Sunday, June 27, 2010


PAWA, aka Protecting America's Workers Act, aka H. R. 2067. I finally had a chance to read through PAWA today and what I read was both good and bad. The bill has some 20 plus sections, of which I thought 10 were significant. One part, Section 203, I didn't bother reading, it has to do with discrimination, which is something I don't know much about (for those who may not know, OSHA uses specialized investigators to look into discrimination complaints, CSHOs don't generally investigate these).

I don't know if PAWA is ever going to go through, I doubt it will happen this year, and the version I've read isn't necessarily going to be the final version, after all the Senate hasn't had a chance to change it yet. Having said that, here are the 9 sections that caught my attention and my first thoughts:

Sec 101: Coverage of Public Employees. Good.
Finally, all public sector employees would be covered. I think one of the undiscussed aspects of this section is that Federal agencies would finally have to pay their penalties, instead of having theoretical fines only. Maybe, just maybe, if the habitual offenders lose part of their operating budget, they'll start to take S&H more seriously.
Sec 102: Application of Act. Good.
This section changes our preemption due to coverage by other federal agencies. If I'm reading this correctly, and I gladly admit I'm not a lawyer so I might be wrong, but it appears to bring a lot of private sector employees who weren't covered by OSHA, under OSHA coverage. As an example, right now we are preempted from covering flight attendants while on board the aircraft because the FAA has claimed jurisdiction. But the FAA has no S&H rules for flight attendants, and it certainly doesn't enforce anything, so I think we would now have coverage over the fight attendants.

I think this goes even deeper, I think it means that any place we are currently preempted from inspecting will no longer be exempted from our coverage unless and until another federal agency has demonstrated that its regulations are at least as effective AND we have reviewed the standards, agreed with them, and published our agreement in the Federal Register. If I'm reading this correctly, this is big. We've never investigated acts of violence, are we going to now?
Sec 304: Investigations of Fatalities and Serious Incidents. Good (and finally).
This section seems to finally make tampering with evidence a criminal act, although I can't tell what the penalty would be.
Sec 305: Prohibition on Unclassified Citations. Neutral.
I never liked the “Unclassified” classification of citations, but they helped to settle cases (usually for full penalty and with no dropped violations) so once everyone started recognizing that “Unclassified” was just code for Willful, I stopped worrying about it. I just don't see this as a big deal either way.
Sec 306: Victim's Rights. Bad.
In my May 12 post “Bad Ideas” I expressed my discomfort with having employee representatives present during management interviews, I think it leads to bad inspections, well I think the same would true if this section is included in the final bill. I'm not philosophically opposed to victim's rights, and I think as an agency we do a poor job communicating with victims and their families, but involving them in settlement negotiations changes the dynamics in the room so dramatically that I foresee only problems.

I see four possibilities:

1) Employers contest more cases. If the employer objects to a violation then that part of the citation is up for negotiation, which the victims won't generally want the Agency to give up. This means that if the AD agrees with the victim, the company contests and we go to trial.

2) Victims demand hearings. If the employer objects to a violation then that part of the citation is up for negotiation, which the victims won't generally want the Agency to give up. This means that if the AD agrees with the company, the victim will demand a hearing.

3) Both the employer and victim want to go before a judge. The AD sides with the victim on some issues and the employer on others. Neither side is happy and both want to go before a judge.

4) CSHOs write fewer violations per inspection. It's possible that many CSHOs will only write violations where they know the employer won't vocalize an objection so neither side can object to the outcome. That's good for the employer, not so good for S&H at the job site.

But it also puts the AD in position of being an arbitrator, of making decisions not based on good S&H or law, but on which path causes the least resistance. It's pretty easy to envision scenarios where the victims lawyers is sitting in the room questioning, pontificating, and submitting statements solely for the purpose of setting up his lawsuit, which puts us in the middle of something we shouldn't be in the middle of.

Part of my problem with this section is practical (see above) and part of it is philosophical. The OSH Act places the burden of workplace safety and health on each employer. It places the burden of ensuring compliance with safety and health standards on OSHA. Citations are an action between an employer and the US Government, employees where never intended to be part of the enforcement of the Act.
Sec 308. Abatement of Serious Hazards During Employer Contests to a Citation. Good, maybe.
The sections allows OSHA to inspect and issue citations to a company even if the company has citations currently under contest. This could get complicated and seems to raise a lot of questions;

Can we cite the same location for the same violation on the same piece of equipment (machine guards, for example)? What about if it's the same violation on a different, but identical, piece of equipment at the site? What if it's the same standard but totally different equipment? What if it's the same company, identical equipment, but a different site?

What happens if:

1) I issue a citation to a company and the company contests;

2) Another CSHO in a different AO issues the same citation under the same conditions to the same company at a different site owned by the company, before my case is settled

3) My citation is then vacated.

Is the second citation automatically vacated? What if mine was vacated because I failed to identify an exposed employee but the other CSHO did identify one? What happens if mine is tossed because the process is covered by construction instead of general industry but the second site already agreed to the citation and paid the penalty?

