New Clear Vision

Protecting Workers from the Dangers of a Broken System

by Diane Lefer

“Regulation kills jobs.” We keep hearing that mantra from the U.S. Chamber of Commerce. What became clear at the forum called on Tuesday evening by the Southern California Coalition for Occupational Safety and Health is that we need to say loud and clear that “Lack of regulation kills people.”

According to “ Dying at Work in California,” recently released by SoCalCOSH and Oakland-based Worksafe, 40 years after President Nixon signed the Occupational Safety and Health Act (OSHA), an estimated 6,500 workers in California die from chronic exposure to chemical, biological, or physical agents each year and in 2009 (the latest year for which data is available) there were over 300 confirmed worker deaths and 491,000 reported work-related injuries. (The report can be downloaded here.)

The evening of June 21, SoCalCOSH coordinator Shirley Alvarado-del Aguila briefed workers and activists on the status of Cal/OSHA, the state enforcement agency which as been long plagued by poor training, slow (or nonexistent) responses to complaints of hazards, and understaffing. (According to “Dying at Work,” California has one of the lowest staffing levels per capita in the U.S. There are more Fish and Game Wardens than there are Cal/OSHA inspectors.) “The system is broken,” said Alvarado, but “there’s new leadership. Ellen Widess won’t attack Cal/OSHA. She’ll hold people accountable.”

Prospects aren’t so rosy on the federal level, said Tom O’Connor, executive director of the National Council for Occupational Safety and Health. Agencies including OSHA are indeed under attack. Even after Obama’s election when Democrats controlled both House and Senate and “the time seemed right to strengthen OSHA,” the proposed legislation “couldn’t even get a vote on the Senate floor.” And that was in the immediate aftermath of explosions at the Tesoro refinery in Washington State (which killed five workers and could have been prevented) and the Kleen Energy Systems power plant in Connecticut (where five died); the 29 miners killed in the worst US mine disaster in decades at Massey Energy’s Upper Big Branch mine which had been cited by federal regulators for “substantial violations” of safety protocols no fewer than eight times during the previous 12 months (and, a week after this meeting, where it turned out Massey had provided false records to regulators to hide additional significant dangers); and the Deepwater Horizon disaster in the Gulf of Mexico. Now, with the House taken over by Republicans, “there’s no chance for improved legislation.”

Of course Obama’s executive branch could write and implement new regulations. Safeguards now are often weak, enforcement is lax, and penalties for noncompliance are minimal. Many worksites and occupations fall outside the scope of the original law while since 1970, the American workplace has evolved. (In Nixon’s day, who’d ever heard of carpal tunnel or computer vision syndrome? Or solar panel installation? Or balers for recycling?)

But instead of moving forward, said O’Connor, “We have to fight back against bad ideas.”

Ideas like the REINS Act–the “Regulations from the Executive in Need of Scrutiny Act” which was introduced in the House. If passed by House and Senate, it would prevent the implementation of any new “economically significant” regulatory proposal until approved by both House and Senate. The regulations could therefore be stopped by doing nothing, by not bringing them to a vote.

Obama’s OSHA has already backed off and withdrawn two proposals on health and safety standards — one of which merely restored the original standard that Reagan had weakened. In addition, O’Connor said, the OIRA — the Office of Information and Regulatory Affairs which was created by Reagan to stop regulation — reviews every proposed new rule and even if it doesn’t stop it, can delay it indefinitely. OIRA delays are already having impact on OSHA.

O’Connor urged more work on the local level, citing a statewide campaign in Massachusetts to protect workers hired through temp agencies and a success in Austin, Texas where — after seven construction workers died of heat-related illness — the City Council mandated 10-minute rest breaks every four hours on construction sites.

Here in California, many people are aware of the danger high temperatures pose to farmworkers. The heat-related death in 2008 of Maria Isabel Vasquez Jimenez after nine hours of work in the blazing sun spurred demands for water, shade, and rest. Chloe Osmer, California Labor Federation campaign coordinator working on behalf of carwash employees know it’s an issue for these workers as well who may work 8-10 hours in the hot sun. (Standing in the sun in-between customers does not constitute rest!) The CLEAN Carwash Campaign has taken water bottles and information about heat stress to 100 carwashes around Los Angeles and has helped workers file OSHA complaints about other problems as well, including the lack of protective gear when they use sulfuric acid to clean rims.

At first, she said, Cal/OSHA didn’t respond to complaints or return phone calls. With advice and support from SoCalCOSH, she led a group of workers right into the Cal/OSH district office and finally got some attention.

“OSHA is a tool for workers to make their workplaces better and also use it as an organizing tool,” she said “If one man says ‘my hands are burning and cracking,’ you find how to get him to take action with his coworkers. Health and safety is not a side issue, it’s part of an organizing campaign, getting workers to take collective action, to become experts and do trainings for other workers.”

