[House Hearing, 111 Congress]
[From the U.S. Government Publishing Office]


 
             IMPROVING OSHA'S ENHANCED ENFORCEMENT PROGRAM

=======================================================================

                                HEARING

                               before the

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                     ONE HUNDRED ELEVENTH CONGRESS

                             FIRST SESSION

                               __________

             HEARING HELD IN WASHINGTON, DC, APRIL 30, 2009

                               __________

                           Serial No. 111-18

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html


                  U.S. GOVERNMENT PRINTING OFFICE
48-052                    WASHINGTON : 2009
-----------------------------------------------------------------------
For Sale by the Superintendent of Documents, U.S. Government Printing Office
Internet: bookstore.gpo.gov  Phone: toll free (866) 512-1800; (202) 512ï¿½091800  
Fax: (202) 512ï¿½092104 Mail: Stop IDCC, Washington, DC 20402ï¿½090001

                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Joe Wilson, South Carolina
Rush D. Holt, New Jersey             John Kline, Minnesota
Susan A. Davis, California           Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Tom Price, Georgia
Timothy H. Bishop, New York          Rob Bishop, Utah
Joe Sestak, Pennsylvania             Brett Guthrie, Kentucky
David Loebsack, Iowa                 Bill Cassidy, Louisiana
Mazie Hirono, Hawaii                 Tom McClintock, California
Jason Altmire, Pennsylvania          Duncan Hunter, California
Phil Hare, Illinois                  David P. Roe, Tennessee
Yvette D. Clarke, New York           Glenn Thompson, Pennsylvania
Joe Courtney, Connecticut
Carol Shea-Porter, New Hampshire
Marcia L. Fudge, Ohio
Jared Polis, Colorado
Paul Tonko, New York
Pedro R. Pierluisi, Puerto Rico
Gregorio Kilili Camacho Sablan,
  Northern Mariana Islands
Dina Titus, Nevada
[Vacant]

                     Mark Zuckerman, Staff Director
                Sally Stroup, Republican Staff Director
                                 ------                                

                 SUBCOMMITTEE ON WORKFORCE PROTECTIONS

                LYNN C. WOOLSEY, California, Chairwoman

Carol Shea-Porter, New Hampshire     Tom Price, Georgia,
Donald M. Payne, New Jersey            Ranking Minority Member
Raul M. Grijalva, Arizona            Peter Hoekstra, Michigan
Timothy H. Bishop, New York          Joe Wilson, South Carolina
Phil Hare, Illinois                  John Kline, Minnesota
Gregorio Kilili Camacho Sablan,
  Northern Mariana Islands


                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on April 30, 2009...................................     1

Statement of Members:
    Price, Hon. Tom, Ranking Republican Member, Subcommittee on 
      Workforce Protections......................................     4
        Prepared statement of....................................     5
        Prepared statement of the Cintas Corp....................    45
    Woolsey, Hon. Lynn C., Chairwoman, Subcommittee on Workforce 
      Protections................................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Barab, Jordan, Acting Assistant Secretary for Occupational 
      Safety and Health, U.S. Department of Labor................    38
        Prepared statement of....................................    40
    Frumin, Eric, health and safety coordinator, Change to Win...    20
        Prepared statement of....................................    22
    Lewis, Elliot P., Assistant Inspector General for Audit, 
      Office of Inspector General, U.S. Department of Labor......     6
        Prepared statement of....................................     8
    Rojas, Jesus, stepson, Raul Figueroa, Waste Management, Inc., 
      mechanic...................................................    12
        Prepared statement of....................................    14
    Schwartz, Jason C., on behalf of the U.S. Chamber of Commerce    15
        Prepared statement of....................................    17


