TESTIMONY OF DAVID MICHAELS
FOR OCCUPATIONAL SAFETY AND HEALTH
U.S. DEPARTMENT OF LABOR
THE COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS
APRIL 27, 2010
Chairman Harkin, Ranking Member Enzi, Members of the Committee, I want to thank the
Committee for inviting us here today. It is a sad, but true commentary on human nature and the
political system that great advances are all too often made only in the shadow of great tragedy.
Today, we are meeting under the shadow of two recent tragedies that have captured the headlines and
the hearts of the American people - the almost unimaginable deaths of 29 miners in West Virginia, and
the loss of seven refinery workers in Washington State. But we are also here today in the knowledge
that 14 Americans fail to come home from work to their families every single day of the year. In
addition, tens of thousands die every year from workplace disease and over 4.6 million workers are
seriously injured on the job. Most of these workers die one at a time, far from the headlines and nightly
news, remembered only by their family, friends and co-workers. I have here before me a pile of news
clips collected over the last couple of weeks describing workers, men and women, young and old who
have been crushed, electrocuted, burned, or who have died in falls, trench collapses and forklift
These are the invisible relentless daily tragedies of the American workplace. Thank you for inviting us
here today to work with you to find ways to stop this senseless sacrifice in American workplaces.
Until 1970, although certain industry-specific protections such as the Coal Mine Health and Safety Act
of 1969 existed, there was no national guarantee that workers throughout America would be protected
from workplace hazards. In that year the Congress enacted a powerful and far-reaching law - the
Occupational Safety and Health Act of 1970 (OSH Act).
The results of this law speak for themselves. The annual injury/illness rate among American workers
has decreased by 65 percent since 1973. Employers, unions, academia, and private safety and health
organizations pay a great deal more attention to worker protection today than they did prior to
enactment of this landmark legislation.
The promise of the Act, "to assure so far as possible every working man and woman in the Nation safe
and healthful working conditions" is needed today as much as it was 40 years ago. Yet the means
provided by the Act to achieve that worthy goal are tragically outdated and inadequate. It has now
been almost 40 years since the Occupational Safety and Health (OSH) Act was passed, and aside from
an overdue increase in penalties almost 20 years ago, no significant change has been made to this law.
There are far too many obstacles that prevent effective enforcement of the law, far too many loopholes
that allow unscrupulous employers to continue to get away with endangering workers. This must stop.
Now is the time to think seriously and act courageously to ensure that OSHA and MSHA have the tools
they need to enforce safe working conditions, and that this government develops effective incentives
that will ensure all employers do the right thing. If we are to fulfill Secretary Solis' vision of Good
Jobs for Everyone, we must address these urgent problems. Good jobs are safe jobs, and American
workers still face unacceptable hazards.
We all know that most businesses want to do the right thing and will expend the necessary resources to
ensure that their workplaces are safe. We need to make sure that they have the information and
assistance they need to protect their employees. But there are still far too many businesses in this
country who continue to cut corners on safety, endangering the health and safety of their workers. As
Secretary Solis pointed out to President Obama in her report last week on the Upper Big Branch mine
disaster, she is committed to taking action now to stop reckless mine operators and other business
owners who risk the lives and health of their workers. Too often, we see employers who assess the
benefits of refusing to comply with the law and compare them to the costs of complying with the law.
If they find that the costs of compliance outweigh the penalties they will face if caught, they opt to
gamble with their workers' lives. This is a "catch me if you can" approach to safety and health. It is
what we saw in action at Upper Big Branch and what we at OSHA see far too often in the workplaces
We know that we do not have, nor will we ever have enough inspectors to be in every workplace often
enough to make sure that all workplace safety laws, rules and best practices are followed. Therefore,
we need to find ways to leverage our resources to ensure the goals of the OSH Act are met. Our
mission must not be to punish or react, but to require employers to plan, prevent and protect.
To do this effectively, major changes need to be made in the Act. The Occupational Safety and Health
Act is almost 40 years old. Since enactment, the Act has not been significantly modified in all of those
years and has not kept up with many of the significant advances made in other laws, including
consumer and worker protections.
