National Clothesline

While nothing is happening in Congress to further the President’s labor agenda, an agency created under the Nixon Administration is doing a pretty good job of harassing employers under current law.

That agency is the Occupational Safety and Health Administration (OSHA), and it appears that OSHA is ready to gear up and penalize employers in record numbers in the coming years.

OSHA is already on a pace to conduct a record number of inspections this year. While states with their own OSHA-sanctioned plans do not necessarily have the money to increase inspections, these states are also feeling the pressure to do so.

If OSHA finds that a state is not effectively enforcing safety laws, it can take action to take back the job from the state agency.

One of my state-plan contacts says that the AFL-CIO and other Big Labor organizations have taken over the Department of Labor, which is responsible for OSHA, and he believes Big Labor is against state OSHA plans.

While state-plan compliance officers are not necessarily more reasonable than federal inspectors, state politicians are more difficult to control than federal officials who need union support to win elections. If OSHA gets pressure from organized labor to rein in state plans, state plans might react (or overreact) with more aggressive tactics.

In addition, OSHA is starting to modify its policies without modifying its regulations. In other words, OSHA recognizes that if it tried to change its regulations, it would face stiff opposition from employers trying to survive the recession.

Instead, OSHA is issuing “interpretations,” “directives,” and other policy changes to accomplish its purposes in a less visible profile. One of those purposes is an increase in employer punishment.

OSHA has announced a new policy of computing fines that could result in increases of 50 percent. Just by giving less credit to employers for factors such as OSHA history and good faith, fines can be increased without any change in regulations. Ironically, money spent on increased fines is money that is not available for safety training and equipment. It is also money not spent on new jobs.

So OSHA intends to make it more difficult for people to get jobs and to get safety equipment because it wants to increase fines for all safety violations, including fines for not having tepid water on construction sites, for example.

OSHA has announced that it will scrutinize training more to take into account the native language of the employee, his ability to read, and I guess to some extent, his intelligence.

The head of OSHA has said, basically, that the employer is entirely responsible for the training of its employees, including insuring that the employees comprehend the training.

Handing employees safety information to read is not sufficient, unless the employer confirms that the employee can read and did read the materials.

If the employee has a problem with English comprehension, the training must take place in the employee’s native language.

We can expect some employers to shy away from hiring employees with language difficulties because of the extra cost of “native-language” training. By doing so, however, an employer runs the risk of charges based on national origin discrimination.

Again, more money will go for safety training for a small group of employees (or perhaps just one), while less money is available for the safety training of the remainder of the group.

Finally, OSHA seems less inclined to settle cases these days. If it does settle, OSHA wants it on its own terms, not taking into account input from employers. Guilty until proven innocent is the usual method OSHA employs.

Employers need to prepare for an increase in OSHA inspections and fines. Employers also need to prepare for an increase in the anti-employer attitude of the agency. State agencies will either adopt these strategies or face possible dissolution of their state programs.

Supervisors and employees must be trained in safety matters, but they must also be trained what to say and do during an OSHA inspection. If fines are going to increase, and if settlement is going to be more difficult, the cost of not being prepared for an OSHA inspection will undoubtedly go up.

Unprepared supervisors and employees will create more violations, more fines, and more heartache for employers.

The Department of Labor has declared war on employers. Perhaps it is time for employers to take on a more warlike response to OSHA inspections.