Things Have Gotten Interesting

Some of you have been asking what happened to the OSHA Underground, and I think I've figured out why that site went down. I got this e-mail from Google, the owners of Blogger:

Hello,

Google has received a subpoena for information related to anonymous comments posted on your blog. The case is entitled Secretary of Labor v. Wal-Mart Stores, Inc., United States Occupational Safety and Health Review Commission, Case number SDT-9-0181.

To comply with the law, unless you or an anonymous commenter provide us with a copy of a motion to quash the subpoena (or other formal objection filed in court) via email at legal-support@google.com by 5pm Pacific Time on November 26, 2009, Google will assume you do not have an objection to production of the requested information and may provide responsive documents on this date.

For more information about the subpoena, you may wish to contact the party seeking this information at:

Michael D. Billok
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, NW, Suite 300
Washington, DC 20036
(202)887-3500

Unfortunately, Google is not in a position to provide you with legal advice.

If you have other questions regarding the subpoena, we encourage you to contact your attorney.

Thank you,

Google Legal Support

Interesting, no? My guess is that Kane got the same e-mail and just deleted the blog in the hopes this would go away. Unfortunately, it doesn't work like that, there is a law requiring internet companies, like Google, keep records of usage data, like the IP addresses of visitors to their sites, including Blogger.

What does this all mean? Since I don't have any connection to this case, and anyone who does has been identified already, I'm not sure if this is evidence that WalMart actually is evil like people say, or that their overpriced attorney is padding his billable hours. Either way I'm going to have a conversation with an attorney, although part of me wants to say screw 'em, bring it on.

It's unfortunate that we have become a country where people have to be afraid to express an opinion.

BP

The Houston South Area Office issued BP a record citation today: $87,000,000. That's right 87 million dollars!

Some people who support the current administration are going to jump up and down and say "See, I told you!" But I would note one thing, this case was built on the 2005 case (actually the settlement agreement from that case), whcih was conducted under the previous administration. The 2005 case had been the largest penalty ever, $21 million.

It's unlikely that any of the political appointees were ever on site, and I doubt any of them know enough about PSM to influence the citations. I don't think the previous administration deserved credit for the 2005 case any more than I think the current administration deserves credit for this case.

The credit for this case goes to the CSHOs in the Houston South AO, and all of those who supported them, others in the Area Office, the Regional Office, the Regional Solicitors, and maybe even one or two people in the National Office.

Well done one and all.

Driving

First let me add my congratulations to the OSHA Underground for being named to the LexisNexis Top 25 List of Workplace related blogs. It's great that they got that recognition!

Next, from a commenter:

"Thanks for posting again! I was hoping my comment would elicit a post by you....how about distracted driving as a topic? Apparently it is the #1 killer in the workplace- The US DOT had a summit 2 weeks ago but no one really mentioned it as a workplace issue, I would think this would be an OSHA concern as well?"

As a S&H professional, yes I'm concerned about distracted drivers, the problem is that most of the time, I don't have the jurisdiction to address the problem. Section 4(b)(1) of the OSH Act says:

"(b) (1) Nothing in this Act shall apply to working conditions of employees with respect to which other Federal agencies, and State agencies acting under section 274 of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2021), exercise statutory authority to prescribe or enforce standards or regulations affecting occupational safety or health."

What that means is if another federal agency wants jurisdiction, they get it and we don't. And guess what? The Department of Transportation claims jurisdiction for all roadway safety (and then gives that jurisdiction to state and local authorities). Off public thoroughfares we have jurisdiction, but not on the street and highways. That's too bad for the commuters in California or Boston.

One of the bizarre quirks in Section 4(b)(1) of the OSH Act is that the agency claiming jurisdiction doesn't actually have to do anything to protect employees, they just need to claim jurisdiction. Ask the flight attendants and airline mechanics how well that has worked out for them.

This is a lot different than workplace violence, where we usually do have jurisdiction, but hide from it (that's a separate rant).

