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Penalties Expand in Proposed OSHA Legislation
Business leaders are lobbying against a bill that may see HR leaders -- and other directors and officers -- found criminally liable for "knowing" about workplace-safety violations. A vote in the House of Representatives is expected to take place soon on the legislation, which also makes some OSHA violations felonies and increases potential jail time.
Human resource executives could be held criminally liable for their company's safety violations if a proposed new workplace-safety bill passes into law, say opponents of the bill. That's just one of the provisions that business organizations object to in H.R. 5663, the Robert C. Byrd Miner Safety and Health Act of 2010, which is expected to be voted on soon in the House of Representatives. The bill includes the most sweeping changes to the Occupational Safety and Health Act in its 40-year history. The legislation started out as a bill to toughen mining safety laws and penalties in the wake of the Upper Big Branch Mine explosion that killed 29 coal miners in West Virginia last April.
The U.S. House Committee on Education and Labor added provisions of another bill under review, the Protecting America's Workers Act, H.R. 2067. That bill, which is heavily supported by labor organizations, amends the OSH Act and applies to most private businesses. The amendments strengthen whistleblower protections, speed up abatement of cited hazards and increase civil and criminal penalties under OSHA, which haven't been changed by law since 1990. "The point is they're using this highly visible accident that has raised concerns [about mine safety] to advance a wish list and slip it under the radar," says Daniel Yager, general counsel for the HR Policy Association in Washington, D.C.
The bill was voted out of committee on July 21 by a 30-17 vote; no House vote has been scheduled yet. "H.R. 5663 makes comprehensive, common-sense reforms to strengthen our nation's mine safety laws," states U.S. Rep. George Miller, D-Calif., chair of the committee. "This legislation will set clear, yet fair criteria to identify mines with significant safety problems in a way that cannot be gamed by operators."
But many business groups are lobbying aggressively against the OSHA-related parts of the bill that come from the PAWA. They argue that the law punishes violators instead of improving safety conditions, and will just drive up litigation and legal fees. "It's two bills in one. People think [it's about] mining safety, but it's the most sweeping overhaul of the OSH Act since 1970," says Keith Smith, director of employment and labor policy with the National Association of Manufacturers in Washington. "... Unfortunately it will impose added cost burdens and increase the threat of litigation for manufacturers of all sizes." The Coalition for Workplace Safety, a coalition of business groups and employers, wrote to members of the House of Representatives on July 26 objecting to the bill. "The CWS believes that instead of improving workplace safety, this bill will only increase the adversarial nature of the relationship between Occupational Safety and Health Administration (OSHA) and employers, and create more confusion leading to increased litigation and compliance costs," states the letter, which was signed by some 240 businesses and employers.
Opponents of the legislation say the bill imposes stiff penalties and focuses on punishing employers rather than preventing accidents. Under the bill, violations that result in death or serious bodily injury are now a felony, rather than a misdemeanor. If a violation results in a fatality, the employer could be jailed up to 10 years for a first offense and 20 years for a second. In the case of serious bodily injury, the employer faces up to five years for a first offense and 10 years for a second. The maximum civil penalty for a violation goes from $70,000 to $120,000.
There's a "dichotomy" between punishment and prevention, says Jonathan Snare, a partner with the Morgan Lewis & Bockius law firm in Washington, who worked for OSHA as a former deputy assistant secretary and former acting assistant secretary. "You need to prevent [accidents] rather than punishing employers. Most are small businesses," he says.
In his formal testimony on behalf of CWS before the House committee, Snare stated: "The concern that the CWS has with this proposed legislation is that its dramatic changes to the OSH Act are focused exclusively on punishing employers which, at the end of the day, will not result in an actual 'real world' impact that improves workplace safety and health." The bill broadens the definition of employers who are held criminally liable to include "any officer or director." Opponents believe that means HR directors, too. "There is great uncertainty about what that phrase means. ... The language is broad and vague enough to incorporate an HR director. If there is some attachment to a safety function, he could be held personally liable," explains Marc Freedman, executive director of labor-law policy with the U.S. Chamber of Commerce in Washington.
Snare testified that the business coalition "believes this proposal will result in a witch hunt to hold officers or directors responsible. Expanding criminal liability to any officer or director will make corporate personnel unduly subject to prosecution even if they generally have no involvement in day-to-day operations." The bill also changes the level of intention for criminal violations from "willful" to "knowing." The term "knowing" is used in environmental law, but has no history in workplace-safety law, says Freedman. "You have instant confusion and instant uncertainty. It will lead to more litigation and legal challenges -- couple that with the probability HR people could be held liable personally for 'knowing.' " Opponents also argue the bill violates an employer's right to due process because if a company challenges an OSHA violation, it has to immediately abate -- or fix -- the hazard instead of waiting for its appeals to be exhausted. "Just like any person accused of violating a law, employers have a right to due process before they can be forced to comply with costly and disruptive abatement measures specified by an OSHA inspector unfamiliar with the workplace," states the CWS in its letter. Snare says it would be like "admitting your guilt before the trial." July 28, 2010 Copyright 2010© LRP Publications |
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