New Clear Vision

Working Smarter to Save Workers’ Lives

by Diane Lefer

According to US Secretary of Labor Hilda Solis, more people die in the American workplace in a single year than have been lost in nine years of war in Iraq. “Each day in America, twelve people go to work and never go home,” she told the audience at the Action Summit for Worker Safety and Health held at East Los Angeles Community College on April 26, one of many events leading up to Workers Memorial Day, April 28, an annual date of remembrance for those killed, injured, or sickened on the job.

María Elena Durazo, Executive-Secretary-Treasurer of the Los Angeles County Federation of Labor, AFL-CIO, reported there were 500 work-related deaths in 2011 in California and “Workers are still being fired for speaking out in order to avoid death.”

This loss of life and countless serious injuries, continue to occur although the Occupational Safety and Health Act (OSHA), intended to protect workers, was signed by Richard Nixon 41 years ago.

Well, what’s a law if it’s not enforced? DeAnn McEwen, President of the California Nurses Association, quoted pioneering public health nurse and activist Lavinia Dock:  “The law sits harmlessly on the shelf, as innocent as a verse from Mother Goose.”

For decades, the OSHA law and regulations have indeed appeared harmless. Workers had little reason to believe OSHA or the state agency, Cal OSHA (which receives much of its funding from federal OSHA), had their backs. But Secretary Solis took office in 2009 announcing “There’s a new sheriff in town,” one who would enforce the law. So, does that make Summit panelists — California Labor Commissioner Julie Su, who enforces wage and hour laws; and California OSHA Chief Ellen Widess in charge of occupational health and safety regulations in the state — her posse?

Less than a year ago, Shirley Alvarado del Aguila, coordinator of the Southern California Coalition for Occupational Safety and Health (SoCalCOSH) declared “The system is broken,” but she expressed confidence in Widess who had just been confirmed in her post.

So how (and what) are these three powerful women doing? While the Department of Labor has only 1,000 safety inspectors to cover 8 million workplaces in the US. The California Occupational Health and Safety Program is expected to cover 1.3 million sites with a couple of hundred personnel while the Labor Commission has about one field investigator per county. The lack of adequate resources and staff, said Commissioner Su, cannot be “an excuse not to do our jobs. We have to work smarter,” and one way they are doing that is by amplifying their effectiveness through partnerships.

With Employers

Solis and Widess made it clear that while they will go after bad employers, in Widess’ words, Cal OSHA is dedicated “to helping good employers flourish.” Their agencies provide free consultation, assessments, and training upon request, especially to businesses too small to have health and safety expertise, let alone full-time safety coordinators. In spite of funding cutbacks throughout government, Solis said President Obama has increased funding for this support to small business.

“Punishing the bad guys is the last resort,” she said. She’d much rather “help employers do right by their workers before tragedies happen.”

With Each Other’s Agencies

Last year SoCalCOSH suggested that CalOSHA coordinate enforcement with other agencies because employers who violate OSHA regulations are often in violation of Wage and Hour rules and Workmen’s Comp rules as well. That’s exactly what Widess and Su are doing together now as both focus on particularly hazardous industries and the underground economy that employs mostly immigrant and low-wage workers.

Both agencies went after the logistics industry in the Inland Empire. A common practice was for warehouse operators to shield themselves from responsibility for workers by hiring through temporary staffing agencies. Su’s agency was able to pierce the corporate veil and issue million dollar citations against two agencies and then see the workers file a class action lawsuit, with the ultimate result that the workers are now hired directly by the warehouse. The Warehouse Workers Union identified and mapped hazards in the workplace and Cal OSHA investigated and was able to show the warehouse and agency were both exercising supervision and control over employees and therefore both could be charged with violations.

The US Department of Labor and the California Labor Commission have initiated a first of its kind federal/state joint enforcement agreement targeting agriculture, port drivers, warehouses, and the garment industry.

Su has her own agency working smarter. While the Bureau of Field Enforcement has the statutory right to enter a place of employment, this power was wasted in the past. Inspections weren’t meaningful as investigators interviewed employees in the presence of the boss. Now, her staff does off-site interviews and surveillance, for example, observing workers reporting to work at 7:00 AM though in front of the boss they back up the employer’s claim that they started work at 9:00.

