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OSHA the new bully in town with ‘shame game’ tactics

Jun 30, 2014 | 07:00 PM | Lisa Gordon


The U.S. Labor Department’s Occupational Safety and Health Administration (OSHA) is unfairly tarnishing reputations with “shame game” tactics that are reminiscent of high school bullies.

Expedited press releases on company safety matters that are issued before all the facts are in are biased and prejudicial efforts that raise an eyebrow as to motive.

Shame is part of the agency’s strategy. It cannot deny that “shaming” is a specific goal since the term “regulation by shaming” was coined by David Michaels, assistant secretary of labor for OSHA. “In some cases, ‘regulation by shaming’ may be the most effective means for OSHA to encourage elimination of life-threatening hazards and we will not hesitate to publicize the names of violators, especially when their actions place the safety and health of workers in danger. To do this, we will issue more hard-hitting press releases that explain more clearly why we cited a specific employer,” Michaels wrote in 2010.

“OSHA has made apparent its preference for using a ‘stick’ rather than a ‘carrot’ to encourage compliance with the agency’s standards,” according to a legal briefing issued by Mark A. Lies II and Daniel R. Flynn, attorneys at Chicago-based Seyfarth Shaw LLP.

Congress established OSHA to promote safe working conditions by enforcing standards and by offering outreach and assistance to employers. Apparently, the agency has lost its way and believes that issuing emotionally charged press releases will embarrass an employer into compliance. But the bad publicity campaign drives a wedge between the agency and companies rather than developing an alliance to work for the good of employees.

Labor officials agree that publicly slapping a scarlet letter on a company won’t result in a safer workplace. Oklahoma Labor Commissioner Mark Costello testified at a federal hearing earlier this year that the “name and shame game” is unfair and won’t work.

And the Coalition for Workplace Safety, a Washington-based trade group that promotes a healthy work environment, suggested that shaming could have the opposite effect. The group said in a letter to Michaels said that shaming companies might result in fewer incident reports.

OSHA is quick to issue a press release listing a company’s alleged safety violations and proposed penalty. However, the agency doesn’t issue follow-ups and is less than transparent about the actual outcome. Any defendant is denied a fair trial if only the prosecution’s side is presented, and it is difficult to clear one’s name if charges are leveled but a verdict never announced.

Trying to find out details of actual settlements is a great way to kill time. OSHA’s press release website lists a plethora of allegations, but settlements are not disclosed. That’s because the fines are usually much lower and the initial releases are for shaming purposes, industry players contend.

OSHA did issue a statement about a $2.4-million settlement reached with Canton, Ohio-based Republic Steel. It is reasonable to wonder why the agency will take time to publicize a multimillion-dollar settlement yet fail to disclose smaller or reduced settlements.

The agency doesn’t issue follow-up press releases because only 3 percent of the 40,000 annual inspections are contested, an OSHA spokeswoman said. Although the proposed settlements aren’t easily accessible, she said the agency is willing to make the information available on request—so basically, OSHA will publicise the charges but one must seek out the agency’s verdicts.

It would be more honorable if OSHA waited until it reached a final determination before issuing a statement, since press releases about proposed fines are only half of the story. 

OSHA also should try to establish a uniform penalty system, since the agency’s proposed fines seem to lack a benchmark.

One Jacksonville, Fla.-based company is facing a $697,000 fine for a fatality, while the death of a worker at a western New York scrapyard resulted in a proposed $73,300 penalty and an auto salvage company in Georgia agreed to pay a $7,800 fine to settle citations resulting from a workplace fatality. Yet a Jarvis, Texas, metals recycler was recently hit with $64,400 in fines for a cluster of minor infractions, including improperly labeling propane tanks. Doing the math, labeling mistakes (at $64,400) are worth more than eight lives (at $7,800).

OSHA’s efforts could be better spent helping companies prevent injuries or industrial accidents instead of making itself an adversary to industry.




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