OSHA has already taken broad steps toward this goal. Just yesterday, the Labor Department released
its Spring regulatory agenda which includes a new enforcement strategy - Plan/Prevent/Protect - an
effort designed to expand and strengthen worker protections through a new OSHA standard that would
require each employer to implement an Injury and Illness Prevention Program tailored to the actual
hazards in that employer's workplace.
Instead of waiting for an OSHA inspection or a workplace accident to address workplace hazards,
employers would be required to create a plan for identifying and remediating hazards, and then
implement this plan. Essentially, through this common sense rule, we will be asking employers to find
the safety and health hazards present in their facilities that might injure or kill workers and then fix
those hazards, also known as "Find and Fix." Workers would participate in developing and
implementing such a plan and evaluating its effectiveness in achieving compliance. OSHA will soon
initiate rulemaking on this standard with stakeholder meetings, the first to take place in June in New
Additionally, we are doing everything we can within the limits of our law to expand and strengthen
workplace protections. Last week, we announced a new initiative to implement long-overdue
administrative modifications to our penalty formulas, which will have the effect of raising OSHA
penalties while maintaining our policy of reducing penalties for small employers and those acting in
good faith. These changes will be well-advertised so that all employers are aware of the new policies.
However, OSHA believes any administrative changes we are able to make would still be inadequate to
compel bad employers to abate serious hazards. These steps are an effort to do the best with the
outdated, antiquated tools we have. But we can only do so much within the constraints of the current
We also announced that OSHA will implement a new Severe Violators Enforcement Program,
increasing our focus on repeatedly recalcitrant employers, which will be discussed in more detail later
in my testimony.
While important, both of these administrative measures are severely limited by constraints of current
law. To adequately plan, prevent and protect, the law governing OSHA must be updated to reflect the
The Administration supports the Protecting America's Workers Act (PAWA), which makes meaningful
and substantial statutory changes to OSHA's penalty structure and enforcement program. PAWA,
coupled with our vigorous "plan/prevent/protect" regulatory agenda, will begin to make the "catch me
if you can" approach to workplace safety a thing of the past.
The most serious obstacle to effective OSHA enforcement of the law is the very low level of civil
penalties allowed under our law, as well as our weak criminal sanctions.
While most employers understand the business case and the moral case for providing a safe workplace,
many do not and the threat of penalties plays a major incentive in forcing them to comply with the law.
The deterrent effects of these penalties are determined by both the magnitude and the likelihood of
penalties. Swift, certain and meaningful penalties provide an important inducement to "do the right
thing." However, OSHA's current penalties are not large enough to provide adequate incentives.
Although OSHA can, in rare circumstances involving large numbers of egregious violations, generate
large penalties, most OSHA fines are far too small to serve as anything more than an inconvenient cost
of doing business.
I also want to stress here that OSHA enforcement and penalties are not just a reaction to workplace
tragedies; they serve an important preventive function. Just as the fear of a ticket and large fine keeps
the average driver from running red lights to make it to the meeting for which he or she is late, OSHA
inspections and penalties must be large enough to discourage employers from cutting corners or
underfunding safety programs to save a few dollars. And even the largest fines when levied on a giant
corporation have little effect on the company's bottom line.
Congress has increased monetary penalties for violations of the OSH Act only once in 40 years despite
inflation during that period. As a result, unscrupulous employers often consider it more cost effective
to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the
underlying health and safety problem.
Currently, serious violations - those that pose a substantial probability of death or serious physical
harm to workers - are subject to a maximum civil penalty of only $7,000. Let me say that again - a
violation that causes a "substantial probability of death - or serious physical harm" brings a maximum
penalty of only $7,000. Willful and repeated violations carry a maximum penalty of only $70,000.
