Rumblings from Congress indicate that a fresh look at OSHA enforcement may be high on the legislature’s agenda after the fall elections. If so, a major shift in federal policy could be in the making.

Regulatory Philosophy

The key question is: Relatively speaking, how should OSHA allocate resources between efforts to enforce standards and efforts to foster voluntary compliance?

Prior to 1970, the federal government did not have an agency solely devoted to job safety regulation. Some companies embraced safety; others did not. Finally, in 1970, after years of union pressure, Congress passed the Occupational Safety and Health (OSH) Act, and it was signed into law by President Richard Nixon.

After a Republican majority took control of the House and Senate in 1995, the federal government revised its stance on OSHA enforcement. In place of inspections, the agency shifted toward more voluntary compliance agreements with industry groups. In 1996, OSHA inspections dropped to an all-time low and have never climbed back. Indeed, when adjusted for the growing size of the American workforce, inspections dropped about 60 percent between 1988 and 2006. OSHA’s current enforcement budget is 12 percent lower than in 1980.

“The data since 1995 tell the rest of the story,” says LIUNA General Secretary Treasurer and LHSFNA Labor Co-Chairman Armand E. Sabitoni. “Between 1970 and 1995, the fatality rate fell sharply from 18 to five deaths per 100,000 workers per year. Since 1995, however, it’s dropped only slightly, from five to four. And from preliminary data we’ve seen from a number of states, we expect the number of fatalities and the fatality rate to actually go up for 2007 and 2008.”

Regulatory Bite

According to Sabitoni, inspections are fundamental to the strategic success of OSHA, but, with a relatively small inspection force, target selection is critical to reaching the most hazardous worksites which are often the projects of smaller companies. Unfortunately, given the slim possibility of an OSHA inspection, some companies have decided that an occasional OSHA fine is just a cost of doing business – no need to invest in safety; just pay the fine if we’re ever actually caught.

Regulatory Options

Changing this attitude will require more support and funding from Congress, and indications are that Congress will move in that direction.

Edward Kennedy chairs the Senate Committee on Health, Education, Labor and Pensions, and he issued a sharp critique in April of OSHA’s failure to punish safety violations that kill workers. He notes that the maximum punishment for a willful safety violation that leads to a worker’s death is a misdemeanor and six months in prison. Even so, only 21 percent of eligible cases are referred for possible prosecution and, of those, only 4.2 percent are actually brought to trial. Moreover, while the maximum fine for any willful violation is $70,000, after negotiation and review by OSHA supervisors, the actual penalties imposed average only $29,400, an average cut of 58 percent from the fines initially set by field inspectors. According to Peg Seminario of the AFL-CIO, the total penalty in fatality cases averages only $10,133.

Sabitoni is optimistic that a swing back toward stronger enforcement will pay off with fewer deaths and injuries. “OSHA has slacked off in the last decade, and the data proves the point,” he says. “The agency can never inspect all jobsites, but with more inspectors, better targeting and stronger penalties, it can constrain companies that might otherwise cut corners on safety. Once it does that, we’ll see renewed progress in lowering the overall fatality rate.”

[Steve Clark]