Deputy Assistant Secretary of Labor
For Occupational Safety and Health
VOLUNTARY PROTECTION PROGRAMS PARTICIPANTS' ASSOCIATION
August 20, 2012
Good Jobs for Everyone
Thank you for welcoming me once again to the VPPPA annual conference. This conference represents one of the best opportunities we have to engage in a healthy exchange of ideas, about ways to ensure that our nation's workforce stays safe and healthy on the job.
Let me also thank all of you on behalf of Secretary of Labor Hilda Solis for all that you do to protect your workers. I also want to convey [Assistant Secretary of Labor] Dr. David Michaels' appreciation and his best wishes, and his apologies for not being able to be with you today.
Three years ago, I took the stage at this conference to introduce this association to the vision of "Good Jobs for Everyone" that Secretary Solis proposed at the Labor Department. We arrived with very high goals and expectations, and I believe that through our determined efforts to modernize OSHA and serve the needs of a 21st Century workforce, we are well on the way to meeting those goals.
In the three years since, we've also experienced devastating events that have left us shaken but resolved: six workers killed in an explosion at the Kleen Energy Power Plant in Connecticut; seven workers killed in a refinery fire in Washington State; six workers lost in a grain elevator explosion in Kansas; and off the coast of Louisiana, 11 more workers killed in the Deepwater Horizon explosion.
But those are just the tragedies you hear about. Thirteen workers are still killed each and every day of the year in American workplaces and four million injured every year; and although we've made a lot of progress over the past 40 years, there is clearly much more to be done.
Allocating Limited Resources
In these last three years, we've also learned a great deal — and what we've learned has prompted an important conversation about the future of the VPP.
On one hand, we have had opportunities to tout the achievements of the VPP and show people just how effective the program can be. Last month, I testified before the U.S. House of Representatives' Committee on Education and the Workforce about the benefits of VPP, and I look forward to many more opportunities to do the same.
Let me announce to you now that the state of VPP is good. As of June, there were 2,368 active VPP participants; 1,644 of these participate at the federal level and 724 participate at the state level. These sites protect more than 911,000 workers, and this figure has more than doubled since 2003.
In these challenging economic times, OSHA must struggle to meet competing priorities and balance our resources. OSHA and VPP will continue to face difficult decisions that we will have to address together. Despite VPP's enormous success, we need to make some very hard decisions about how to allocate our limited resources where we will get the most worker protection "bang for our buck." Our challenge is to maintain an active, quality VPP while also providing assistance to small businesses, help for hard-to-reach and vulnerable workers, support to enable workers to exercise their rights under the law, and an active enforcement program that focuses on the worst offenders — those companies that, unlike VPP participants, don't get the message, continue to ignore the law, and needlessly put workers' lives in jeopardy.
OSHA does many things well — compliance assistance, training, cooperative programs — but OSHA is the only institution in this country that can issue standards and enforce them, making our enforcement program the most important job that this agency does. Accordingly, we were gratified to see a recent study, conducted by Michael Toffel and David Levine — business school economists at Harvard University and the University of California, respectively — that confirms the importance and effectiveness of the strong enforcement programs.
The study demonstrated that OSHA workplace inspections not only reduce injuries, but also save billions of dollars for employers through reduced workers' compensation costs, and with no evidence of a negative impact on jobs, employment, or profitability of the inspected firms.
Budget increases are extremely rare these days, but we have found it necessary to increase resources for our Whistleblower program. The OSH Act relies heavily on workers to help identify hazards at their workplaces and to work with their employers to control those hazards. But workers are not likely to participate in safety and health activities, or report on hazardous conditions, if they fear that they will lose their jobs or otherwise be retaliated against as a result of their activities. For this reason, section 11(c) protects employees from discrimination and retaliation exercise other rights under the OSH Act.
Since the OSH Act was enacted in 1970, Congress has charged OSHA with enforcement responsibility for 20 additional whistleblower anti-retaliation statutes. Despite the increase in OSHA's statutory responsibilities, the staff charged with enforcing these laws did not grow significantly until FY 2010, when 25 whistleblower investigators were added to OSHA's ranks.
VPP is The Model of an Effective Safety and Health Program
Despite these competing priorities, I want to make one thing very clear. VPP remains an important OSHA priority. We are very proud of VPP, and we believe that the program represents a necessary and effective way to recognize and reward companies that make the safety and health of their employees their highest priority.