             IMPROVING OSHA'S ENHANCED ENFORCEMENT PROGRAM

                              ----------                              


                        Thursday, April 30, 2009

                     U.S. House of Representatives

                 Subcommittee on Workforce Protections

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to call, at 10:02 a.m., in 
room 2175, Rayburn House Office Building, Hon. Lynn Woolsey 
[Chairwoman of the Subcommittee] presiding.
    Present: Representatives Woolsey, Shea-Porter, Payne, 
Bishop, Hare, Price, and Wilson.
    Also present: Representative McKeon.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jody Calemine, General Counsel; Lynn 
Dondis, Labor Counsel, Subcommittee on Workforce Protections; 
David Hartzler, Systems Administrator; Jessica Kahanek, Press 
Assistant; Alex Nock, Deputy Staff Director; Joe Novotny, Chief 
Clerk; Meredith Regine, Junior Legislative Associate, Labor; 
James Schroll, Junior Legislative Associate, Labor; Mark 
Zuckerman, Staff Director; Robert Borden, Minority General 
Counsel; Cameron Coursen, Minority Assistant Communications 
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob 
Gregg, Minority Senior Legislative Assistant; Richard Hoar, 
Minority Professional Staff Member; Jim Paretti, Minority 
Workforce Policy Counsel; Molly McLaughlin Salmi, Minority 
Deputy Director of Workforce Policy; Linda Stevens, Minority 
Chief Clerk/Assistant to the General Counsel; and Loren Sweatt, 
Minority Professional Staff Member.
    Chairwoman Woolsey [presiding]. A quorum is present. The 
hearing of the Subcommittee on Workforce Protection will come 
to order.
    I am going to present my opening statements and then yield 
to the ranking member, Mr. Price.
    Thank you all for being here.
    One year ago, almost to this very day, our subcommittee 
held a hearing on strengthening OSHA enforcement of multi-state 
employers. Our issue today, our subject today, relates to that 
directly. Because today, as part of the Workers Memorial Day 
commemoration, the Subcommittee is exchanging and examining 
OSHA's enhanced enforcement program, or EEP.
    This is a program that OSHA unveiled in 2003 to deal with 
large employers that are indifferent to the health and safety 
of their employees and employers who have multi-properties and 
multi-states and are not in just one area, in other words.
    The EEP was initiated in response to a widespread 
investigation by the New York Times and Frontline that exposed 
the horrendous working conditions at McWane. McWane is the 
biggest cast iron water and sewer pipe manufacturer in the 
world. From 1995-2003, at least 9 workers were killed, and 
4,600 workers were injured at McWane facilities across the 
country.
    McWane had received over 400 citations, but it had only 
received one criminal conviction, and that was in 2002. At that 
time, McWane paid a fine. Several years later, McWane was found 
guilty of several work and safety and environmental criminal 
violations. And just this last week some of its officials were 
sentenced to substantial prison time.
    Had an EEP--an Enhanced Enforcement Program--been in place 
at an earlier date, many McWane workers could have been saved 
from death or serious injury.
    Currently, under the EEP--did I say FEP?--if OSHA has 
reason to target a recalcitrant employer for the program, it is 
permitted to conduct enhanced enforcement activities, such as 
follow-up inspections and inspections of related worksites. It 
also can insist that a company hire a health and safety 
consultant to develop a health and safety program or apply the 
terms of any settlement that it reaches with the employer on a 
company-wide basis.
    After 6 years of operation, it is clear that EEP's original 
design is flawed, and that OSHA under the Bush Administration 
didn't implement the program as intended.
    The Office of Inspector General--the OIG--has conducted an 
audit of the program and has come up with some startling 
results. They include the fact that in 97 percent of the cases 
that the audit sampled, OSHA did not comply fully with the 
requirements of the program. These omissions were not trivial. 
They held very serious consequences.
    Jesus Rojas, who is here with us today as a witness, will 
testify as to just how devastating these mistakes can be. He is 
the stepson of Raul Figueroa, who was killed in January 2008 
while working as a mechanic for Waste Management, Inc. at one 
of the company's facilities in Broward County, Florida.
    Mr. Rojas, I am so sorry for your loss. And I think you are 
very brave to be here today. Your stepfather died a gruesome 
and senseless death, when he was crushed by that hydraulic arm 
of a garbage truck--something that we believe could have been 
prevented.
    Now, Waste Management, Incorporated is a large company with 
multi-state facilities. We all know that. It has a history of 
OSHA violations. In fact, before Mr. Figueroa died, another 
worker had suffered a similar fate at a different facility in 
Florida.
    And Waste Management was one of the 32 employers the 
inspector general found that should have been targeted for the 
EEP, but it hadn't been.
    If the company had been properly monitored under the EEP, 
would Mr. Figueroa be with us today? That is a sobering 
question and a sobering thought and one that deserves our full 
attention, which is why we are conducting this hearing. We need 
to know why the program isn't working and what we can do to fix 
or revamp it.
    I am very pleased to welcome all of our witnesses, 
including Acting Assistant Secretary for OSHA, Jordan Barab, 
who we have all worked with--who I am going to call 
``Secretary'' until this gets all settled, because I am not 
going to say ``Acting Assistant Secretary.'' Okay? I am going 
to say ``Secretary Barab''--who, until very recently, as I 
said, was on this side of the table.
    Mr. Secretary, we know that both you and Secretary Solis 
share a deep commitment to worker health and safety, and so we 
are looking forward to hearing from you about the agency's 
suggestions--be they legislative or administrative--so that we 
can target larger employers who are indifferent to their 
employees and do it appropriately.
    Now I would like to yield to Ranking Member Price.
    [The statement of Ms. Woolsey follows:]

        Prepared Statement of Hon. Lynn C. Woolsey, Chairwoman,
                 Subcommittee on Workforce Protections