After factoring in reductions for size, good faith and history, as well as other factors, the current
average OSHA penalty for a serious violation is only around $1,000. The median initial penalty
proposed for all investigations conducted in FY 2007 in cases where a worker was killed was just
$5,900. Clearly, OSHA can never put a price on a worker's life and that is not the purpose of penalties
- even in fatality cases. OSHA must, however, be empowered to send a stronger message in cases
where a life is needlessly lost than the message that a $5,900 penalty sends.
The current penalties do not provide an adequate deterrent. This is apparent when compared to
penalties that other agencies are allowed to assess. For example, the Department of Agriculture is
authorized to impose a fine of up to $130,000 on milk processors for willful violations of the Fluid
Milk Promotion Act, which include refusal to pay fees and assessments to help advertise and research
fluid milk products. The Federal Communications Commission can fine a TV or radio station up to
$325,000 for indecent content. The Environmental Protection Agency can impose a penalty of
$270,000 for violations of the Clean Air Act and a penalty of $1 million for attempting to tamper with a
public water system. Yet, the maximum civil penalty OSHA may impose when a hard-working man or
woman is killed on the job - even when the death is caused by a willful violation of an OSHA
requirement - is $70,000.
In 2001 a tank full of sulfuric acid exploded at an oil refinery in Delaware, killing Jeff Davis, a worker
at the refinery. His body literally dissolved in the acid. The OSHA penalty was only $175,000. Yet, in
the same incident, thousands of dead fish and crabs were discovered, allowing an EPA Clean Water
Act violation amounting to $10 million. How can we tell Jeff Davis' wife Mary, and their five
children, that the penalty for killing fish and crabs is many times higher than the penalty for killing
their husband and father?
The Protecting America's Workers Act makes much needed increases in both civil and criminal
penalties for every type of violation of the OSH Act and would increase penalties for willful or repeat
violations that involve a fatality to as much as $250,000. These increases are not inappropriately large.
In fact, for most violations, they raise penalties only to the level where they will have the same value,
accounting for inflation, as they had in 1990.
Unlike most other Federal enforcement agencies, the OSH Act has been exempt from the Federal Civil
Penalties Inflation Adjustment Act, so there have not even been increases in OSHA penalties for
inflation, which has reduced the real dollar value of OSHA penalties by about 39 percent. In order to
ensure the effect of the newly increased penalties do not degrade in the same way, PAWA indexes civil
penalties to increases or decreases in the Consumer Price Index (CPI). These penalty increases are
necessary to create at least the same deterrent that Congress originally intended when it passed the
OSH Act almost 40 years ago. Simply put, OSHA penalties must be increased to provide a real
disincentive for employers not to accept injuries and worker deaths as a cost of doing business.
Throughout its history, OSHA has faced the problem of employers who have allowed multiple serious
and repeated violations to exist across several of their workplaces. It isn't only the coal mining
industry that faces employers like Massey Energy that rack up dozens or hundreds of violations
throughout the corporation.
Sometimes even large penalties are ineffective. After OSHA cites these companies at one location,
workers often continue to get hurt or die from the same kinds of hazards at another site within the same
company. OSHA has only limited tools to require recalcitrant employers to abate life-threatening
hazards. As I stated earlier, OSHA issued its new Severe Violators Enforcement program (SVEP) last
week. SVEP is a refinement of the Enhanced Enforcement Program, designed as a supplemental
special enforcement tool to address recalcitrant employers who fail to meet their obligations under the
OSH Act. This program includes more mandatory inspections of an identified company; mandatory
follow-up inspections, including inspections at other locations of the same company; and a more
intense examination of an employer's history to assess if there are systemic problems that would trigger
additional mandatory inspections. This is about as close as OSHA can come, within the limits of our
law, to MSHA's "pattern of violations" system.