Entire industries gain from VPP because VPP participants set an example for other companies. For its part, OSHA also gains a corps of ambassadors who are enthusiastic about the message of safety and health management and who are eager to share their success stories with others. Over the past three and a half years, Dr. Michaels and I have met with the VPPPA's board and members on many occasions and visited VPP plants across the country.
We've been extremely impressed with the health and safety programs at those sites. We have witnessed firsthand the participating companies' dedication to workplace safety, as evidenced by the utilization of best practices and implementation of safety and health management systems that are often more rigorous than that required by OSHA standards, as well as an obvious pride in their health and safety achievements. These employers clearly demonstrate that it is possible to operate a company that is both profitable and serves as a model for businesses and industries in all sectors of the American economy.
Nevertheless, as I discussed earlier: As with every other government agency, we are not able to fund every priority to the extent we'd like. This problem has been a long time comin. Three years ago when I spoke before you, I warned that the budget pie was not going to be getting significantly bigger and that we would need your help to make difficult priority choices to identify what is best about VPP and how to maintain and improve on those features within a limited budget.
As you will recall, our FY 2011 budget contained a request to find alternative sources of funding for VPP, and together with Congressional members we began exploring a fee-based program for VPP.
As Dr. Michaels explained two years ago, this was an effort not to weaken VPP, but just the opposite — to shield the Voluntary Protection Programs from being tossed on the shoals of a shrinking budgetary pie — to keep the program out of the hard decisions we are now being forced to make about our budget. You rejected that proposal, and we have taken it off the table. Nevertheless, the budget uncertainty remains.
Although we disagreed with your position, we haven't wavered from our continuing support of the program. We will continue to search for ideas and processes that will preserve the VPP, whatever spending decisions may be headed our way.
The first change we're making is to increase our use of SGEs in the approval and reapproval process. Two weeks ago, on July 20, we sent out a policy memorandum formalizing policy with regard to SGEs. Now, VPP onsite evaluation teams must include at least one qualified Federal or State-Plan employee serving in the capacity of Team Leader. SGEs may not serve as Team Leaders or Backup Team Leaders unless they are conducting a VPP onsite evaluation of an OSHA office. It also means that, with approval by the Regional Administrator and if the Team Leader is a qualified Federal or State-Plan employee, an unlimited number of SGEs may serve on a VPP onsite evaluation team.
Another approach that OSHA is exploring to ease the resource burden of VPP is removing the Merit and Corporate levels of VPP participation. When VPP first began, over 30 years ago, a Merit level was included to encourage participation and recognize those worksites striving for Star status and committed to VPP. Today, of the 2,368 active participants in VPP, only 60 are Merit participants; this represents less than three percent of Merit participants in VPP.
Merit is a resource-intensive program, but it has not proven to lead to high probability in reaching or maintaining VPP Star Status. Since VPP began in 1982, there have been 389 Merit participants. Of the 389 Merit participants, 186 participants advanced from Merit to Star and are still active VPP participants; 106 participants advanced from Merit to Star and are no longer active VPP participants; and 97 participants withdrew at Merit and did not advance to Star. More than 52 percent of Merit participants withdraw at the Merit level and did not go on to pursue Star level recognition.
As for Corporate participation, it was intended to provide a more efficient process for corporations interested in having multiple facilities participate in VPP. Currently, there are five VPP Corporate participants. All other VPP Corporate participants have either withdrawn or have been terminated.
Over the years, the interest in VPP Corporate has declined due to decreased corporate resources to prepare sites for VPP. The resource savings envisioned for corporations and OSHA, as a result of a streamlined process, have not been realized. Corporations are no longer submitting applications. Since the establishment of the Corporate Pilot and the subsequent formal adoption of VPP Corporate as a way to participate in VPP, only one corporation has been successful in meeting the criteria and goals of VPP Corporate.
Allocating OSHA resources to support a process that does not result in a significant savings to OSHA or participating companies is not prudent. Corporations are still eligible and encouraged to participate in VPP through site-based or mobile workforce options.
Now, I need to address some other difficult issues.