    One year ago almost to the day, this subcommittee held a hearing on 
strengthening OSHA's enforcement of multi-state employers.
    Today--as part of the Workers Memorial Day commemoration--the 
subcommittee is examining OSHA's enhanced enforcement program (or EEP), 
which OSHA unveiled in 2003 to deal with large employers that are 
indifferent to the health and safety of their employees.
    The EEP (Enhanced Enforcement Program) was initiated in response to 
a widespread investigation by the New York Times and Frontline that 
exposed the horrendous working conditions at McWane, the biggest cast 
iron water and sewer pipe manufacturer in the world.
    From 1995-2003, at least 9 workers were killed and 4,600 workers 
were injured at McWane facilities across the country.
    McWane had received over 400 citations, but it had only one 
criminal conviction in 2002. At that time McWane paid only a fine.
    Several years later, McWane was found guilty of several work and 
safety and environmental criminal violations. And just this last week 
some of its officials were finally sentenced to substantial prison 
terms.
    Had an EEP been in place at an earlier date, many McWane workers 
might well have been saved from death or serious injury.
    Currently, under the EEP, if OSHA has reason to target a 
recalcitrant employer for the program, it is permitted to conduct 
enhanced enforcement activities, such as follow-up inspections and 
inspections of related worksites.
    It also can insist that a company hire a health and safety 
consultant to develop a health and safety program or apply the terms of 
any settlement it reaches with the employer on a company-wide basis.
    After 6 years of operation, it's clear that the EEP's original 
design is flawed, and that OSHA under the Bush Administration did not 
even implement the program as intended.
    The Office of Inspector General (OIG) has conducted an audit of the 
program and has come up with some startling results.
    In 97% of the cases the audit sampled, OSHA did not comply fully 
with the requirements of the program.
    These omissions were not trivial and had serious consequences.
    Jesus Rojas who is here with us today will testify as to just how 
devastating these kinds of mistakes can be. He is the step-son of Raul 
Figueroa who was killed in January 2008 while working as a mechanic for 
Waste Management, Inc. at one of the company's facilities in Broward 
County, Florida.
    Mr. Rojas I am so sorry for your loss.
    Your step-father died a gruesome and senseless death, when he was 
crushed by the hydraulic arm of a garbage truck he was working on. Now 
Waste Management, Inc. is a large company with multi-state facilities 
and it has a history of OSH act violations.
    In fact, before Mr. Figueroa died, another worker had suffered a 
similar fate at a different facility in Florida. And Waste Management 
was one of the 32 employers the inspector general found should have 
been targeted for the EEP but wasn't.
    If the company had been properly monitored under the EEP, would Mr. 
Figueroa be with us today?
    That is a sobering thought and one that deserves our full 
attention, which is why we are conducting this hearing today. We need 
to know why the program is not working and what we can do to fix or 
revamp it.
    I am very pleased to welcome all of our witnesses, including acting 
assistant secretary for OSHA, Jordan Barab, who until very recently 
used to sit on this side of the table.
    Mr. Assistant Secretary, we know that both you and Secretary Solis 
share a deep commitment to worker health and safety, and so we are 
looking forward to hearing from you on the agency's suggestions--be 
they legislative or administrative--for targeting large employers who 
are indifferent to their employees.
                                 ______
                                 
    Dr. Price. Thank you, Madam Chair. And I want to thank you 
for holding this hearing and for inviting the panel members.
    I want to thank them, the distinguished panel members, for 
appearing today. And we appreciate the time that all of you 
have taken.
    And, Mr. Rojas, we do extend our deepest sympathy to you in 
the loss that your family has suffered.
    We meet today to examine OSHA's efforts on workplace 
safety. In particular, we are looking at one policy initiative: 
the Enhanced Enforcement Program. We look forward to hearing 
from both the inspector general and OSHA itself on their views 
about whether this program should be continued, or modified, or 
expanded, or eliminated.
    But speaking more broadly, as we examine OSHA's efforts 
with respect to workplace safety, I think it is important that 
we ask ourselves some questions. How do we, or how should we, 
evaluate whether our workplace safety laws are effective? Is it 
the number of citations that are issued? The amount of fines 
that are collected by regulators? The number of lawsuits filed?
    The best way to evaluate the effectiveness of our workplace 
health and safety laws should be to examine objective evidence, 
certain numbers. They show whether we are making progress in 
reducing workplace illnesses and injuries. When we look at 
those numbers, the trends over the past number of years are 
actually encouraging.
    Earlier this week, we heard at a similar hearing on 
workplace safety that when OSHA works cooperatively with 
businesses, particularly small ones, there has been significant 
and measurable progress. For example, in 2007 the Bureau of 
Labor Statistics reports that the number of deaths on the job 
fell to less than 4 for every 100,000 workers--the lowest rate 
on record. The Bureau also says that in 2007, non-fatal 
injuries and illnesses were down by 4 percent, or 122 cases for 
every 10,000 workers.
    Figures from OSHA tell a similar story. These numbers show 
that since 2001, workplace deaths have declined 14 percent, and 
the injuries and illnesses have dropped 21 percent.
    Now, any--is too many. There is no acceptable level of 
workplace injury or illness. But it is important that as we 
evaluate the effectiveness of our laws that we do so with the 
goal of improving and building upon those that are actually 
working rather than reversing course for politics for an 
ideological agenda.
    I hope that as we move forward in assessing our workplace 
safety regime that we keep that principle in mind.
    With that, Madam Chairman, I look forward to the testimony 
and working with you on this very important issue.
    [The statement of Mr. Price follows:]

