Today’s New York Times features an extensive report on the actions (or lack thereof) at the Occupational Safety and Health Administration (OSHA) under the Bush Administration. The story reports the unsurprising fact that the current administration is less aggressive at promulgating new workplace safety regulations than the Clinton Administration.
Since George W. Bush became president, OSHA has issued the fewest significant standards in its history, public health experts say. It has imposed only one major safety rule. The only significant health standard it issued was ordered by a federal court.The story contains several anecdotal accounts of Bush Administration inaction and a brief description of the administration’s preferred approach of “voluntary compliance,” whereby OSHA facilitates industry self-policing efforts.The agency has killed dozens of existing and proposed regulations and delayed adopting others. For example, OSHA has repeatedly identified silica dust, which can cause lung cancer, and construction site noise as health hazards that warrant new safeguards for nearly three million workers, but it has yet to require them.
Administration officials say such programs are less costly, allowing companies to hire more workers and keep consumer prices down. The number of voluntary agreements has grown in recent years, but they cover a fraction of the seven million work sites that OSHA oversees, or less than 1 percent of the work force. Sixty-one food plants out of the tens of thousands across the country participate; industry representatives say other businesses are taking steps to protect workers on their own.The story quotes various critics of the administration’s policies, recounts various anecdotes about specific safety issues, and suggests that the change in policy is placing workers at risk. Data on the rate of workplace fatalities and injuries do not appear to bear out that claim, however. According to the administration, “workplace deaths and injuries have declined during their tenure.” Notes the Times, “OSHA officials say that since 2001, the fatality rate has declined by 7 percent and the injury rate by 19 percent.” Critics discount these numbers, but the story offers no contrary data. BLS data seem to support the agency’s claims. (See here and here.)
The promulgation of new regulations and level of enforcement activity are poor proxies for workplace protection. Whether or not Bush administration bureaucrats are busy regulating and monitoring industrial workplaces is less important than whether or not workers are exposed to unreasonable or uncompensated risks. If workplace injuries and fatalities are on the decline, as they appear to be (and as they were prior to the creation of OSHA), the relevant question is whether OSHA has the ability to accelerate this trend in a cost-effective manner. If not, there is no reason to be upset if this or any other administration has taken the OSHA cop off the beat.
Is there any reason to think that OSHA attempted to answer this question with empirical work about "whether or not workers are exposed to unreasonable or uncompensated risks" before the decision was made to scale back enforcement efforts?
As Adler points out, if you really want to get the right answer you have to sort out the background noise of technological and economic change to try to determine whether OSHA's efforts are useful on the margin. But assuming in the absence of such evidence that OSHA is useless is about as baseless as assuming that OSHA is necessarily beneficial.
If there is no such rigorous analysis, is it so wrong to look to anecdotal evidence?
On the other hand, a 7% drop is significant... looking on the bright side of having lost three million manufacturing jobs.
What you say is true in some cases, but in other cases companies cut corners, including ones involving safety, and hope nothing bad happens. Employment laws aren't always there to prevent the majority of employers from doing bad things, but that doesn't mean it's not important to enforce rules against the minority.
Those looking for anecdotal evidence of such employers should check out the series the NYT did on McWayne industries a couple of years ago.
I don't propose to start or participate in a debate over whether OSHA is, or could be, effective. My point is merely that "the administration isn't enforcing OSHA vigorously" is not a serious criticism unless accompanied by some evidence that vigorous enforcement would accomplish something good. Saying that OSHA is "intended" to do good doesn't cut it.
There's a substantive point here and an evidentiary one. The substantive point is that even if deaths and injuries are decreasing, the question is whether they would have decreased at any even greater rate had OSHA done more. (The next question is whether the additional decrease would be worth the cost. If I recall correctly, Justice Breyer wrote a book -- before his ascension -- that compared OSHA's effectiveness relative to other regulatory agencies, and found it wanting.)
The evidentiary issue is about what you do in the absence of rigorous empirical evidence pointing in either direction on the substantive issue. You have to do something. Inaction is a choice. So you do the best you can with the information you have.
Or, you can be an ideologue, and decide that you don't need to consider these questions because you already have the answers.
What do you mean by this? Are you disputing that hardhats, safety glasses, steel toed shoes, mandatory lockout procedures, eyewash stations, safety showers, mandatory safety cages, barriers and restraints, exposure limits, noise reduction and hearing protection, warning signs, backup alarms, MSDS and safety placarding have not reduced workplace injuries and deaths? What kind of bizarro world do you live in?
I distinctly remember a post, not sure where, but I thought it was on Volokh about someone who was fired because they created an unsafe environment by not following proper company procedures.
Anonymous Reader
Yup, and ability to sue one's employer for safety conditions, which is a tort, is part of the 'tort reform' the athe republicans are trying to limit.
So the Republican agenda is:
1. Gut OSHA and then,
2. Limit your ability to sue for injuries.
Who am I to argue? After all, this administration did a TERRIFIC job in gutting our ability to monitor the nation's food supply by gutting the FDA inspections. And look how well that worked for us.
Plus, OSHA doesn't provide for individual suits for damages for unsafe workplaces.