First, although we continue to add new participants to the program every year, I understand there are concerns that VPP is not growing as quickly as it has in the recent past. This is in part a result of resource limitations that I just described and partly a result of companies leaving VPP because of economic difficulties.
However, this lower rate of growth is also attributable in part to OSHA's concern with maintaining the integrity of the program. VPP is recognized and respected as a quality program — one that recognizes the best of the best, companies that excel in safety and health and show that it is possible for businesses to be both profitable and safe.
But here, as in other areas of life, size doesn't really matter. If the integrity of the VPP is compromised, it doesn't matter how many participants the program has or how fast it is growing. Over the past years, unfortunately, the program has faced very difficult challenges in this area. During the middle of the last decade, VPP grew so rapidly that the high number of reapprovals required as a result of that growth has put a serious resource strain on the agency's resources. And failure to conduct reapprovals raises the likelihood that some VPP participants may no longer meet the necessary conditions. We are now forced to devote most of our VPP resources toward conducting those reapprovals to ensure that everyone in the program deserves to stay in the program.
The good news is that OSHA's Regional and Area Offices are doing a great job of tackling this backlog of reapprovals. We are making significant headway and we anticipate eliminating the backlog by the end of 2013.
Moreover, when injury and illnesses numbers in VPP companies start rising; when significant incidents occur; when serious violations are identified; or, when VPP policies are violated — OSHA must be ready to take swift action. As the Center for Public Integrity pointed out in 2011, there had been numerous fatalities at VPP sites since 2000, and often no action was taken against the participating companies, even in some cases where the fatalities were linked to serious or willful violations. They also found that some companies were retained in the VPP, even when their injury and illness rates were worse than the averages for their respective industries.
Even more far-reaching than the media's criticism have been the inconsistencies addressed by the Government Accountability Office reports of 2004 and 2009, which have prompted many of the changes that OSHA is seeking to implement as the VPP evolves.
In its first report, GAO warned that the VPP was growing faster than OSHA's resources might be able to sustain. In 2009, GAO found that OSHA did not have sufficient internal controls to ensure the quality of VPP worksites, and that its oversight of VPP sites was limited. For example, GAO reported that OSHA had not been following through with appropriate action when fatalities or serious injuries occurred at VPP sites, as documented two years later in the Center for Public Integrity's reporting.
In response to the GAO recommendations, OSHA issued six Policy Memoranda that are designed to strengthen the management and internal control of VPP. A seventh memorandum has also been completed: this memorandum clarifies policy procedures that occur following a fatality or enforcement activity at VPP sites, including those actions taken under the 11(c) whistleblower provision of the OSH Act.
The 2004 GAO report also noted that OSHA has never conducted an adequate assessment of the Voluntary Protection Program. We think that the time has come to conduct a rigorous, academic-based examination of the program. I've asked senior managers at OSHA — Doug Kalinowski, Dorothy Dougherty and Kim Locey — to meet this week with the VPPPA Board to initiate an OSHA-funded pilot study to investigate the feasibility and design issues surrounding this important evaluation.
Many of you in the room here today have tried to capture and quantify what VPP means to your own organization. We hope you will participate in this effort by sharing your experience, ideas, and data with the study group. On Tuesday afternoon at 3:30 pm in room 304-A, Dr. Ben Amick from the University of Texas School of Public Health will be leading a roundtable to discuss this study and gather your input on key issues and data sources.
Also last year, as part of OSHA's comprehensive response to GAO, as well as the ongoing VPP improvement process, we established a workgroup to review the administration of the program. In particular, the workgroup report focused on: ensuring the program's continued value and relevance as a model of excellence; identifying changes in policy, performance requirements, and procedures that will improve the program and maintain its integrity; operating the program consistently throughout the ten OSHA Regions; and finding ways to address resource issues without compromising VPP's rigorous standards and requirements. Implementation of many of the workgroup's recommendations is progressing.
A Consistent Approach to Incentive Programs
Now, I'd like to spend a few minutes discussing an issue that I know many of you find controversial: OSHA's incentive program policy.
In April 2011, due to our concern about workplace policies and practices that can discourage workers from reporting injuries, and following discussions with VPPPA leadership, OSHA clarified the policy and procedures governing the review of safety and health incentive programs run by VPP participants and applicants. The instruction stated that a company whose incentive program has the potential to discourage worker reporting fails to meet the VPP's safety and health management system requirements. After additional discussion with the VPPPA, OSHA further refined that policy in June of 2011.