   Prepared Statement of Hon. Tom Price, Ranking Republican Member, 
                 Subcommittee on Workforce Protections

    Good morning and thank you, Chairwoman Woolsey. I would like to 
begin by thanking our distinguished panels of witnesses for appearing 
today. We appreciate that they have taken time out of their busy 
schedules to share their expertise and experiences with us.
    We meet today to examine OSHA's efforts on workplace safety.
    In particular, we are looking at one policy initiative, the 
Enhanced Enforcement Program. I look forward to hearing both from the 
Inspector General and OSHA itself on their views about whether this 
program should be continued, modified, expanded, or eliminated.
    But speaking more broadly, as we examine OSHA's efforts with 
respect to workplace safety, we must ask ourselves some questions: How 
do we evaluate whether our workplace safety laws are effective? Is it 
the number of citations issued? The amounts of fines collected by 
regulators? The number of lawsuits filed?
    The best way to evaluate the effectiveness of our workplace health 
and safety laws is to examine the objective evidence--the numbers. They 
show whether we are making progress in reducing workplace illness and 
injury. And when we look at those numbers, the trends are encouraging.
    Earlier this week, we heard at a similar hearing on workplace 
safety that when OSHA works cooperatively with businesses, particularly 
small ones, there has been significant, measurable progress.
    For example, in 2007, the Bureau of Labor Statistics reports that 
the number of deaths on the job fell to less than four for every 
100,000 workers--the lowest rate on record. The Bureau also says that 
in 2007, non-fatal injuries and illnesses were down by 4 percent--or 
122 cases for every 10,000 workers.
    Figures from OSHA tell the same story. These numbers show that 
since 2001, workplace deaths have declined 14 percent. Meanwhile, 
injuries and illness rates have dropped 21 percent.
    I am not suggesting that there is an ``acceptable'' level of 
workplace illness or injury. But it is important, as we evaluate the 
effectiveness of our laws, that we do so with the goal of improving 
those that are working, rather than reversing course for politics or an 
ideological agenda. I hope that as we move forward in assessing our 
workplace safety regime that we keep that principle in mind.
    With that, I look forward to hearing from our witnesses this 
morning. Thank you, Madame Chairwoman.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Mr. Price.
    Without objection, all members will have 14 days to submit 
additional materials for the hearing record.
    Now, I would like to introduce our very distinguished panel 
of witnesses here with us today. We will have two panels. The 
first panel is seated. The second panel will be Secretary Bar--
I am sorry, I said that wrong Jordan. But I never have called 
you by your last name. That is my problem.
    So, welcome, all of our witnesses.
    Just before I introduce you, know what our lighting system 
is all about. You have 5 minutes for your testimony. And so a 
green light will go on when you begin speaking. And when the 
orange light comes on, you have 1 minute remaining.
    And we have the same amount of time. So it isn't like we 
aren't under the same restrictions. We are. But after the 1 
minute, then a red light comes on. So we are hoping by the time 
you are into the orange light you are starting to tie up and 
bring your thoughts to conclusion.
    If there are some thoughts that you haven't gotten out, get 
them out during question and answers if you can. If not, finish 
your thought for sure. The floor doesn't open up. You don't 
disappear.
    So now I want to introduce our witnesses. And our witnesses 
will speak in the order that they are seated and how they will 
be introduced.
    Mr. Elliot Lewis joined the U.S. Department of Labor in 
1991, now serves as the assistant inspector general for audit, 
Office of Inspector General, U.S. Department of Labor. Prior to 
this, he served as the deputy assistant inspector general for 
audit.
    He received his B.S. at the University of South Carolina in 
1978. He is a certified public accountant in the state of South 
Carolina, a member of the American Institute of Certified 
Public Accountants.
    Mr. Jesus Rojas is the stepson of Raul Figueroa, a mechanic 
at Waste Management who was the victim of a gruesome accident 
which resulted in his death. Since the accident, Jesus has 
spoken out about the need for employees to be held accountable 
for such accidents. He received an associate degree in homeland 
security from Everest University and is currently working at 
Comcast.
    Mr. Jason Schwartz is a partner in the Washington, D.C., 
office of Gibson, Dunn & Crutcher and a member of the firm's 
Labor and Employment Practice Group and its litigation 
department. His practice includes the full range of labor and 
employment matters, including ERISA, the Occupational Safety 
and Health Act.
    And Mr. Schwartz earned his J.D. from the Georgetown 
University Law Center, and received a B.A. degree in 
international affairs from the George Washington University.
    Mr. Eric Frumin serves as the Health and Safety Coordinator 
for Change to Win. Mr. Frumin served as Chair of the Labor 
Advisory Committee on OSHA Statistics to the U.S. Bureau of 
Labor Statistics from 1983-2003. He received his B.A. from the 
State University of New York in 1979 and his master's degree 
from New York University in 1981.
    I welcome all four of you.
    And we will begin with you, Mr. Lewis.