Attendees shared problems and recommendations. Lisa Fu of the California Healthy Nail Salon Collaborative pointed out that workers are exposed to dangerous chemicals but because they are considered independent contractors, the salons are not inspected. Domestic workers and day laborers aren’t covered either. And day laborers aren’t just picked up at Home Depot to work for a few hours at a private household. They may be contracted to a single construction site for weeks or even months. Angela Alvarez, a lead organizer with the Workers Health Program of IDEPSCA (Instituto de Educación Popular del Sur de California) and new member of the SoCalCOSH advisory board, just heard from a worker whose thumb was almost sliced off on the job. He was immediately let go. After treatment at the emergency room, he was told he would need surgery to regain use of his hand. He’s left without work and without money to pay for the surgery. The boss told him if there was an accident, it was his own fault.

(The blame game gets played a lot. The Injury Illness Protection Program requires safety training for workers in a language they understand. But many employers reportedly just hand out a sign-in sheet and then use the signatures to tell injured workers this means you knew not to act unsafely and are responsible for the accident.)

A day laborer named Fernando said when he worked on a construction project for the US Navy in San Diego, they made sure he wore a safety harness and goggles. Here in LA, he said, no one cares about him. He works on sites where there’s no protective gear.

The difficulty of regulating anything in an environment of multiple contractors, and subcontractors came up again and again on construction sites and elsewhere. In a single warehouse, for example, the logistics workers may come from as many as six different staffing agencies. If there’s an safety violation or an injury, it is often difficult to unravel who exactly is the employer of record.

Participants came up with recommendations for Alvarado del-Aguila to take to Ellen Widess, most often citing:

• Coordinated enforcement with other agencies. Employers who violate OSHA regulations are often in violation of Wage and Hour rules and Workmens Comp rules as well. A more comprehensive look should also be taken at specific industries where abuses are widespread.
• Better training for OSHA staff.
• Targeted hiring of culturally competent inspectors. The hiring freeze should be lifted so that complaints can be investigated in a timely manner. Cases now take so long, workers don’t see the point in filing. More bilingual inspectors are needed as immigrants predominate in the most hazardous jobs. Written materials about OSHA and workers rights as well as safety training must be available in the language the workers understand. (Participants reported cases in which managers served as interpreters during safety inspections by OSHA–hardly the best way to get workers to speak openly about working conditions.) And Mark McGrath from the Adult Film Industry Subcommittee, UCLA School of Public Health, added that cultural competency includes respect for all marginalized groups, including workers in the adult film industry, “a very at-risk and transient population” who need better health protection, such as mandatory condom use. “If they use their bodies in labor, Cal/OSHA should protect them without moral judgments.”
• Off-site interviews. Workers should have a way of arranging meetings with inspectors away from the jobsite where they may not feel it’s safe to air their complaints.
• Protection against retaliation. Workers who file OSHA complaints now risk being fired, reported to immigration authorities, or having their hours cut or schedule changed to a less desirable shift or location. According to “Dying at Work,” workers who’ve file complaints about retaliation have waited as long as seven years for a decision.
• Expanding who is covered.
• Stiffer fines and sanctions. When nothing is done to correct problems or punish violators, workers stop reporting. “Fines are ridiculously low,” said Jessica Martinez of the national Council, and so corporations pay them as an ordinary cost of doing business. Under Cal/OSHA, the minimum fine for violations is $5,000–very little for a big corporation and certainly inadequate when a known hazard leads to a fatality. “It’s nothing to a corporation.” In practice, on appeal, even the $5,000 is often reduced.

Given our economic woes and high unemployment, the importance of advocacy groups and community organizations becomes very clear. Without support and backup, workers are less likely to demand their rights and risk retaliation at the very time when employers are tempted to cut corners.

Sometimes we prevail: Before the meeting ended, Chloe Osmer reported that carwash workers who’d been cheated of money had won an $80,000 wage and hour settlement.

The next morning, at the rail car loading facility at the BP Refinery in Carson, an employee was fatally injured on the job. His name was not released.

Diane Lefer is an author, playwright, and activist whose recent book, California Transit, was awarded the Mary McCarthy Prize in Short Fiction. Her stories, novels, and nonfiction often address social issues and draw on such experiences as going to jail for civil disobedience and her volunteer work as a legal assistant/interpreter for immigrants in detention. Her new book, The Blessing Next to the Wound, co-authored with Hector Aristizábal, is a true story of surviving torture and civil war and seeking change through activism and art. Lefer writes for LA Progressive, where this article originally appeared. More about her work can be found at: http://dianelefer.weebly.com/.