On Tuesday, the House Education and Labor Committee held a hearing on the Miner Safety and Health Act of 2010 (H.R. 5663), the worker safety bill that, in addition to addressing mine safety, would significantly increase employer civil and criminal penalties for violations of the Occupational Safety and Health (OSH) Act, strengthen whistleblower protections and provide greater rights for victims of accidents and their family members to participate in proceedings under the OSH Act. These provisions were initially included in the Protecting America’s Workers Act (PAWA) (H.R. 2067, S. 1580), but were incorporated into the broader mine safety bill last month.
In his testimony, (pdf) Occupational Safety and Health Administration (OSHA) Assistant Secretary David Michaels strongly endorsed the bill, explaining that Title VII of the measure “provides critical amendments to the OSH Act that would increase OSHA’s civil and criminal penalties, enhance whistleblower protections and victims’ rights, and give OSHA the authority to require abatement of serious hazards even if and while the employer contests citations issued for them.” Specifically, Michaels discussed the bill’s provisions that address the following areas:
- Civil penalties. According to Michaels, current penalties available under the OSH Act “do not provide an adequate deterrent. . . . The Miner Safety and Health 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.” The measure would also provides for inflation adjustments for civil penalties based on increases or decreases in the Consumer Price Index (CPI).
- Criminal penalties. The bill would amend the criminal provisions of the OSH Act and the Federal Mine Safety and Health Act to change the burden of proof from “willfully” to “knowingly.” An employer who “knowingly” violates any standard, rule, or order that ultimately causes or contributes to the death of any employee would be subject to a fine and up to 10 years in prison. Employers would also become subject under the OSH Act to criminal fines and imprisonment for “knowing” violations that result in serious bodily harm to an employee. “It is clear that nothing focuses attention like the possibility of going to prison.”
- Whistleblower protections. The legislation “makes explicit that a worker may not be retaliated against for reporting injuries, illnesses or unsafe conditions to employers or to a safety and health committee, or for refusing to perform a task that the worker reasonably believes could result in serious injury or illness to the worker or to other employees.”
- Burden of proof. Michaels deems the bill’s adoption of the “contributing factor” test for determining when illegal retaliation has occurred “a significant improvement” in the OSH Act’s anti-retaliation provision.
- Complaint procedure. The Act would increase the existing 30-day deadline for filing a retaliation complaint to 180 days. In addition, Michaels favors the bill’s allowance for a private right to enforce an order granted under the whistleblower provision. “It is critically important that if an employer fails to comply with an order providing relief, either DOL or the complainant be able to file a civil action for enforcement in a U.S. District Court.” Michaels also noted that the Miner Safety and Health Act permits complainants or employers to move their cases to the next stage in the administrative or judicial process if the reviewing entities do not make prompt decisions or rulings. DOL Labor Solicitor M. Patricia Smith similarly favored these provisions, explaining in her testimony (pdf) that “[f]or the first time, workers filing OSH Act whistleblower complaints would be entitled to an administrative hearing and review, instead of having to wait years to have their cases heard in District Court . . and would have the right to pursue their cases on their own behalf if the Department declines to take them.”
- Rights of victims’ families. The bill includes a section that would expand the rights of workers and victims’ families. According to Michaels, the bill “would help us in this area by placing into law, for the first time, the right of a victim (injured employee or family member) to meet with OSHA, to receive copies of the citation at no cost, to be informed of any notice of contest, and to appear and make a statement during settlement negotiations before an agreement is made to withdraw or modify a citation.”
- Duty to abate. Michaels testified that “[o]ne of the most significant changes that the Miner Safety and Health Act makes to the OSH Act is the provision that requires abatement of serious, willful, and repeat hazards during the contest period. Currently, if an employer contests an OSHA citation, that employer is not obligated to correct the hazard during the administrative contest period leaving workers exposed to serious or deadly hazards for months or years after the hazards have been identified.” The bill would also enable OSHA to issue failure to abate notices to a workplace with a citation under contest, which would carry a penalty of up to $7,000 for each day the hazard goes uncorrected.
Not all of those testifying spoke in favor of the bill. Jonathan Snare, speaking on behalf of the Coalition for Workplace Safety (CWS), criticized (pdf) the legislation, stating that it would “result in significant and dramatic changes to the OSH Act, with the imposition of a more punitive civil and criminal penalty structure, and make it harder for employers to exercise due process rights to contest citations or defend against whistleblower complaints, without any beneficial impact on workplace safety and health.”
Among other criticisms, Snare highlighted the bill’s provision that requires employers to abate hazards pending contests of citations. According to Snare, this section “creates a new burdensome requirement on employers to abate any hazard that is the subject of a serious, willful or repeat violation (exempting only other-than-serious violations). The clear result of this new requirement will be to reduce or eliminate the ability of an employer to challenge a citation through the Occupational Safety and Health Review Commission (OSHRC) administrative process by requiring this immediate abatement to all of these citations.”
Snare also found fault with Section 707 of the bill, which imposes “pre-final order interest” on fines, compounded daily, which would begin to accrue on the date an employer contests any OSHA citation. According to the testimony, “[t]his additional penalty on employers for OSHA citations which have not yet been adjudicated by the [OSHRC] appears to be unduly punitive, and will not result in any improvement of workplace safety and health.” Snare added that “the only result of this provision will be to increase the difficulties for employers who choose to exercise their due process rights and to contest any citations they believe were incorrectly or wrongly imposed to the particular situation.”
With respect to the enhanced civil and criminal penalties for OSH Act violations, Snare claimed that the CWS believes that imposing criminal liability on any officer or director “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.” Snare added that the terms themselves are defined vaguely.
As for the increased whistleblower protections, Snare noted that this section of the bill “completely eliminates any flexibility for an employer and employees to negotiate employment contracts or agreements which include an arbitration clause applicable to whistleblower rights.”
Finally, Snare pointed out that “[t]here is nothing in this proposed legislation that will provide any assistance to employers, and most importantly small businesses, to improve safety in their workplaces.” Snare posited that the agency would be “better served” if it instead used its existing or additional resources to provide training, education and compliance assistance materials “to ensure that employers clearly understand what they are required to do while also maintaining appropriate enforcement.”
Chairman George Miller (D-CA) called for quick action on the bill, which he intends to rename in honor of the late Senator Robert Byrd (D-WV).
A complete list of the hearing’s panelists and copies of their testimony can be found here.