 STATEMENT OF ELLIOT P. LEWIS, ASSISTANT INSPECTOR GENERAL FOR 
                AUDITS, U.S. DEPARTMENT OF LABOR

    Mr. Lewis. Madam Chair and members of the Subcommittee----
    Chairwoman Woolsey. And you need to turn on your 
microphone, or either put it closer to you.
    Mr. Lewis. Okay.
    Madam Chair and members of the Subcommittee, I appreciate 
the opportunity to discuss the Office of Inspector General's 
audit of OSHA's Enhanced Enforcement Program. I will summarize 
my statement and ask for my full statement to be entered in the 
record.
    As you know, Madam Chair, the purpose of the Enhanced 
Enforcement Program is to identify high-risk employers and 
target their worksites with increased enforcement action. I 
will focus my testimony on our recent report that assessed 
whether establishments were properly identified, whether 
follow-up inspections were conducted, and whether OSHA's 
January 2008 directive had an adverse impact on the program.
    Madam Chair, our overall conclusion was that OSHA did not 
always properly identify establishments and conduct enhanced 
enforcement inspections. Specifically, for 97 percent of EEP 
qualifying cases that we sampled, OSHA did not comply with at 
least one of the following four requirements: designating 
enhanced enforcement cases, inspections of related worksites, 
enhanced follow-up inspections and enhanced settlement 
provisions.
    First, OSHA did not properly designate 53 percent of 
sampled cases. As a result, the worksites were not subject to 
the full range of enhanced enforcement actions, and 24 
employers had 33 subsequent fatalities.
    Second, we found that OSHA did not generally inspect 
related worksites for 80 percent of the cases, and 34 of these 
employers had 47 subsequent fatalities at other worksites. 
Related worksites inspections were to be used to determine 
whether compliance was a company-wide problem.
    OSHA either did not commit necessary resources or lacked 
information on other worksites needed to perform the 
inspections. Inspections may have deterred and abated hazards 
at worksites where 47 subsequent fatalities occurred.
    Third, we found that OSHA did not conduct proper worksite 
follow up on 146 of 282 cases. And there were five subsequent 
fatalities at the same worksites. Enhanced enforcement 
requirements state that a follow-up inspection must be 
conducted to assess not only whether cited violations were 
abated but also whether the employer was committing similar 
violations.
    Fourth, OSHA generally did not utilize enhanced settlement 
provisions to better ensure future compliance with the OSH Act. 
OSHA did not include enhanced settlement provisions in 153 of 
188 cases with settlement agreements.
    Finally, OSHA did not have specific criteria for issuing 
National Office Alert Memorandum on employers with worksites 
across regions or states. This occurred because OSHA did not 
place appropriate emphasis on compliance, commit necessary 
resources, or provide clear policy guidance.
    Our sample included 22 employers with worksites across 
states or regions that had multiple facilities and/or cases. 
OSHA issued Alert Memoranda on only five of these employers, 
and the alerts were not issued until after the majority of 
fatalities had occurred.
    Our audit also examined whether OSHA's January 2008 
directive had an adverse impact on the Enhanced Enforcement 
Program. The 2008 criteria resulted in significantly fewer 
eligible cases. But despite this drop in the workload, OSHA 
still did not focus on qualifying employers with company-wide 
safety and health violations and issues.
    OSHA has not placed the appropriate management emphasis and 
resources on this program to ensure its effectiveness. While we 
cannot conclude that enhanced enforcement would prevent 
subsequent fatalities, full and proper application of the 
program may have deterred and abated hazards at worksites for a 
total of 45 employers where 58 subsequent fatalities occurred.
    We made six recommendations including that OSHA's Assistant 
Secretary form a task force to make recommendations to improve 
the efficiency and effectiveness of the program, revise its 
2008 directive, provide specific criteria for issuing alert 
memorandum, and assuring that enhanced settlement provisions 
are used.
    Madam Chair, this concludes my statement. I would like to 
thank you for the opportunity to share the OIG's findings on 
this important issue. I am happy to respond to any questions 
you or other Subcommittee members may have.
    [The statement of Mr. Lewis follows:]

