Prevention and Enforcement
Workplace safety continues to be an important area of enforcement by federal OSHA and state OSH agencies. OSHA’s fiscal year 2008 budget shows a strong emphasis on enforcement as well as compliance assistance. OSHA’s partnership with the Department of Justice and the Environmental Protection Agency has resulted in an increased number of referrals to the DOJ chiefly in the areas of willful violations and workplace deaths. OSHA will not hesitate to initiate criminal prosecutions where employers have provided false statements and/or have obstructed investigations. In several recent cases, OSHA has imposed separate penalties for egregious violations which has resulted in higher overall fines. Finally, whether as a result of the lawsuit by the AFL-CIO and UFCW, or because it finally has gotten around to it, OSHA expects to issue a directive regarding employers’ responsibility to pay for personal protective equipment within the next few months.
Multicultural Issues in Workplace Safety
OSHA has indicated an emphasis on multicultural workplace issues, focusing chiefly on Hispanic workers. Work-related injuries and deaths among Hispanic workers are on the rise, even though that statistic is falling for the general working population. Language and cultural problems may be at the heart of this disparity where a distrust of authority and a desire not to call attention to one’s self are important influences. In this context, employers would be prudent to take some affirmative steps to ensure that the message concerning workplace safety is adequately conveyed to all workers, including consideration of the following:
- Hiring bilingual supervisors and managers. While English continues to be the primary language in most workplaces, it is helpful for communication purposes to have a more effective avenue for two-way communication with workers, especially regarding safety matters.
- Address issues of discrimination and prejudice. An amalgamation of cultures, rather than acceptance of a predominant culture creates a much stronger working environment for all employees.
- Hire lawful employees. Workers who are not nervous about their legal status may tend to cooperate more with regard to safety issues by bringing them to management’s attention.
- Offer ESL classes. Encourage workers whose primary language is other than English to learn English
- Encourage workers to visit OSHA’s “En Espanol” web page.
- Maintain effective written safety policies. As with other policies, safety policies should be distributed at the outset of employment. In addition, however, safety rules should be explained orally to ensure that workers are familiar with them.
Trends in OSHA Enforcement
OSHA has moved toward more programmed inspections. In fiscal year 2006, about 56% of OSHA’s 38,579 inspections were programmed, which reflects OSHA’s emphasis on concentrating its inspections to high hazard workplaces. Interestingly enough, only 19% of OSHA’s inspections in fiscal year 2006 were initiated by employee or third party complaints. Site specific targeting (SST) relies on OSHA’s nationwide collection of injury and illness data and is used to focus OSHA inspections on what appear to be the most hazardous workplaces.
In fiscal year 2006, approximately 12% of OSHA’s resources were devoted to whistleblower investigations under Sarbanes-Oxley. Interestingly enough, approximately three-quarters of these cases were dismissed by OSHA or withdrawn by the complainant. Most of the others were settled. Three cases involving OSHA’s whistleblower enforcement activities are worth mentioning. In one, decided by the Administrative Review Board, Ambrose v. U.S. Foodservice Inc., et al., 2005 SOX 105, slip op. (Department of Labor, A.R.B. Apr. 17, 2006), OSHA adopted the NLRA control and influence test for determining whether subsidiaries of public companies are covered under an integrated employer test. In another, Carnero v. Boston Scientific Corp., 2004 SOX 19, slip op. (Department of Labor, A.R.B. Jan. 13, 2004), OSHA determined that Sarbanes-Oxley does not apply to employees working for U.S. companies abroad. In Welch v. Cardinal Bankshares Corp., et al., slip op. No. 06CV000407 (W.D. Va. Oct. 5, 2006), OSHA indicated that, even without judicial support, it does not hesitate to use as a powerful enforcement tool its ability to order preliminary reinstatement of employees who claim unlawful discharge or whistleblowing.
OSHA is considering the issuance of settlement guidelines. The primary advantage for such guidelines is the avoidance of situations where an employer with multi-state facilities settles a citation in one jurisdiction and cannot persuade the OSHA office in another jurisdiction to agree to the same settlement terms for the same violation. On the other hand, however, while some consistency may be achieved, uniformity in settlements may result in a lack of flexibility for individual circumstances similar to what has occurred with federal sentencing guidelines in criminal cases.
The Impact of State Workplace Safety Laws
The federal OSH Act does not preempt individual states from enacting workplace safety laws that exceed OSHA’s requirements. Thus, 26 states operate OSHA-approved State Plans for occupational safety and health. State Plans often fill in gaps where federal OSHA has not acted. For example, workplace smoking, regarded as both a workplace safety as well as public health issue, has been addressed under State Plans. State Plans also have focused on dealing with ergonomics issues and workplace violence, especially in health care settings. Employers with multstate operations may be well advised to check state workplace safety laws to determine the extent to which, if any, they are subject to enhanced safety rules.
Generally, states do more inspections and find more violations than federal OSHA, although fewer are cited as serious. Nevertheless, average penalties under State Plans are about the same as under federal OSHA.
OSHA is updating its website to assure that information concerning State Plan standards, policies and procedures is accessible to employers and employees on the internet. The redesigning of State Plan pages on OSHA’s website is more than cosmetic; it will ensure adequate notice to employers that higher standards may exist under State Plans and, therefore, employers will be accountable for compliance. There are risks for employers with multiple worksites in different states of inconsistent interpretation of safety standards where state courts may not defer to federal OSHA interpretations of similar safety provisions.