There are a number of improvements to OSHA's law that could allow us to implement a pattern of
violations authority that would facilitate more severe penalties when a pattern is identified. Additional
authority to propose higher penalties for "multiple repeat violations" could enable OSHA to address
situations in which companies demonstrate consistent and repeated disregard for the lives of their
In addition, under current law, OSHA cannot cite a repeat violation if the original violation occurred in
one of the nation's 21 "State Plan" states which administer their own OSHA programs. Permit me to
explain this. If a roofer who was not provided fall protection is killed after falling from a roof in Ohio,
OSHA will investigate and determine, among other things, if other employees of that contractor had
ever been injured or killed under similar circumstances. If OSHA had previously cited that employer
for violations of our fall protection rules in a state where we have jurisdiction, we could cite the
employer for a repeat violation. However, if the previous violation had occurred in nearby Indiana or
Kentucky, perhaps just a few miles from the site of the fatality, the law states that we could not classify
the events around the fatality as a repeat violation, even if the original violation involved a worker who
was killed under identical circumstances - simply because they were in State Plan states. This defies
any common sense definition of a repeat violation.
Enhanced civil penalties and an improved mechanism for going after repeatedly recalcitrant employers
are much needed. But also needed is a much more effective way of addressing the most egregious
employer wrongdoing. The solution here is enhanced criminal sanctions and the real threat of
incarceration for employers whose knowing violation of OSHA standards leads to the death or serious
bodily injury of an employee. It is a sad truth that nothing focuses attention like the possibility of
going to prison. Unscrupulous employers who refuse to comply with safety and health standards as an
economic calculus will think again if there is a chance that they will go to prison for ignoring their
responsibilities to their workers.
Under the OSH Act, criminal penalties are currently limited to those cases where a willful violation of
an OSHA standard results in the death of a worker and to cases of false statements or
misrepresentations. The maximum period of incarceration upon conviction for a violation that costs a
worker's life is six months in jail, making these crimes a misdemeanor.
The criminal penalty provisions of the OSH Act have never been updated since the law was enacted in
1970. The criminal provisions in the OSH Act are weaker than virtually every other safety and health
and environmental law. Most of these other Federal laws have been strengthened over the years to
provide for much tougher criminal sanctions. The Clean Air Act, the Clean Water Act, and the
Resource Conservation and Recovery Act all provide for criminal prosecution for knowing violations
of the law, and for knowing endangerment that places a person in imminent danger of death or serious
bodily harm, with penalties of up to 15 years in jail. There is no prerequisite in these laws for a death
or serious injury to occur. Other federal laws provide for a 20-year maximum prison sentence for
dealing with counterfeit obligations or money, or mail fraud; and for a life sentence for operating
certain types of criminal financial enterprises.
Simply put, serious violations of the OSH Act that result in death or serious bodily injury should be
felonies like insider trading, tax crimes, customs violations and anti-trust violations.
PAWA would also amend the criminal provision of the OSH Act to change the requisite mental state
from "willfully" to "knowingly." Most federal environmental crimes and most federal regulatory crime
use the term "knowingly," rather than "willfully." Under a "knowing" standard, the government must
only prove that the defendant had knowledge of the facts that constitute the offense - i.e., that the
conduct at issue was not accidental or a mistake. Harmonizing the language of the OSH Act with that
of these other statutes would add clarity to the law. PAWA would do that through the provision that
any employer is subject to criminal prosecution if that employer "knowingly" violates any standard,
rule or order and that the violation results in death or serious bodily injury to an employee. OSHA
strongly supports this change in the law.
ABATEMENT DURING CONTEST
Another major obstacle to protecting workers in the OSH Act is that OSHA cannot force employers to
fix an identified workplace hazard if the employer has contested the violation until after the contest is
When OSHA identifies a serious workplace hazard, one capable of killing or seriously injuring a
worker, we cite that employer. Employers then have the right to contest that citation. This is as it
should be. The problem - often the fatal problem - with the law as currently written, is that the
employer is under no obligation to fix the unsafe condition until the contest is settled, which can be
months - or even years - after the initial citation. Workers are, therefore, left without protection from
identified heath and safety hazards.
We don't tell truck drivers to continue operating on faulty brakes for weeks or months until their court
appeal is heard. So why should we allow employers to continue operating dangerous machinery for
months or years after the hazard has been identified and cited?
The OSH Act can allow dangerous conditions to exist for many years while litigation is under way.