We can’t be everywhere,” said Widess, “so it is so important that there be a culture of safety.”  Only so many deaths and accidents can be investigated, but untold numbers can be prevented.

Last year, Cal OSHA launched a program to educate workers and employers about the symptoms of heat illness, including the danger of death; to train in emergency procedures; and to let employers know that the workers’ right to water, rest breaks, and shade will be enforced.

The summer heat campaign was so successful in reaching farm workers, utility workers, road workers, landscapers that Secretary Solis adopted it and took it nationally into fields, airport tarmacs, construction sites and other outdoor workplaces.

Interagency cooperation comes naturally to the women who have crossed paths fighting for California’s most vulnerable for decades. Su was lead attorney in 1995 on behalf of Thai immigrant workers who’d been held in virtual slavery in an El Monte sweatshop while Solis held hearings about the case in the California State Senate and worked to hold manufacturers responsible for the wage and hour violations. Widess long record of social justice commitment includes her work during the first Jerry Brown administration to protect farm workers from pesticides.

With Both Criminal and Civil Courts

SoCalCOSH had criticized the slap-on-the-wrist fines assessed for safety violations, sometimes less than $5,000, even in cases where known hazards led to a worker’s death.

Widess has referred thirteen of the most egregious cases she’s seen to District Attorneys around the state. They accepted eight cases. Charges were eventually filed in seven of them and one owner has already received jail time.

Under Su, the Labor Commission created a criminal investigation unit–believed to be the first in country, staffed with sworn peace officers who’d been through Police Academy training. A 2010 UCLA study reported that $26 million were stolen each week from low-wage workers in CA who were not paid what they had earned. Su intends to make it clear that “it is a crime in the State of California to steal wages from workers.”

Su goes after civil penalties as well. Though the law provides for penalties when wages  aren’t paid in a timely manner, the Labor Commission didn’t try to assess these penalties in the past. Now, “if you come before the Labor Commission and you’ve broken the law, it’s gonna cost you something. It’s going to cost you more than if you’d done the right thing in the first place.”

Ruben Rosalez, Acting Administrator, Wage and Hour Division, Western Region, (who said it was an honor to be in the company of such powerful mujeres), is also ready to go to court, to seek restraining orders against shipping goods until the workers are paid; or to see employers held in contempt of court if consent decrees are violated.

The agencies will seek punitive damages in cases of retaliation against whistleblowers. Solis told of the airline that fired a pilot who reported mechanical problems that affected public safety. The Department saw to it that the airline reinstated the employee and paid $1 million in back wages, interest, and damages.

With Community Groups

Last year, SoCalCOSH called for the hiring of more bilingual and culturally competent inspectors. Unlikely given budget constraints, so Widess addresses the problem with more community involvement and training of community members, more billboards, more bilingual outreach in more languages, now including Punjabi and Mixteco. The agency is enlisting the ethnic media to spread the word.

Another powerful mujer, Deborah Berkowitz, Federal OSHA Chief of Staff, said training materials are now available using international communication standards. For workers who have limited English or low-literacy skills, this doesn’t just strengthen the workers right to know. “Now they have the right to understand.”

With Workers’ Organizations

Solis chose the Summit to kick off the Labor Department’s new campaign aimed at preventing accidental deaths and injuries in the construction industry, providing educational materials about working safely from ladders, scaffolding, and roofs. Over 750 construction workers die on the job every year, about 1/3 from falls, and many more are seriously injured, Solis said, “in workplace accidents that disable our workers, devastate our families and hurt our economy.”

David Frelow, Labor Relations Representative for the construction workers represented by the Laborer’s International Union of North America (LIUNA), explained that his organization had approached the Labor Department urging the initiative and will play a  role in disseminating information and training. He estimated that a complete set of safety equipment, including harnesses, tie-offs and more, costs under $100, but won’t save lives if workers aren’t trained in how to use the equipment.