So what are we talking about?
Generally, under traditional labor law, the ability of a worker to sue his employer for unsafe work conditions was very limited (actually under the common law it was practically non-existent). Worker's comp actually created liability on the employer where practically none had traditionally existed (although employers welcomed it because courts were beginning to find ways around this patently unfair situation).
Not if the improvement in safety is being used to prove something it doesn't show at all, i.e., that all workplaces are getting safer, thus the Bush Administration's regulation philosophies are the correct ones. If less people are getting hurt on the job simply because less people are working in dangerous jobs that doesn't say anything about the policies, it just reflects the kinds of jobs people have. It's like claiming the reason less people drown swimming in Lake Michigan in January than in July is that your "winter" lifeguards are more effective.
The reduction in "new" regulations is probably a reason for the increased safety of workers, because OSHA personnel are focusing on enforcement (the important thing) of the existing regs, rather than increasing the size and verbiage of regs (an academically interesting process but no substitute for enforcement man-hours). I was involved in the successful, years-long effort to defeat OSHA's "ergonomics" rulemaking, which ran for most of the Clinton administration. That rulemaking boiled down to the view that the more you "use" a worker's muscles and joints, the more you injure him. It flew in the face of all the peer-reviewed, randomized controlled trial evidence, not to mention sports training and common sense: if you want to a muscle and joint to get stronger, you use it MORE. OSHA put massive man-hours into this project, including a series of hearings in which it refused to put pro-rule witnesses under oath and, famously, when one witness was cross-examined and caught in a falsehood by me, an OSHA attorney instructed her that she "wasn't under oath" and was not under an obligation to tell the truth! Finally, the rulemaking collapsed under the weight of its many flaws and industry's observation that OSHA's prosecutions of actual injury, and especially death matters, had declined during this period, as a relative matter. Incredible -- OSHA was putting efforts into attacking industries for "backache and malaise" complaints, at the expense of enforcement against practices that were killing people.
OSHA has, for the most part, a great history, and its enforcers should be proud of the good work they do. But enforcing its existing regs is its mission. New regs are a false measure of progress -- progress is measured by reduction in deaths and serious injuries, which has happened, so why in the world does NYT see a problem?
A final note: the Union-side critics quoted in the article have a serious bias. They want to, and often do, use OSHA inspections as a slowdown effort for leverage in labor negotiations. They want more leverage, so they want more regs. The NYT needs to acknowledge that they have a motive to lie, and very often are caught lying on these issues, and at the least have a big financial stake in more regs that is totally unrelated to safety. Industry isn't the only side capable of acting in its own, purely financial interest, at the expense of real worker health.
As an earlier poster mentioned, the trend in industry has been toward hiring full time staff safety managers and voluntary compliance with OSHA regulations. Safety is relatively cheap compared to the cost of high workers comp payouts.
Furthermore, to automatically attributed a decline in fatality and/or injury rates to a decline in manufacturing is simply incorrect. Manufacturing jobs are not even one of the top ten most dangerous jobs as far as fatalities.
Manufacturing is the still the most dangerous with regards to injuries, with 20% of the total, however, healthcare has 16% of the total injuries and is hardly a failing industry.
CNN Story, 2005 Data
Again, I'm curious as to how "tort lawyers" get involved, since most workplace injuries are covered by worker's comp, and thus tort suits are not allowed. And again, workers comp payouts are relatively low.
Look, the dirty little secret is that OSHA has long been regarded, both by Washington and by the OSHA employees themselves, as primarily a revenue agency. Actual improvments in safety are only incidental to how the agency views itself. Back in the day when I was doing that kind of labor (working in a print shop), the OSHA inspector fined us on every inspection because he didn't like the way we stored the printing supplies. We used to rearrange them after every inspection, but the on the next one he'd nail us for doing what he wanted done on the last inspection. He was quite proud of his ability to read between the lines of regulations to come up with fineable offenses. He bragged that he had never in an over ten year's career with the agency failed to fine every work site he had visited, and that the day he went to a work site and couldn't find something wrong with it would be the day he retired. He used to bemoan the fact that our building was a one-story building, because he said he could fine every stairway and railing installation in existence -- it was impossible for anyone to design a stair that met his interpretation of the standards and was stil usable. The fines were carefully calculated (a thousand here, a thousand there) to keep just under the amount where an employer might consider it worth their while to sue the agency or complain to a Congressman. Just pay the man to make him go away for a while. It was legalized piracy, a shell game, and everyone involved tacitly acknowledged it.
I'm not sure if the maker of the alleged defective item can cross claim vs the employer in this situation for inadequate training or whatever. anyone know?
I'm aware that suits against third parties (i.e., folks who are not the employer) are not pre-empted by workers' comp. But in the big picture of worker safety issues, and in somewhat smaller picture of worker lawsuits based on workplace injuries, those are the distinct minority.
And of course in suits against contractors who are not the direct employer, the employee would have to show that his/her injury was a result of that contractor's negligence. Which doesn't seem particularly unfair, but more importantly, that would only be a plausible theory in a small fraction of workplace injuries.