Prepared Statement of Elliot P. Lewis, Assistant Inspector General for 
      Audit Office of Inspector General, U.S. Department of Labor

    Madam Chair, and Members of the Subcommittee, I appreciate the 
opportunity to discuss the Office of Inspector General's (OIG) audit of 
the Enhanced Enforcement Program (EEP) administered by the Occupational 
Safety and Health Administration (OSHA). As you know, the OIG is an 
independent entity within the Department of Labor (DOL); therefore, the 
views expressed in my testimony are based on the findings and 
recommendations of my office's work and are not intended to reflect the 
Department's position.
Background
    Since OSHA's inception in 1971, its core mission has been ``to 
promote the safety and health of America's working men and women * * 
*'' With few exceptions, the OSH Act covers most private sector 
employers and their employees in the 50 states and all territories, 
either directly through Federal OSHA or through an OSHA-approved state 
program. OSHA's workforce comprises approximately 2,100 employees which 
include inspectors, whistleblower investigators, engineers, physicians, 
educators, standards writers, and other technical and support 
personnel. OSHA uses three basic strategies to help employers and 
employees reduce injuries, illnesses, and deaths on the job:
    1. Enforcement.
    2. Outreach, education, and compliance assistance.
    3. Partnerships, Alliances, and other cooperative and voluntary 
programs.
    Currently, OSHA covers 115 million workers at 7.2 million 
worksites. In FY 2008, OSHA's 1,000 inspectors conducted over 38,000 
inspections of worksites to identify hazards and unsafe conditions that 
have significant impact on worker safety and health.
    OSHA reported in its publication ``All About OSHA' that annually:
     Almost 5,200 Americans die from workplace injuries in the 
private sector;
     As many as 50,000 employees die from illnesses in which 
workplace exposures were a contributing factor;
     Nearly 4.3 million people suffer non-fatal workplace 
injuries and illnesses; and
     The cost of occupational injuries and illnesses totals 
more than $156 billion.
    Because of its significant impact on the lives and well-being of 
American workers, it is essential that OSHA target its limited 
resources to inspect workplaces with the highest risk of hazardous 
conditions.
    As you know Madam Chair, in 2003, OSHA augmented its enforcement 
program by establishing the Enhanced Enforcement Program for employers 
indifferent to their obligations under the Occupational Safety and 
Health Act of 1970, placing their employees at greater risk. The 
purpose of EEP is to identify these high-risk employers and target 
their worksites with increased enforcement attention. Employers are 
identified from all types of inspections where cited violations are: 
serious, high gravity, and related to fatalities; willful and/or 
repeat; or related to a failure-to-abate previously cited hazards. Once 
identified, EEP cases are supposed to receive additional enforcement 
efforts such as enhanced follow-up inspections, inspections of other 
workplaces of the employer, and more stringent settlement terms. EEP 
inspections represent a small percentage (1 percent) of total 
programmed inspections, but the targeted employers are deemed by OSHA 
to pose the highest risk to employee safety.

Enhanced Enforcement Program
    Madam Chair, as requested by the Subcommittee, I will focus my 
testimony on our recent report that assessed (a) whether establishments 
were properly identified as EEP cases and inspections were conducted in 
accordance with OSHA's EEP Directives and (b) whether OSHA's January 
2008 revised EEP Directive had an adverse impact on the EEP and its 
ability to protect the American worker. As part of our audit, we 
reviewed a total of 325 cases of which 282 were EEP qualifying cases. 
The 282 cases involved 196 employers and a total of 274 fatalities. In 
cases where we found a problem with effective implementation of EEP, we 
identified 45 employers who had a total of 58 subsequent fatalities.

Were Establishments Properly Identified as EEP Cases and Were 
        Inspections Conducted in Accordance with OSHA's EEP Directives?
    Our overall conclusion was that OSHA did not always properly 
identify and conduct EEP inspections. For 97 percent of EEP qualifying 
cases we sampled, OSHA did not comply with at least one of the 
following requirements: designating EEP cases; inspections of related 
worksites; enhanced follow-up inspections; or enhanced settlement 
provisions. In addition, OSHA did not have specific criteria for 
issuing National Office EEP Alerts on multi-state employers. These 
alerts are issued when OSHA believes it is necessary to notify regional 
and state administrators about employers with multiple worksites across 
regions and/or states. This shortcoming occurred because OSHA did not 
place appropriate emphasis on compliance; commit necessary resources; 
or provide clear policy guidance.
    Full and proper application of EEP procedures may have deterred and 
abated hazards at the worksites of 45 employers where 58 subsequent 
fatalities occurred.
    Following is a brief description of our specific findings.

