Needed Changes or Wrong Focus?

As Congress considers the Protecting America's Workers Act -- which would update the Occupational Safety and Health Act of 1970 -- questions remain as to whether the changes, which include increased penalties and enhanced family-member rights, are long overdue, or misguided and unnecessary.

Monday, June 7, 2010
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The proposed Protecting America's Workers Act would have implications for HR professionals if the bill manages to make its way through Congress and become law.

Yet the potential impact on HR varies greatly depending on whom you talk to. If passed, the bill would increase civil and criminal penalties for employers, change whistleblower rules, and require more interaction with families of workers killed on the job. The revisions would be the first changes to the law since the Occupational Safety and Health Act of 1970 passed 40 years ago. The law is administered by the Occupational Safety and Health Administration.

"This bill would have a pretty dramatic impact on employers generally," said Jonathan Snare, a partner with Morgan Lewis & Bockius, who recently testified on the proposed legislation before the House Committee on Workforce Protections on behalf of the U.S. Chamber of Commerce. "In my view there are better approaches to deal with the problems than those being proposed. That would be a strategy focused more on prevention than penalties."

Meanwhile, Celeste Monforton, an assistant research professor in the Department of Environmental and Occupational Health at George Washington University, calls the proposed changes necessary, but far from sweeping.

"I look at this bill as being very modest," says Monforton, who also recently testified before the House Committee. "I don't see much of a major impact for companies that already have good health and safety programs. For me it's a no brainer."

Proposed Changes

Specifically the bill would:

* Increase civil and criminal penalties. Monetary amounts of fines would be increased and could be adjusted for inflation on a regular basis. In addition, language in the proposed bill states that an "officer or director" could be charged criminally for a workplace safety violation.

* Update whistleblower requirements in a way that is described as "aligning OSHA whistleblower provisions with other modern whistleblower laws."

* Enhance family member rights. The bill would require OSHA to provide more frequent investigation updates and information to family members of a worker killed on the job.

Snare, who in the mid-2000s worked for the Department of Labor and, for a period, ran both OSHA and the Department's Solicitor's Office, says that the attempt to update the law is "laudable" but that many of the proposed changes "may have unintended consequences and may not achieve the intent behind the bill." Specifically, Snare believes that the proposed changes are too focused on penalties.

"These proposed penalty increases and other sanctions will do nothing to assist employers to understand their obligations for workplace safety and health, such as the small business owner who is trying to understand how to comply with the requirements." Snare said. "Employers are obviously better served with more outreach and assistance materials than increased penalties."

When it comes to criminal penalties, the bill proposes that "any officer or director" of an organization could be held liable for criminal charges in cases of workplace injuries or fatalities. Snare said that the provision could have "a chilling effect" on safety directors or others who are in charge of workplace safety regulations.

Meanwhile, Monforton says that OSHA's penalties "must be severe enough to compel violators to change their behavior, and deter lawbreaking by those who might be tempted to flout safety and health regulations in an effort to increase production or cut costs."

Monforton agrees in the importance of focusing on education and prevention, but that strengthening penalties and fines is long overdue.

Involving Family Members of Victims

In regards to the provisions that would mandate that family members receive more frequent updates in the investigation process, Snare stresses that OSHA already has procedures in place to contact family members and get them involved in an investigation. The proposed changes don't have much value, Snare says, "other than to sensationalize presumably already emotional and sensitive matters."

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Monforton says her own experience tells her otherwise. She has dealt firsthand with family members who learned about OSHA investigation progress only through media accounts.

In addition, she stresses that family members can provide critical information to help investigators determine what happened on the job that led to the fatality. Monforton testified that her experience working on the 2006 Sago mine disaster investigation changed her views on the value of family members being involved in the process.

"I came to understand and appreciate that family members of victims can make a meaningful contribution to the accident investigation process," she said. "There is no one more interested in finding the truth about the cause of an on-the-job death than a worker's loved one."

Whistleblower Updates

Monforton says when she worked at OSHA during the early 1990s it was apparent to her that the whistleblower program "was the stepchild of the agency" and did not receive the attention it deserved.

The proposed changes would "substantially improve the protections and procedures for workers who raise concerns about safety and health problems," she said. In addition to making the law more comparable to modern whistleblower statutes, it would also allow workers to pursue a discrimination case independently, if OSHA declines to take the case or act in a timely manner.

"Health and safety whistleblowers must be afforded a private right of action to pursue their case," said Monforton. "PAWA would do just that, and this improvement is sorely needed."

Snare argues that the claim that whistleblower regulations are being aligned with modern whistleblower laws is ironic, "since most whistleblower provisions in other laws are modeled after OSHA's provision, and there is no evidence that expansion of whistleblower protections in appropriate."

As to where the bill goes from here, Monforton says much of the support to move the legislation forward is in the House. "It's quite possible the end of this legislative session could have a bill reported out of the House with no action from the Senate."

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