For example, in 1994, OSHA cited a Dayton Tire facility in Oklahoma City for multiple violations of
the Lock Out/Tag Out standard that had already killed one worker. An Administrative Law Judge
(ALJ) affirmed the violations almost three years later, and the Occupational Safety and Health Review
Commission then accepted the case for review, but has still not issued a decision. In 2006, 12 years
after being cited, Dayton closed the facility without ever abating the violations.
This loophole in the law has had fatal consequences. OSHA has identified at least 30 cases between FY
1999 and FY 2009 where workers have been killed during the contest period after a citation was filed.
The only situation worse than a worker being injured or killed on the job by a senseless and preventable
hazard, is having a second worker needlessly felled by the same hazard.
The lack of any mechanism to force employers to abate hazards during the contest period also
contributes to the low level of OSHA penalties. OSHA inspectors are primarily interested in making
sure that workers are safe, not in collecting fines. Many employers have learned that by threatening to
appeal even the most irrefutable hazard, they force OSHA staff to choose between immediate
abatement of a life-threatening hazard, or pursuing violation through a lengthy appeal. Faced with a
situation where it may be months or years until a contested citation is settled and a hazard is fixed,
OSHA is often forced to settle at a much lower level than would be deserved in order to get faster
abatement of the hazard so that workers are safe.
OSHA supports a provision of PAWA that would require employers to abate serious, willful and repeat
hazards after a citation is issued during the contest period. This provision would also enable OSHA to
issue "failure to abate" notices at a workplace with a citation under contest, enhancing the right of
workers to be protected from the most egregious workplace hazards.
Now, it has been argued that mandated abatement during the contest period is "unjustified" and "an
outrageous trampling of due process rights." But those who feel this way should know that a similar
requirement has existed in the mine safety laws for 40 years without wreaking havoc in the mine
industry. OSHA is merely asking to provide general industry workers with the same protection that
miners have possessed for decades. In weighing the balance between employee protection and
employer contest rights, employee safety should come first.
OSHA will never be able to inspect every workplace every day, or even every year. Far from it.
Which is why Congress designed the OSH Act to rely heavily on workers to help identify hazards at
their workplaces. If employees fear that they will lose their jobs or otherwise be retaliated against for
participating in safety and health activities or expressing concern, they are not likely to do so.
Secretary Solis flagged the importance of robust whistleblower protections in preventing workplace
disasters by including a recommendation to improve the whistleblower provisions of the Mine Act in
her report to the President last week.
The OSH Act was one of the first safety and health laws to contain a provision for protecting
whistleblowers - section 11(c). Forty years ago, that provision was innovative and forward looking. In
2010, however, it is a legal dinosaur. It is clear that the OSH Act's whistleblower provision is in dire
need of substantial improvement. Notable weaknesses in section 11(c) include: inadequate time for
employees to file complaints; lack of a statutory right of appeal; lack of a private right of action; and
OSHA's lack of authority to issue findings and preliminary orders, so that a complainant's only chance
to prevail is through the Federal Government filing an action in U.S. District Court. Achieving the
Secretary's goal of Good Jobs for Everyone includes strengthening workers' voices in their workplaces.
Without robust job protections, these voices may be silenced.
In recent years, a number of more modern, more effective whistleblower protections have passed the
Congress with strong bi-partisan support. Additionally, there has been bi-partisan consensus for the
past twenty-five years on the need for uniform whistleblower protections for workers in every industry
- making the different whistleblower statutes more consistent and equitable. This Administration
supports uniformity as well.
