OSHA

  • July 19, 2012
    Guest Post

    By Thomas McGarity, the Joe R. and Teresa Lozano Long Endowed Chair in Administrative Law, University of Texas School of Law; McGarity is also a Member Scholar of the Center for Progressive Reform


    The Occupational Safety and Health Act of 1970 is one of the surviving monuments of the era of progressive social legislation (extending from the mid-1960s through the mid-1970s) during which Congress enacted the nation’s foundational health, safety and environmental laws. That statute empowered the Occupational Safety and Health Administration (OSHA) to write safety and health standards designed “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” A separate “general duty clause” required every employer to provide a workplace that was “free from recognized hazards” that were likely to cause “death or serious physical harm.”

    During the ensuing four decades, OSHA’s efforts to implement that statute have brought about substantial reductions in workplace injuries and illnesses, but far too many workers are still hurt or killed.

    According to the Bureau of Labor Statistics, U.S. private sector employers in 2010 reported nearly 2.9 million injuries and around 200,000 workplace illnesses. The actual numbers are likely much higher because some employers underreport workplace injuries, and doctors frequently fail to inquire into the likelihood that particular diseases, like cancer, have a workplace origin. A total of 4,690 workers died on the job, which represents a fatality rate of about 3.6 deaths per 100,000 full-time employees. These rates declined slightly during the recession of 2009, but were on their way back up in 2010

    The sad fact of occupational life in the United States is that OSHA has not lived up to its potential, primarily because for the 30 of the past 40 years, OSHA has been the subject of unrelenting attacks by the business community. These attacks have rendered OSHA largely incapable of promulgating new occupational safety and health standards and only barely able to enforce existing standards the general duty clause. In 2010, the Center for Progressive Reform published a report detailing serious regulatory dysfunction in OSHA due primarily to a lack of resources, a weakened regulatory process, intrusive review by the White House, and an outmoded statute.

    Today we publish The Next OSHA: Progressive Reforms to Empower Workers,offering a wide variety of suggestions for how Congress, OSHA, and workers themselves can make the nation’s workplaces safer and healthier. I co-authored the report with fellow CPRMember Scholars Martha McCluskey, Sidney Shapiro and Rena Steinzor, and CPR Senior Policy Analyst Matthew Shudtz.

  • September 5, 2011
    Guest Post

    by Marion G. Crain, the Wiley B. Rutledge Professor of Law and Director, Center for the Interdisciplinary Study of Work & Social Capital, at the Washington University School of Law


    Labor Day celebrates the historical contributions of the American labor movement to the lives of millions of working people. Today, however,unions are under siege. In the public sector, governors seeking to slash budgets are deauthorizing state labor laws that govern the organizing and bargaining rights of state employees. In the private sector, both the federal legislation that supports union action and the administrative body that enforces the law (the National Labor Relations Act and the National Labor Relations Board, respectively) are under attack. Union density is on a dramatic downswing. Are unions passé?

    Unions formed to challenge the dramatic wealth inequality between business owners and workers that characterized the nineteenth century social condition.  Most working families -- children, as well as adults -- labored under oppressive and dangerous conditions: seven days and sixty-plus hours per week, for pennies an hour, in workplaces with overtly dangerous conditions (the open flames in coal mines, for example, led to frequent explosions that maimed and killed many miners). Unions fought to change these conditions: to raise wages, to reduce hours, to enhance worker safety on the job. As they matured, unions partnered with the civil rights movement to battle entrenched racial segregation and discrimination in employment. Dr. Martin Luther King, Jr, a staunch union advocate, espoused a vision of racial equality that was premised on a call for economic justice. Indeed, King’s assassination occurred while he was in Memphis supporting a sanitation workers’ strike.

    Today, an array of statutes protects the vast majority of workers against such abuses.  Unions played a key role in obtaining such protections, and in defending them against political challengers. They raised workers’ expectations and encouraged them to demand to be treated with dignity, lobbied for legislation that would improve the standard of living for all workers, and litigate on behalf of workers for the most worker friendly interpretations of the law. The Fair Labor Standards Act (establishing a minimum wage and the right to overtime pay for hours worked in excess of 40 per week), the Occupational Safety and Health Act (establishing standards for safe workplaces), Title VII of the Civil Rights Act of 1964 (prohibiting discrimination on the basis of race, sex, national origin and religion), and the Family and Medical Leave Act (offering job protection for unpaid medical and family-care-related leave) are among the many legislative achievements that would not exist without the advocacy of labor unions. 

    As valuable as it may be, the individual rights model outlined above leaves economic issues like living wages, job security, health insurance and pension benefits to individual negotiation. But individual workers are relatively powerless to negotiate with corporate employers who hold the purse-strings to desperately needed jobs, and many workers willingly sacrifice anything to get and keep a job. Unions, however, are able to capitalize on the collective strength of the group to negotiate collective bargaining agreements that guarantee job security and establishbenefit packages that include health insurance, pension coverage, vacation pay, and paid family leave. Once obtained, these important benefits are often extended across entire industries or sectors by employers competing to attract the best workers. Further, most workers lack the knowledge of their legal rights and the resources to challenge violations of rights guaranteed in individual rights statutes. Unions thus play an important role as watchdogs for workers’ rights, and are the most effective vehicle for extending those rights beyond the minimum floor prescribed by employment legislation.

    Thus, labor unions are widely credited with creating and sustaining a strong middle class in America. Autoworkers, steelworkers, coalminers, nurses, teachers, and many others enjoy a middle-class standard of living because of their collectively-bargained wage and benefit packages. 

  • August 25, 2009
    In his ACS Issue Brief on the state of federal law regarding worker safety, Professor David M. Uhlmann maintains that Congress should bolster the penalties for violations. In Prosecuting Worker Endangerment: The Need for Stronger Criminal Penalties for Violations of the Occupational Safety and Health Act, Uhlmann, a University of Michigan Law School professor, writes:

    The criminal provisions of our worker safety laws are so weak that they do little to protect America's workers. Misdemeanor violations provide little deterrence and minimal incentive for prosecutors and law enforcement personnel, who reserve their limited resources for the crimes Congress has deemed most egregious by making them felonies (with significant maximum penalties). Focusing exclusively on violations involving worker deaths ignores the pain and anguish that results from serious injuries, which also may warrant criminal remedies. Limiting prosecution to willful violations may make ignorance of the law a defense, contrary to the time-honored maxim of American jurisprudence that ignorance of the law is not a defense. Finally, only ‘employers' can be prosecuted for criminal violations of the OSH Act [Occupational Safety and Health], which means that the mid-level managers who have the greatest day-to-day responsibility for unsafe working conditions often are immune from criminal prosecution under the Act.

    Uhlmann, in part, argues that the criminal provisions of OSHA must be bolstered "to reflect the Act's emphasis on public health and safety, to provide the credible criminal deterrent that is needed to ensure greater compliance with worker safety laws, and to provide consistency with other federal regulatory crimes."