Three days after Sen. Jon Corzine, D-NJ, announced he would soon introduce legislation making it a felony willfully to violate OSHA rules that lead to death on the job, Rep. Rosa DeLauro, D-Conn., appealed to OSHA Administrator John Henshaw for support of tougher criminal sanctions. Under current law, employers can only be charged with a misdemeanor for OSHA violations, and prison sentences are extremely rare in such cases.
Near the end of the hearing there were signs DeLauro may have made some progress in convincing the current administration and her Republican colleagues to consider increasing OSHA's enforcement power.
Members of the Subcommittee on Labor, Health, and Human Services and Education also raised questions about:
•When OSHA would complete a rule clarifying that employers must pay for workers' personal protective equipment (PPE);
•Why OSHA is trying for the third year in a row to cut the Susan B. Harwood training grant program, despite Congress's past decisions to fund it fully;
•Fairness to small nursing homes in the agency's ergonomics enforcement program.
Henshaw said no decision has yet been made on the PPE rule, though the agency's regulatory agenda will be released later this month. He promised to provide lawmakers with details about OSHA's proposal to cut the Harwood program by $7 million, and assured them that the agency is fair to small employers.
DeLauro was incensed by a series of articles, published in January by the New York Times, that describe how since 1995 nine workers have died in a single company--McWane Inc., a Birmingham, Ala. conglomerate. She arrived at the hearing armed with disturbing facts concerning OSHA enforcement.
"From 1972 to 2001, there have been at least 200,000 on-the-job deaths, 151 referrals for criminal investigation, and 8 cases resulting in jail time," DeLauro declared while questioning Henshaw.
The articles also quoted two former OSHA administrators--Charles Jeffress of the Clinton administration and Pat Tyson from the Reagan years--who argued that the current law is too weak to deal with the most egregious OSHA violators.
"I believe we're being derelict in our duty," DeLauro told Henshaw and committee members. "This article says OSHA is a 'toothless watchdog' and I don't want you to be toothless: I'm asking if you would work with us on trying to put legislation together."
"I would be glad to work with you on any issues that advance worker health and safety," replied the OSHA administrator, but he declined to state whether he believes OSHA needs more criminal enforcement authority.
Henshaw pointed out that the agency currently has the power to refer cases to the Department of Justice for criminal prosecution, and used this power in the McWane case. He also noted that McWane was fined over $1 million.
Republicans on the committee appeared to be sympathetic to DeLauro's line of questioning, though non-committal on legislative action.
"I think overall my colleague has a point that holding people criminally responsible in some cases is a more effective way of getting compliance," said Rep. Anne Northrup, R-Ky. "But I don't want to over-reach." She also noted that many workplace fatalities are blameless accidents.
Rep. Ralph Regula, R-Ohio, who chairs the subcommittee, attempted to sum up the discussion by saying he agreed with both his colleagues, "Penalties have a little less deterrent effect than criminal prosecution."
In an interview after the hearing, DeLauro said she had been unaware of Corzine's legislative initiative, but when informed of the proposal promised to "take a look at it and see what we can do."
The congresswoman said that she did not come prepared with a legislative proposal.
"We're seeing people burned and maimed without anything happening," she said. "But this for me is the beginning. We need to think about the kind of enforcement mechanism [OSHA] needs to protect the public."