The Protecting America's Workers Act expands the OSH Act's anti-retaliation provisions. The bill
codifies a worker's right to refuse to perform unsafe work, protects employees who refuse work
because they fear harm to other workers, prohibits employer policies that discourage workers from
reporting illnesses or injuries, prohibits employer retaliation against employees for reporting injuries or
illnesses, and grants workers the right to further pursue their case if OSHA does not proceed in a timely
Additionally, current laws give workers only 30 days to file an 11(c) complaint. It often takes workers
more than 30 days to learn what the law says and how to file a complaint. Many complainants who
might otherwise have had a strong case of retaliation have been denied protection simply because they
did not file within the 30-day deadline. For example, we received an 11(c) complaint from a former
textile employee who claimed to have been fired for reporting to management that he had become ill
due to smoke exposure during the production process. The worker contacted OSHA to file an 11(c)
complaint 62 days after he was fired, compelling OSHA to dismiss the case as untimely under existing
law. PAWA would increase the existing 30-day deadline for filing an 11(c) complaint to 180 days,
bringing 11(c) more in line with some of the other whistleblower statutes enforced by OSHA, and
greatly increasing the protections afforded by section 11(c).
The private right of action is another key element of whistleblower protections that is lacking in
OSHA's current 11(c) provision. It is critically important that, if an employer fails to comply with an
order providing relief, both DOL and the complainant be able to file a civil action for enforcement of
that order in a U.S. District Court. Most of the other whistleblower provisions that OSHA enforces
have this private right of action provision - certainly the OSH Act should be amended to include it and
PAWA does just that.
Finally, PAWA would codify a number of OSHA's high standards for professionalism and
transparency in conducting whistleblower investigations that are of critical importance to this
Administration. For example, PAWA requires OSHA to interview complainants and to provide
complainants with the respondent's response and the evidence supporting the respondent's position.
PAWA affords complainants the opportunity to meet with OSHA and to rebut the employer's
statements or evidence. While we train our investigators on the critical importance of conducting
thorough interviews with complainants and involving complainants in the rigorous testing of proffered
employer defenses, we believe that requiring these investigative steps by statute could only assist
OSHA in its mission of providing robust protection to occupational safety and health whistleblowers.
These legislative changes in the whistleblower provisions are a long-overdue response to deficiencies
that have become apparent over the past four decades. This legislation makes good on the promise to
stand by those workers who have the courage to come forward when they know their employer is
cutting corners on safety and health and guarantees that they don't have to sacrifice their jobs in order
to do the right thing. OSHA has the responsibility of administering 16 other whistleblower statutes in
addition to the provision in its own governing statute. The fact that almost all of those other statutes
are more protective to workers is a fact that needs to be addressed now, and this Committee has been
involved - with bipartisan support - in passing many of those whistleblower laws that provide far
greater protection than OSHA's law.
This hearing provides OSHA with the opportunity to identify areas where the Agency and the
Administration have identified needed legislative changes that to go beyond those proposed in PAWA.
These changes would strengthen the OSH Act and provide an added deterrent to businesses that ignore
workplace safety and health hazards.
I would propose amending the OSH Act to provide for assessment of civil penalties against employers
who violate the whistleblower provisions. Currently, while an employer found to be discriminating
against an employee must make the employee whole again, there is no provision for civil penalties
against employers. The provisions are not in the current version of PAWA but similar provisions are
included in the S-MINER Act that was passed in the House of Representatives in 2008. Under this
provision, any employer found to be in violation of Section 11(c) of the Act would be subject to civil
penalties of not less than $10,000 and not more than $100,000 for each occurrence of a violation.
Finally, as conclusion of these cases can often take many months, a provision should be made to
reinstate the complainant pending outcome of the case. The Mine Act provides that in cases when
MSHA determines that the employee's complaint was not frivolously brought, the Review Commission
can order immediate reinstatement of the miner pending final order on the complaint.
FAMILIES AND VICTIMS
PAWA includes a number of sections that would expand the rights of workers and victims' families.
OSHA has long known that workers, and often their families, can serve as OSHA's "eyes and ears,"
identifying workplace hazards. Workers injured in workplace incidents and their friends and family
often provide useful information to investigators, because employees frequently discuss work activities
and co-workers with family members during non-work hours.