This one could get ugly.
Sec 309. Objections to Modification of Citations. Bad.
See my arguments for Sec 306.
Sec 310. Civil Penalties. Good.
This is the section that seems to be getting a lot of attention, but to me it's one of the least important of the 9 sections (10 sections if you include the discrimination). Yes, it's generally good that the penalties go up, and it's even better that there is a built in inflation adjustment, but to me penalties just aren't the end-all-be-all of an inspection. Suppose I cite a pair of trenching companies for not shoring or sloping a trench. If I know company A will use a trench box every time from now on, I'm OK with a $1 penalty. If I know company B will continue to put their employees in deep trenches with no protection, I'm OK with a high enough penalty that they go out of business.
Sec 311. OSHA Criminal Penalties. Good.
I say “good” with a certain trepidation. I'm OK with putting certain employers in prison, some of them belong there*, but I'm not sure how this will work. Our burden of proof is “preponderance of evidence,” a legal bar significantly below “beyond a reasonable doubt,” which is where we will have to get for any criminal penalties. I assume that the Dept. of Justice would handle those cases, but since we have no real working relation with them and no experience with “beyond a reasonable doubt,” I foresee difficulties.

On a previous post, on anonymous commenter said:

“I see a lot of good safety people trying very hard to do their jobs, and due to "risk takers" accidents occur. I wouldn't want to have that type of liablity. I expect that you will see alot of good safety officers rethink their current roles.”

I don't think that's necessarily true. First, if you're an honest S&H manager (as I believe the overwhelming majority are) all you need to do is document everything. If you tell your operations manager that employees need to wear supplied air respirators before they go into the tank that used to hold ammonia and he sends people in wearing dust masks, as long as you've documented your recommendations, he's the one who is going to jail when we do our fatality investigation, not you.

Even when we cite Willful now, we have to show a high level of indifference by the employer towards the employees safety and health. If we go to criminal penalties, we'll have to show an even higher level of disregard for employee safety and health.

If you go back umpteen years, when EPA was given this kind of authority the environmental people all worried about the same thing, but if you look at the criminal convictions based on EPA laws, very few environmental managers go to jail, it's the bosses who ignore them who do the time. Not only are the environmental people not going to jail often, but this lead to a huge growth in the number of companies that directly hired environmental specialists as well as the number of environmental specialist hired by consulting companies. I think the same would happen for S&H.

Do the right thing and you'll be OK.

* When I say some employers belong in jail, it's a very small percentage, maybe 1-2% of the employers we deal with, and we mostly deal with the worst of the employers.


  1. Wouldn't Congress have to pass it this year? Their two-year term is up on Jan. 3, 2011.

    What I'd like to know is, who wrote it? Is there any way to identify which group or groups wrote which parts?

  2. RT Congress can introduce any bill any session, so if it doesn't go through this year, they would just reintroduce it next session. But it may not matter. The House is putting forth the "Miner Safety and Health Act of 2010," which, as near as I can tell, incorporates all of PAWA. You can read it here:

    As for who wrote it, I don't know, I would guess SEIU had a big part in it, but i don't know for sure. I'm not even sure how you would find out.

  3. If we start going after criminal sanctions, we will be dealing with employers that invoke their 5th Amendment rights regularly. That will change the game in fatality investigations completely, and getting DOJ to prosecute them will be difficult, since they like to tell us that they are interested in "terrorists, drug dealers, and child pornographers". OSHA will be down on the bottom of their priority list.

  4. A comment on Section 306: SOL gets a huge case load due to victim families that do not understand the dynamics of the inspection/citation process. SOL wants to limit citations at fatality inspections, or toss citations due to backlog. Or worse yet, we end up with poor case law on the books. I see this section as a good theoritical idea, but a nightmare in practice. It will result in a drain on our resources. OSHA needs a better way to include the employees and families in the process.

  5. Anon 1: I agree that we'll be at the bottom of the priority list, but I don't think we'll see a lot of people invoking the 5th, they don't do it very often now with other criminal investigations by agencies like the EPA or FBI.

    Anon 2: You're absolutely right that we need a better way to include employees and families, but you also sparked something I hadn't thought of before - what if this actually gets SOL to take more cases to trial? Think about it, we go into the informal conference, the family is there, we lay out our citations so the family knows what we found, the company contests and we go to formal talks. Now the pressure is on SOL, if they drop any citations the family runs to the local press to accuse SOL of a grave injustice. This way OSHA isn't the scapegoat, after all we showed them the case against the employer, it's all SOL's fault. Maybe?

    Obviously SOL would try to blame us for not putting an adequate case together, but I don't think most families would buy that, nor would the press.

    Any thoughts anyone?

  6. Yes, PAWA will increase contests. No doubt.

    But I don't think you will be able to blame the SOL if they drop citations. Most folks see OSHA and SOL as one and the same -- and technically, they are both under in).

    Right now there are cases out there right now where family members are paying a lot of attention to the case because a loved one was hurt or killed. Nothing stops OSHA from laying out their citations to the family today. Sometimes that happens, especially when a family member takes a keen interest in the case. They always blame OSHA for dropped citations, regardless of whether OSHA or SOL instigated it. And I think they still will.

  7. RT - It's true that most people see SOL and OSHA as the "Government" but I think a lot of that can be over come by good communication. If the AD is very clear about what we feel should be done and explains SOL's role, I think we lay the blame where it belongs.

    You're also right about there being nothing that stops us from laying out our case to the family now, but we don't do it. As I've said before, I think we do a very poor job communicating with families, I just wish it didn't take PAWA or something like it to bring about the changes we need.