OSHA Did Not Properly Designate 53 Percent of Sampled EEP Qualifying 
        Cases and 24 Employers had 33 Subsequent Fatalities
    OSHA management did not ensure indifferent employers were properly 
designated for the program. Specifically, OSHA did not properly 
identify 149 of 282 (53 percent) sampled EEP qualifying cases because 
area office staff did not understand EEP requirements or because of 
coding errors in OSHA's online data system (Integrated Management 
Information System, IMIS). As a result, the worksites were not subject 
to the full range of EEP actions. The EEP actions may have provided a 
deterrent and abatement to address violations at worksites where 
subsequent fatalities occurred.

OSHA Generally Did Not Inspect Related Worksites for 80 Percent of 
        Sampled EEP Qualifying Cases and 34 Employers had 47 Subsequent 
        Fatalities at Other Worksites
    OSHA generally did not inspect related worksites even when company-
wide safety and health issues indicated that workers at these sites 
were at risk for serious injuries or death. Specifically, OSHA did not 
properly consider related worksite inspections for 226 of 282, (80 
percent), of sampled cases. Related worksite inspections were to be 
used to determine whether compliance problems in the EEP case were 
indications of a company-wide problem. OSHA either did not commit the 
necessary resources or lacked information on other worksites needed to 
perform the inspections. Inspections may have deterred and abated 
hazards at the worksites where the 47 subsequent fatalities occurred.

OSHA Did Not Conduct Proper Follow Up on 52 Percent of Sampled EEP 
        Qualifying Cases and 5 Subsequent Fatalities Occurred at the 
        Same Worksite
    EEP requirements state that a follow-up inspection must be 
conducted to assess not only whether the cited violation(s) were abated 
but also whether the employer was committing similar violations. OSHA 
did not comply with requirements for follow-up inspections to ensure 
abatement and determine whether employers were committing similar 
violations. Specifically, OSHA did not conduct proper follow up for 146 
of 282 (52 percent) sampled EEP qualifying inspections, or provide a 
compelling reason to not perform the follow-up inspections. Of the 
sampled employers with multiple EEP qualifying and/or fatality cases, 
54 did not have proper EEP follow up, and 5 of the 54 employers had 
subsequent fatalities at the same worksite.

OSHA Generally Did Not Utilize Enhanced Settlement Provisions 
        Effectively for Sampled EEP Qualifying Cases and 45 Employers 
        had 32 Subsequent Fatalities
    OSHA generally did not utilize enhanced settlement provisions to 
maximize the deterrent value of EEP actions and ensure future 
compliance with OSH Act. EEP criteria states that in some settlement 
agreements, particularly for egregious cases and for other significant 
enforcement actions, OSHA require employers to take steps to address 
systemic compliance problems or to provide OSHA with information to 
facilitate follow up inspections. However, we found enhanced settlement 
provisions were not included in 153 of 188 (81 percent) EEP qualifying 
cases with settlement agreements.
    Employers with multiple EEP qualifying and/or fatality cases pose 
the greatest risk for workplace injuries or fatalities. Of these 
sampled employers, 60 had a total 108 settlement agreements, and 
enhanced provisions were not included in 89 agreements. For 45 of the 
60 employers, none of their settlement agreements contained enhanced 
provisions, and the employers had 32 fatalities subsequent to the 
settlement agreement dates.

OSHA Has No Specific Criteria for Issuing National Office EEP-Alert 
        Memorandum on Employers with Worksites Across Regions and/or 
        States
    OSHA criteria state that EEP-Alert Memoranda are issued when the 
National Office deemed it necessary to notify Regional Administrators 
and State Designees of the activity of a particular employer with many 
worksites across regions and/or states. However, the criterion was not 
specific on when to issue an EEP-Alert Memorandum and, nationally, OSHA 
has only issued memoranda on nine employers. Our sample contained 22 
employers where multiple EEP qualifying and/or fatality cases occurred 
in more than one region (totaling 87 fatalities). OSHA issued EEP-Alert 
Memoranda on only 5 of those sampled employers and only after the 
majority of the fatalities had occurred.

Does OSHA's January 2008 Revised EEP Directive Have an Adverse Impact 
        on the EEP and Its Ability to Protect the American Worker?
    With the 2008 revised EPP directive, OSHA still did not focus EEP 
enforcement actions on qualifying employers with company-wide safety 
and health issues to protect workers from subsequent injuries or 
fatalities. Over the last five years, the purpose of EEP remained the 
same: to target employers who are indifferent to their OSH Act 
obligations. However, the revised directive incorporated a component of 
qualifying history (i.e., prior fatality and similar in-kind 
violations) which effectively reduced the number of EEP qualifying 
cases; delayed designation; and increased the risk that employers with 
multiple EEP qualifying and/or fatality cases may not be properly 
designated due to the lack of quality history data. Further OSHA 
continued to not properly designate and conduct EEP cases. As a result, 
fewer employers may be subjected to EEP enhanced enforcement actions 
and may incur more fatalities before designation occurs.