No I Haven't Given Up

Anonymous said:

"This has nothing to do with the post, but Abel, where are you? You have not posted in a month! We miss you...."

Thanks, since I've never had an employer open up his arms and say "Glad to see you," it's kind of nice to be missed by at least one person who reads the blog.

You know how fraternities and sororities have Hell Week? CSHOs have Hell Month. And it's not a one time event, it happens every year. Some years are worse than others, and Hell Month becomes Hell Six Weeks. But finally I've gotten to the point where all my OSHA-1s are entered, and I have some kind of handle on the citations. So what shall I rant about? How about this from a previous comment:

"I wonder what the unions and their cronies Barab and Solis will say when their policies increase fatality counts instead of decreasing them. Using their logic, I guess that would make THEM accomplices to murder...? Sadly, a little more than 5000 died while on the job. Lets see what that number is in 2010, 2011, and 2012. My bet ---- higher if they continue down this path."

Here's one for you: I agree that the counts are likely to go up, because of the administrations policies! Before you become apoplectic, however, let me explain (I'm not making a political statement here, so save yours).

Look at these numbers:

Year	Fatalities	Employment	Rate
1992	6083	120 M	5
1993	6271	121 M	5
1994	6588	124 M	5
1995	6210	126 M	5
1996	6112	128 M	4.8
1997	6218	131 M	4.7
1998	6026	133 M	4.5
1999	6023	135 M	4.5
2000	5915	136 M	4.3
2001	5900	136 M	4.3
2002	5524	138 M	4.0
2003	5575	139 M	4.0
2004	5564	140 M	4.1
2005	5734	143 M	4.0
2006	5840	146 M	4.0
2007	5657	147 M	3.8
2008	5071	136 M	3.6

If the fatality counts are the best indicator, then the previous administration failed, notice the increase in fatalities between 2002 and 2006? Up over 10%, BUT look at the employment, going up, and the rate, basically flat.

Unemployment is currently at 9.8%. At some point in the future, that number will come down, presumably because of the administrations economic policies. When unemployment does come down, I would fully expect the number of fatalities to go up. The number of fatalities will go up because the administration will increase the number of jobs.

All this really does, of course, is highlight the fallacy of fatality counts, so let me state this simply: Counts are almost worthless, fatality rates are the best indicator of success. It will be interesting to see if things change now that BLS has gone to hours based fatality rates instead of FTE based rates.

On a related topic, back on March 30, 2009 I posted a rant about the paper "The impact of OSHA recordkeeping regulation changes on occupational injury and illness trends in the US: a time-series analysis" by Friedman and Forst. The basic premise of the study was that the change in OSHA's recordkeeping standard caused an artificial decrease in injury rates from 2001 to 2003. I made my argument against that position back in March, but now in October, while reviewing the fatality data, I discovered another argument, the drop in fatalities between 2001 and 2002.

So why is the drop in fatalities relevant to the drop in injury rates? Anyone familiar with Heinrich's Pyramid or the refined version from Bird, knows that for every fatality there are 30 lost work day cases and 300 recordable cases. Since the recordkeeping standard didn't change the definition of a fatality, with such a significant drop in fatalities (not just the counts, but the rate as well) between 2001 and 2002, one would reasonably expect a correspondingly large drop in serious injuries as well.

Anyone have any other ideas for topics I could rant about?

Health Care Reform

I have a question: What happens to workplace safety and health if health care reform actually goes through? Has anyone thought about it?

Please don't jump in and leave comments about how health care reform is good or bad for the country, I'll just delete those posts. My question is not whether or not we should have health care reform, my question is what happens to safety and health if it comes to pass?

Let's assume it does pass. Let's also assume it meets the goal of reducing health care costs. Wouldn't this suggest that workplace injuries and illnesses might go up? Think about it, we all know that there exists a segment of employers who are only motivated by workers compensation costs. If those costs drop 20%, isn't it reasonable to also assume that at least some of those employers will also reduce their safety and health efforts?

Will this happen? Can it be stopped? We need to get some people a lot smarter than I am to start thinking about this.