WHEN A WORKER IS KILLED: DO OSHA PENALTIES ENHANCE WORKPLACE SAFETY?
TUESDAY, APRIL 29, 2008
U.S. Senate, Committee on Health, Education, Labor, and Pensions, Washington, DC.
The committee met, pursuant to notice, at 10:01 a.m., in Room SD-430, Dirksen Senate Office Building, Hon. Edward M. Kennedy, chairman of the committee, presiding.
Present: Senators Kennedy, Murray, Enzi and Isakson.
Opening Statement of Senator Kennedy The Chairman.
We will come to order. This is our first hearing that we have had since my friend and colleague, Mike Enzi, announced that he was going to run for reelection in the State of Wyoming, and I wished him well.
I am going to wish him well today. I do not know how long in the year I will continue to wish him well. Not sufficiently well so he will ever gain chairmanship of this committee again. [Laughter.]
But we are always delighted to have a chance to work with him, and we do wish you all the best, Mike. You kept everybody in suspense here. Some of us were crossing our fingers and uncrossing them over time. 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, MA, 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 9-ton piling came loose and crushed him. As Julie learned later, two divers had previously been killed working for the same employer. Julie and her mother were devastated by Christopher's death, but their grief was intensified by OSHA's failure to prevent it after 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 less than $3,675. Workers' lives are obviously worth more than that. Employers who ignore their employees' safety should pay a penalty that will force them to change their negligent ways. It is the only realistic way to save lives.
A mild slap on the wrist is not 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 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 does not 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 will not bother to collect fines from employers who break the law? Also, OSHA cannot 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 6 months in jail.
If you improperly import an exotic bird, you can go to jail for 2 years. If you deal in counterfeit money, you are 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 of the 10,000 fatalities that OSHA has investigated in the past 5 years, only 10--only 10--criminal prosecutions have resulted. That is why so many companies treat safety violation as another cost of doing business. What frustrates families like Julie Primeau is the knowledge that these tragic and needless deaths will continue.
If we are serious about improving workplace safety, we need to raise penalties, 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 cannot detect and correct every violation. It would take OSHA 133 years to inspect every work site in its jurisdiction. Instead, we need a law with teeth so that employers will be vigilant about complying with safety laws. That should not be controversial. Experts from across the political spectrum agree, including Jerry 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 will never persuade CEO's to take OSHA and workplace 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 have offered an amendment to the Budget Act this year to require OSHA to give families a voice.
The problem of worker fatalities is not going away. As the economy continues its decline, the pressure on American workers to increase productivity is growing. Achieving higher production often means cutting corners on safety. We all know where that leads: more accidents, more injuries, 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. Just before recognizing Senator Enzi, I will just show these charts here which illustrate the points that I was making earlier. This is a willful violation causing a fatality, $70,000.
South Pacific Tuna Act is $325,000. Clean Air Act violation is $270,000. Willful violations for the Fluid Milk Promotion Act is $130,000. Not only are the penalties weak but the enforcement is too. If you look at what has happened with the enforcement--so you have weak penalties and then weaker enforcement--you see the decline. The initial penalty, $5,900. Then it went down $2,225.
So the final penalty is $3,675. So we see that the supervisors cut the initial penalties. That is in the civil area. Now, if you look in the criminal area, it is just about the same. You have willful causing of worker's death, 6 months. And then you have unlawful hunting of migratory birds, 2 years; counterfeiting, 20; mail fraud, 30; piracy on the high seas, life. Here it is the loss of a life, willfully causing a worker's death.
Willful, 6 months. And finally, this chart here which is sort of a summation of what happens. You have the OSHA fatality inspections. Between 2003 and 2008, it is 9,800. That is over the 5-year period. Now, of the willful violations eligible for referral, it is 237 made by OSHA. Cases OSHA referred to DOJ for criminal prosecution, of the 237, only 50.
And the cases prosecuted by the Department of Justice over that 5-year period, 10. So this is a rather fierce indictment. The conclusion one has to reach--as one who was here at the time the OSH Act was passed and has seen the difference when we have good enforcement and an effective law--is that, boom, the numbers just go down like a stone.
The violations go down. The loss of lives go down. Then when there is a relaxation of enforcement, we find out what happens out there in the workforce. So this is an important hearing and we are very grateful for our witnesses.
[The prepared statement of Senator Kennedy follows:]
Prepared Statement of Senator Kennedy
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, MA 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 6 months in jail. If you improperly import an exotic
bird, you can go to jail for 2 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 5 years,
only 10 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.