The word “Action” in the day’s event meant that labor groups in attendance were urged to join in this and other initiatives,

Widess offered examples of workers who have gone beyond addressing individual specific grievances and how their strategic thinking about legislation and standards can “make more lasting change.”

Hotel housekeepers suffer a high rate of back and shoulder injuries from repeatedly lifting mattresses that can weigh as much as 100 pounds and knee injuries from cleaning floors on their knees. The housekeepers’ union, UNITE HERE, has proposed statewide safety standards that would require hotels to change practice and provide mops and fitted sheets for workers to use.

“The Safe Patient Handling Act passed,” in the California legislature, said Widess, “but still has to be implemented. The rulemaking process is going on now,” and nurses are using their real-life expertise and taking the lead in proposing those rules.

McEwen of the California Nurses Association noted “we’re not all body-builders,” but the body-builder governor had previously refused to sign the law. Jerry Brown, a strong supporter of labor rights protection, did. Now she thinks progress in California can spread. Senator Al Franken has introduced Safe Lifting legislation aimed at protecting all workers in the US. California also has Safe Staffing legislation that, for example, mandates that an intensive care nurse can have no more than two patients at a time. “In Texas I talked to an ICU nurse who had seven,” putting all seven at increased risk of death. “There’s a link between worker safety and patient safety,” she said. Now Barbara Boxer in the Senate and Jan Schakowsky of Illinois in the House have introduced legislation that would protect patients (and nurses) throughout the country.

With Immigration Authorities

This is, in Su’s words, “a hard nut to crack.” Undocumented workers are often afraid to report injuries or come forward with complaints because they fear deportation. Widess has communicated with ICE to get assurances that no action will be taken against workers who have brought their situations to Cal OSHA. “But that’s not the kind of full protection any of us would like. The threat itself is chilling.”

“We enforce the law regardless of citizenship status,” said Ruben Rosalez. His office will try to certify undocumented workers as a first step to a U-visa which can give lawful status to a noncitizen crime victim who is willing to assist in the investigation.The U-visa, he acknowledged, can be very hard to get.

“Immigration status is irrelevant,” Su agreed, “but remedies are inadequate.” For example, when workers are fired in retaliation for filing complaints, they have the right to get their jobs back, but “reinstatement doesn’t apply if you’re undocumented and don’t have the right to work in the US to begin with.” Still, they can be protected against other forms of retaliation such as having their hours cut or schedule changed to a less desirable shift or location. In spite of the risks involved, she has seen some of the most vulnerable workers come forward. And the agencies can’t do much to help workers unless workers feel free to report abuse. Su went on to wonder if employers might be charged with a crime if they held immigration consequences over a worker’s head. Impeding an investigation? Tampering with a witness? Obstructing justice?

Last year, SoCalCOSH reported workers (citizens, documented, undocumented) being fired for filing OSHA complaints and then, after filing complaints about retaliation, have waited as long as seven years for a decision. In spite of short-staffing, Su said her agency now investigates immediately if retaliation follows a complaint to either the Labor Commission or to OSHA.

Solis, Widess, and Su have shown it’s possible to do a lot with a little, but their work remains under threat in a climate of austerity and the war on regulation.

“Before OSHA,” said Solis, “there was no federal law requiring safety shields to prevent amputations, no law requiring a safety harness. If you didn’t like it, they told you to quit.”

Berkowitz said OSHA recently came under attack for starting to enforce a regulation that had been on the books (like a Mother Goose rhyme?) since 1994.

The rightwing echo chamber insists that OSHA kills jobs while Solis reminds us that “OSHA prevents jobs from killing workers.”

Without regulation, what price do we pay? Let’s echo this: Employment-related death, disability, and illness exact a high toll not only on workers and their families, but on business and the economy as a whole.

Diane Lefer is an author, playwright, and activist. Her latest books include The Blessing Next to the Wound, nonfiction co-authored with Colombian exile Hector Aristizabal, and the crime novel, Nobody Wakes Up Pretty, which Edgar Award winner Domenic Stansberry describes as ”sifting the ashes of America’s endless class warfare,” due out May 2012 from Rainstorm Press. Lefer also writes for LA Progressive, where this article originally appeared.