In addition, family members and co-workers are sincerely interested in learning how an incident
occurred, finding out if anything could have been done to prevent it, and knowing what steps the
employers and employees will take in the future to ensure that someone else is not similarly injured or
While it is OSHA's policy to talk to families during the investigation process and inform them about
our citation procedures and settlements, this policy has not always been implemented consistently and
in a timely manner. In addition, OSHA's interactions with families and victims could certainly be
expanded without slowing down the enforcement process.
PAWA would place into law, for the first time, the right of a victim (injured employee or family
member) to meet with OSHA regarding the investigation and to receive copies of the citation or
resulting report at the same time as the employer at no cost. PAWA would also enable victims to be
informed of any notice of contest and to make a statement before an agreement is made to withdraw or
modify a citation.
No one is affected more by a workplace tragedy than workers and their families, so we fully recognize
and appreciate their desire to be more involved in the remedial process. However, we do believe that
clarification is needed of the provisions allowing victims or their representatives to meet in person with
OSHA before the agency decides whether to issue a citation, or to appear before parties conducting
settlement negotiations. Our fear is that this process could result in significant delays in our
enforcement process, which neither OSHA nor the families would want.
PREVENTING FRIVOLOUS CONTESTS
Some have argued that if OSHA's monetary penalties are increased, employers would be more likely to
contest enforcement actions and clog the system with litigation. We have certainly seen that
phenomenon in mine enforcement. The Labor Department's Report to the President on the Upper Big
Branch Mine disaster suggested one method of addressing this problem: requiring mine operators to put
significant penalty amounts into escrow. The Committee should look into this option for OSHA as
Not a week goes by that I don't read about a worker killed or seriously injured from a 10- or 15-foot
deep trench collapsing on top of them. The law says that trenches more than 5 feet deep must be
protected by a trench box or equivalent protection. These protections are well known and these deaths
are completely, easily and cheaply preventable. I would attest - and I don't think there is a single
construction safety expert in this country who would contradict me - there is no construction company
owner in this country who does not understand the hazards inherent in deep trenches or how to prevent
collapses. In fact, sometime in the 5th century BC, the historian Herodotus, observing the Phoenician
army digging trenches wrote of the hazards of trench collapses and how to avoid them. Yet, 2,500
years later, workers continue to die in trenches.
There is no reason why such a well-recognized and easily preventable violation that leads to the death
or serious injury of a worker should not be a presumptive willful citation. There are other violations
that would fall into the same category; workers working at great heights without fall protection, for
Currently, when OSHA identifies an imminent danger, such as a worker in a deep trench or at a high
elevation without fall protection, the Agency cannot take immediate action to shut down the process or
remove employees from harm until the hazard is corrected. OSHA must seek an injunction in Federal
District Court if the employer refuses to voluntarily correct an imminent danger. While this process
can work smoothly and rapidly in many situations where relatively quick court action can be obtained,
some hazards can result in death in minutes. In addition, inspectors often work far from the courthouse
when worker safety demands quick action.
In contrast, the Mine Act treats imminent danger orders as essentially self-enforcing, requiring mine
operators to evacuate miners in the affected area immediately, until the hazard is corrected, and then
seek review in the Commission. Unfortunately, OSHA does not have the same authority as MSHA,
which can order the withdrawal of miners or equipment if certain hazards are not abated.
The Committee might consider providing OSHA the authority, similar to the authority MSHA has, to
"tag" a hazard or workplace condition that poses an imminent danger of death or serious injury. The
employer would then be required to take immediate corrective action or have the workplace shut down.
Internal procedures could be developed to ensure that compliance officers do not take unjustified
CONTRACT EMPLOYEES AND MULTI-EMPLOYER WORKSITES
Another obstacle to effective OSHA enforcement is the growing use of contract employees and
OSHA's inability in certain circumstances to determine the hazards these employees face and to force
the responsible party to control those hazards.
For example, the General Duty Clause of the OSH Act addresses an employer's responsibility to
protect its own employees from recognized hazards, even where no standard exists. But the employer
is not responsible under the General Duty Clause for a hazard encountered by contract workers, even if
the employer creates or controls the hazard. Contract employees receive less training than direct-hire
employees so they may need added protection.