As for the incentive program policy, our position has been consistent over the past three years. In my 2009 speech at the 25th Annual VPPPA Conference I explained that we would be looking at how certain incentive programs can discourage workers from reporting injuries and illnesses. In August, 2010, at the 26th Annual VPPPA Conference, Dr. Michaels stated that "We cannot tolerate programs that provide this kind of negative reinforcement, and this type of program would keep a company out of the VPP until the program or practice is corrected." The VPPPA endorsed this position, saying "the association and its members disapprove of programs that discourage employees from reporting injuries because they want to receive a reward."
Some incentive programs — especially those based on injury and illness rates — discourage workers from reporting injuries. We've seen companies, for example, offer a pizza party or enter workers into a raffle if they meet a goal of not incurring reportable injuries over a specified period of time. Programs like these, while possibly well-intentioned, ultimately discourage workers from reporting injuries because they want to receive the reward or do not want to be perceived as having ruined it for everyone.
If workers don't feel free to report injuries or illnesses, an entire workforce is put at risk: Employers don't learn about and correct dangerous conditions that have resulted in injuries, and injured workers may not receive proper medical attention or workers' compensation benefits to which they are entitled. This is not what we want and ultimately, I do not think it is what you want, either.
But we certainly are not opposed to all incentive programs. On the contrary, a positive incentive program — one that encourages or rewards positive employee involvement, for serving on safety and health committees, completing safety and health training, or reporting injuries, illnesses, close calls or hazards — is a valuable component of a VPP-quality safety and health management system.
Another GAO report, in April 2012, confirmed the problems with rate-based incentive programs. The GAO recommended that OSHA:
"Implement criteria on safety incentive programs and other workplace safety policies across all of its cooperative programs such as VPP and SHARP. The criteria should be consistent with the most recent VPP guidance memorandum that prohibits employers with safety incentive programs that focus on injury and illness rates from participating in the program."
Since our policy was implemented over a year ago, most companies with impermissible incentive programs have voluntarily withdrawn them. Only one company with several facilities has forced us to terminate their participation. This is unfortunate, but we believe that VPP companies must lead the way, promoting safety programs that do not discourage reporting.
Meanwhile, in March of this year, OSHA issued a general enforcement memo stating that incentive programs and a variety of other disincentive policies and practices may be in violation of OSHA's non-discrimination language (Paragraph 11(c) of the Act) and/or OSHA's recordkeeping standard.
I know some have argued that if these policies are just a small part of the health and safety program it shouldn't matter. Our response, again, is that in this case "size doesn't matter." If workers are discouraged from reporting, that's a bad thing; and if these programs are just a small, insignificant part of a larger health and safety program, then no one should have any problem eliminating them.
Now, I know that not every VPP participant agrees with this policy, but I think we can all agree that VPP participants need to be seen as national leaders in safety and health. It is inconsistent with that leadership role to support policies that a consensus agrees can potentially undermine workplace safety and health.
An Opportunity for Transformation
Before I conclude, I must take a moment to recognize the able leadership of the VPPPA's outgoing Executive Director, Davis Layne. After serving our nation with the highest standards of integrity in the position of my counterpart as Deputy Assistant Secretary of Labor at OSHA, Mr. Layne's visionary leadership at the VPPPA has strengthened the program and proven to be a tremendous boon for worker safety and health.
His dedication and focus on customer service at the VPPPA National Office has been unmatched. His collegiality and creativity will be missed.
Davis, I wish you all the best in your future endeavors, and I look forward to working with your successor as we continue to make VPP the exemplary cooperative workplace safety and health program in the United States.
Finally, I want to emphasize that this program — and each and every one of you — has the opportunity to help us achieve lasting change in the American workplace. VPP participants are models for effective employee protection in your respective industries. You and your employees reap the greatest benefits — in fewer injuries and illnesses as well as reduced workers' compensation costs and decreased employee turnover.
This transformation of the workplace has been the intent of everything we've done at OSHA to date — most notably in our pursuit of establishing an injury and illness prevention standard. In our effort to bring those programs from the best to the rest, OSHA will push forward in its effort to spread the benefits of injury and illness prevention programs to all American companies.
