knowingly” standard is far more familiar to federal prosecutors; it is used in the Clean Water Act, the Clean Air Act, and most other environmental laws. Cruden also said that PAWA would level the playing field so that employers who spend the money to comply with OSHA requirements are not at a competitive disadvantage with those who flout the rules.
Jonathan Snare and Eric Frumin made up the second panel of the hearing. Frumin, health and safety coordinator, Change to Win, supported PAWA, saying it would help hold companies more accountable, although he called it “very modest legislation,” pointing out that even if the legislation is approved, the penalties for violating OSHA rules will be lower than for violating environmental standards.
Snare, a former acting OSHA chief and currently a partner at Morgan, Lewis & Bockius, LLP, testified on behalf of the U.S. Chamber of Commerce. He argued that current penalties are sufficient to compel compliance and that penalties alone won’t solve the problem of preventing injuries to workers. He maintained that PAWA would increase litigation and delays in the resolution of enforcement cases. He opposed changing the level of intent from “willful” to “knowing,” asserting that OSHA inspectors are unfamiliar with the term and that this will lead to confusion and legal challenges costly to the agency and the employer.
One of the proposed changes to the introduced bill would apply criminal sanctions to “an officer or director,” and Snare said this will result in a “witch hunt” to hold officers or directors responsible. An earlier version of PAWA would have applied to “any responsible corporate officer,” and Snare said even this would have been problematic, but the current wording expands potential prosecution to those who generally have no involvement in day-to-day operations.
In her closing statement, Ranking Member McMorris Rodgers, R-WA, called for a more collaborative approach between employers and OSHA, arguing that this, rather than the “Gotcha” mentality evoked by PAWA, had led to reductions in injuries, illnesses, and fatalities over the previous decade.
For more information on the hearing and PAWA, including an archived Webcast of the hearing, go to: http://edlabor.house.gov/hearings/2010/03/protecting-americas-workers-ac.shtml.