In modern, multi-employer work settings, employers are often responsible for the working conditions
of many workers who technically may be employed by others. Employers with control of complex,
multi-employer workplaces should bear responsibility for making the workplace safe and healthful not
only for workers on their own payroll, but for all affected workers. The wording of the present 5(a)(1)
of the OSH Act only requires an employer to provide safe working conditions for "his employees".
Extending an employer's general duty beyond its own employees to also protect contract employees
from recognized hazards that the employer creates or controls would enhance the utility of the general
The goal of this hearing is to identify barriers to enforcement and ways to encourage employer
compliance with the law. To that end, I would be remiss if I failed to mention one additional barrier to
protection for almost nine million workers in this country who provide this nation's most vital services:
It is a fact little known among the American public that public employees in the United States - who
respond in our emergencies, repair our highways, clean and treat our drinking and waste water, pick up
our garbage, take care of our mentally ill, provide social services and staff our prisons - are not covered
by OSHA unless the state in which they work chooses to do so. Today, almost 40 years after passage
of the Occupational Safety and Health Act, half of the states still do not provide federally-approved
coverage for public employees.
According to the Bureau of Labor Statistics, the total recordable case injury and illness incidence rate
in 2008 for state government employees was 21 percent higher than the private sector rate. The rate for
local government employees was 79 percent higher. Clearly, some public sector jobs are extremely
dangerous. Public employees deserve to be safe on the job, just as private-sector employees do.
In testimony before this Subcommittee in May 2007, Jon Turnipseed, Safety Supervisor for the City of
San Bernardino Municipal Water Department in California, said it most succinctly:
From my own view as a public sector employee, the simplest but most compelling reason is that
saving lives and preventing injuries always tops the list of values that our government holds
dear in every other responsibility it undertakes. State and local government workers are, in
many instances, the "first responders" upon whom we all depend. Whether a terrorist attack or a
natural disaster, these first responders are the first people who rush in to help save lives. We put
a premium on that capability in our society. These same people who protect the public from
hazards deserve no less of a commitment to occupational safety and health protections from
their employers, the public, and all of us here today.
Twenty-six states and one territory now provide federally-approved OSHA coverage to their public
employees and you will find that they consider it not a hardship, but a necessary provision for the
safety of their employees and the provision of good government. Nonetheless, in 2008 there were more
than 277,000 injuries and illnesses with days away from work among state and local governmental
employees. In a state that has public employee coverage, a public employer can be held responsible for
safety violations. A crane operator in New Jersey died from injuries after his head was crushed by a
cargo spreader in 2008. New Jersey, which has an OSHA program for public employees, issued a
citation for willful OSHA violations. However, if this tragedy had occurred in Pennsylvania or
Delaware, which have no public employee safety and health programs, the employer could not have
been held accountable.
Again, we support the Protecting America's Workers Act, which extends OSHA coverage to publicsector
employees. Because the extension of such coverage will have costs, it should occur over time,
and we welcome further discussion of implementation issues. But there is simply no good argument in
the 21st century for allowing public employees to be injured or killed under conditions that would be
illegal and strictly punished if they were private sector employees. The days of treating public
employee as second class citizens must come to an end.
* * * *
Mr. Chairman, as we prepare to observe Workers Memorial Day tomorrow we realize that our work is
far from done. Whether it be the death of 29 workers in a coal mine in West Virginia, the loss of six
employees in an explosion at an oil refinery in Washington State, or the single deaths that occur in
workplaces each day in America, this carnage amounts to an unacceptable burden for the workers of
America to bear in producing the goods and services that fuel our not only our economy, but also our
country. To take from President Obama's statement last week in the wake of the Upper Big Branch
mine disaster, we owe all workers action. We owe them accountability. We owe them assurance that
when they go to work every day they are not alone. They ought to know that behind them is a
government that is looking out for their safety.
I join with you, Mr. Chairman, in dedicating ourselves to bringing about the day when there will be no
more workers memorialized for dying on the job. Thank you again for the opportunity to testify
today. I am happy to answer your questions.