Acknowledging the alarming polarization and gridlock of Congress,
and the startling, rightward shift of the political spectrum, you
regularly hear people declare that there is no way we could get
something as ambitious as OSHA (Occupational Safety and Health Act)
passed today, not in this dreadful climate.
Despite being signed into law in 1970 by a Republican (Nixon)
administration, a regulatory act as progressive and comprehensive as
OSHA would, today, be considered too toxically invasive and too
“federal” to have any chance of passing. And it wouldn’t just be those
anti-government Republican advocates of “self-policing” leading the
charge. Indeed, legions of gutless, sharp-eyed Democrats would join
On the bright side, it can be argued that this polarization and
gridlock are precisely what prevent OSHA from being repealed outright.
But the fact that it hasn’t been repealed doesn’t mean OSHA is doing the
job it was intended to do. Incredibly, in over 40 years there has been
only one monetary increase in penalties, despite inflation.
Predictably, this has led unscrupulous employers to choose being hit
with a miniscule fine rather than investing in a safer workplace. The
fallout of this arrangement is that each year more than 5,000 American
workers are killed on the job.
Which is why a bill (HR 2067), known as PAWA (Protecting America’s
Workers Act) has been introduced in Congress. Its purpose is to
basically modernize and upgrade OSHA—to equip it with the tools
necessary to ensure safe work environments—by increasing fines and
penalties, expanding jurisdiction, raising certain misdemeanors to
felonies, extending reporting deadlines, punishing repeat offenders more
In his March 16, 2010, testimony before the Subcommittee on Workforce
Protections, and the Committee on Education and Labor, David Michaels,
Assistant Secretary for Occupational Safety and Health, made the case
for passage of PAWA, arguing that OSHA was desperately in need of help.
According to Michaels, despite tales of crushing, debilitating fines,
the average OSHA penalty is around $1,000. That’s it: a thousand
bucks. More revealingly, he notes that “the median initial penalty
proposed for all investigations in cases where a worker was killed (as
of FY 2007) was just $5,900.” Again, in more than 40 years OSHA has had
only one increase in monetary penalties. And because the whole point
of a monetary penalty is to serve as a deterrent, it’s no surprise that
fatalities continue to occur.
Other regulatory agencies have far greater latitude than OSHA in
assessing fines. For instance, the Dept. of Agriculture can levy
$130,000 on milk processors who willfully violate the Fluid Milk
Promotion Act The FCC can fine a TV or radio station as much as
$325,000 for indecent broadcasts. The EPA can hit companies with
$270,000 for violations of the Clean Air Act, and penalize them $1
million “for attempting to tamper with the public water system.”
The astounding part is that employers
continue to complain bitterly about the extent to which OSHA interferes
with their businesses, as if American commerce were being systematically
terrorized by this villainous safety agency.
Yet, as Michaels points out, “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 willful violation (my italics) of an OSHA
requirement—is $70,000.” That’s a mind-blowing statistic. But if
$70,000 is the maximum penalty, even for “willful and repeated
violations,” what’s the minimum penalty for such violations? Answer:
While the following is clearly an apples-and-oranges comparison, it’s
worth mentioning. Per the terms of the Montreal Convention of 1999
(formally known as the “Convention for the Unification of Certain Rules
for International Carriage by Air”) the family of a person killed in an
airline crash gets about $175,000, with no quibbles. That $175,000
happens to be the figure the carrier signatories were willing to pay.
But if you’re not lucky enough to die in a plane crash, if you die at
work instead—say, if you slip and fall into a baling machine and are
crushed to death—you’re worth only about $5,900. The astounding part of
this isn’t the paltry sum of $5,900. The astounding part is that
employers continue to complain bitterly about the extent to which OSHA
interferes with their businesses, as if American commerce were being
systematically terrorized by this villainous safety agency.
And the other astounding part is that the media continue to buy that
story. You never read mainstream accounts where a ridiculously lowball
OSHA fine is the central story. You never read about some guy who dies
on the job, and OSHA fines the employer only $1,400, and that measly
pay-out becomes the story’s angle.
Instead, the media do the exact opposite; they cherry-pick; they
glorify; they use as an example of OSHA’s “dominion” the recent
multi-million dollar fine of BP (British Petroleum), as if that
anomalous levy were representative. But as Michaels notes in his
testimony, since passage of OSHA in 1970, “fewer than 100 cases have
been prosecuted [criminally] while more than 300,000 workers have died
from on-the-job injuries.”
Although PAWA could go a long way toward rectifying these glaring
inequities, it’s given little chance of passing. Workers shouldn’t look
to Congress for protection. In truth, the only realistic hope they
have of working in a safe industrial environment is to join a union,
because the statistics are overwhelming. Union jobs are clearly safer
than non-union jobs. And given that a union’s sole concern is the
welfare of its members, why wouldn’t they be?
David Macaray, a Los Angeles playwright and author (“It’s Never Been Easy: Essays on Modern Labor
”), was a former union rep. He can be reached at firstname.lastname@example.org
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