VPP participants can play a crucial role in laying the groundwork for advancing those benefits. You've done it. An effective national injury and illness prevention program that closely resembles the type of health and safety program that is at the core of the VPP will fundamentally alter the notion of what it means to provide a safe and healthful workplace.
Your voice is crucial in educating our policy makers, the media, and the American public. Your voice is extremely influential. You have street cred. We need your example.
And your voice is needed not just to promote injury and illness prevention programs. As this country continues to debate the role of government in protecting worker safety and health, the importance of OSHA standards, the effectiveness of the regulatory process, along with cooperative programs — all these are areas where our policy makers and the news media would benefit from your perspective and experience.
We are in this struggle together. We need to work together to move our common agenda forward. But we need you, as an organization, to move beyond just advocating for the interests of VPP members to become something more than a narrow interest group — to advocate and educate on behalf of all American workers and all American companies.
Working together, if we can show policymakers and the public that the type of changes we're proposing are legitimate and feasible, based on documented experience, then we can achieve decisive action on behalf of all workers.
It is chiefly because of the example you set for all American workplaces that the VPP can continue to rely on the full support of OSHA and the Department of Labor.
Thank you and have a great conference.
SGE of the Year Award
It is now my great honor to present VPPPA's annual SGE of the Year Award. OSHA is grateful for the commitment of VPP employers who sponsor their SGEs' participation.
How many of you are Special Government Employees? If you are an SGE, please stand up and be recognized...Thank you!
Because SGEs are so important to VPP, eight years ago we established an SGE of the Year Award. This award recognizes a Special Government Employee "who epitomizes and exhibits exceptional support, effort and action in VPP, and in so doing sets him-or-herself apart from other SGEs."
The person selected must: be actively involved in volunteer activities that benefit VPP; perform outreach and assistance to employers and workers outside their own company; and have demonstrated an outstanding commitment to the partnership ideals of VPP.
Ten worthy SGEs have been nominated for this annual award. As I announce the nominees for the 8th Annual SGE of the Year Award, would they please join me on stage?
Region 1: Steve Jocher, Evonik Cyro LLC
Region 2: William Anzovino, Dolce International
Region 3: Dino Avarino, Delta Air Lines
Region 4: Chris Meeks, Southwire
Region 5: Rich Bizek, ABB Inc.
Region 6: Tim Nolen, Fite Fire & Safety
Region 7: Jon Alexander, Monsanto
Region 8: John Keller, Tesoro Petroleum
Region 9: Mike Kinney, National Security Technologies, LLC
Region 10: Rick Zimmerman, Mission Support Alliance, LLC
Congratulations on your nomination and your commitment to worker safety and health. Each of you is a champion, a true VPP Star!
Let's give this year's nominees a big round of applause...
It is now my honor and pleasure to announce the recipient of the 2012 SGE of the Year Award. Please join me in recognizing this year's recipient: Region 7's Jon Alexander.
Jon Alexander is the Contractor/Guest Safety Lead for Monsanto World Headquarters in St. Louis, Missouri. During 2011, Jon participated in three evaluations as an SGE. Jon mentored three VPP sites in 2011 to prepare them for their VPP recertification evaluations. He also mentored six potential applicants in the St. Louis area.
Jon served as the Region VII VPPPA Chairperson in 2011.
Jon arranges for his site to host the SGE course annually. In 2011, his site hosted the SGE course in July. Jon also served as a co-instructor for the SGE course. He has been a co-instructor for the course for the last six years.
Jon arranged for and co-instructed two VPP Application Workshops in 2011. Jon also arranged for and co-instructed two VPP Strengthening Star Quality Workshops in 2011.
Jon conducted presentations regarding contractor safety and health at the Iowa Governor's Conference and at the St. Louis Chapter of the National Safety Council in 2011.
Jon possesses excellent hazard recognition skills especially in the areas of contractor safety, machine guarding, fire protection, and life safety code. He excels in assisting employers with improving worker involvement programs and in improving their safety and health training. Jon willingly offers to share his employer's safety and health programs with the site being evaluated if it will assist the site in bolstering their own programs.
Jon: On behalf of OSHA, the entire VPP community, and the federal government, we sincerely thank you. Congratulations.