Less EEP Qualifying Cases Means Fewer Employers Subject to EEP 
        Activities and Greater Risk for Subsequent Fatalities
    Using the 2008 criteria, the number of EEP qualifying cases was 
reduced significantly. In 2008, OSHA designated 7 percent of all 
fatality cases for enhanced enforcement, whereas OSHA designated an 
average of 50 percent between 2003 and 2007. Analysis of 2008 
fatalities revealed 260 cases would not have been designated under the 
2008 criteria, but would have qualified under the original EEP 
criteria. Because the fatalities occurred in 2008, 260 employers would 
not be subject to EEP activities and their employees may be at risk for 
injury or death before company-wide safety and health issues are 
addressed through OSHA enforcement.

Issues in Determining Employer History Delayed Designation and 
        Increased Risk That Employers May Not Be Properly Designated
    To more specifically focus the program on recalcitrant employers, 
the revised directive incorporated a key component of qualifying 
history of OSHA violations (including history with the State Plans). 
History determination is a manual search process, which can be affected 
by final order status of prior inspections, differences in standards 
cited for state cases, and lack of quality data for history searches 
due to employer-related companies and name variations. Issues in 
determining employer history delayed designation and increased the risk 
that employers may not be properly designated.
             Final Order Status of Prior Inspections
    History searches were complicated by the status of prior cases. 
Similar in-kind violations cannot be determined until there is a final 
order of settlement, which takes on average 6 months from the contest 
date.
             Differences in Standards Cited For State Cases
    Another challenge of history searches is determining similar in-
kind violations when using State inspection data. There were 26 states 
and territories which operate their own safety and health programs 
under an OSHA approved state plan. Although these state-plan states 
enter violations into OSHA's information system, the states' coding may 
be different from OSHA's. OSHA does not have a crosswalk between state 
and Federal codes to assist in determining similar in-kind history. Of 
the 26 state-plan states, 5 states use different coding for most, if 
not all, of their safety and health standards: California, Washington, 
Michigan, Hawaii, and Oregon. Another 17 states have a few unique codes 
because Federal equivalent codes do not exist. Four states use coding 
identical to Federal OSHA. Without a crosswalk between state and 
Federal codes, determining similar in-kind history may be impossible or 
very time consuming.
             Lack of Quality Data
    OSHA officials indicated that history searches are subject to 
errors due to the lack of quality information on the employer in IMIS. 
Employers could have several different names in IMIS due to spelling 
errors; abbreviations; punctuation; name variations; or different 
divisions, operating units or physical locale. History searches may 
also omit events of related companies such as parent and subsidiary, 
because the names are not linked in IMIS. OSHA officials stated that 
they plan to address naming issues in the new OSHA Information System, 
which is currently under development with a roll-out date in the fall 
of 2010.

OSHA Continued to Not Properly Designate and Conduct EEP Cases
    Although the 2008 criteria resulted in significantly fewer eligible 
cases, OSHA continued having issues with designating and conducting EEP 
cases. Out of 708 fatality cases, OSHA designated 50 fatality cases as 
EEP, but failed to identify 32 cases and improperly designated 16 
cases.
    Furthermore, we noted similar problems in complying with the 2008 
criteria as we did the 2003 criteria. We reviewed 11 EEP cases from 
2008, of which 7 had no documentation that OSHA considered related 
worksite inspections; 4 did not have proper follow up; and 3 with 
settlement agreements did not include enhanced provisions.

Criteria Gaps May Mean Delayed EEP Designation and Additional 
        Fatalities
    There are gaps in the 2008 criteria which may mean delays and 
additional fatalities before an employer is designated as an EEP case. 
The revised directive has six criteria for becoming an EEP case, of 
which three require prior history of another fatality or similar in-
kind violations within three years to qualify for the program. However, 
the criteria leaves gaps where employers would not qualify for EEP 
without an additional fatality or non-fatality case.
             Employer's History Included Fatality and Non-
                    Fatality Cases
    One gap occurred when the employer's history included both fatality 
and non-fatality cases. The non-fatality criterion does not consider 
prior fatalities as relevant history for EEP designation, unless the 
fatality cases have similar in-kind violations. This gap also applies 
in the inverse as the fatality criteria do not consider prior non-
fatality cases unless the cases have similar in-kind violations.
    From our limited sample of 2008 cases, we do not have any that 
illustrate this gap and the impact of additional fatalities before 
designation. Using cases prior to 2008 as an example, one employer 
Homrich Incorporated had a non-fatality case that had three serious, 
willful violations cited. Homrich Incorporated had a fatality which 
occurred 15 months prior, but did not have similar violations to the 
non-fatality case. If these cases occurred in 2008, then the prior 
fatality would not have been considered as relevant history for EEP 
designation. As such, Homrich Incorporated incurred an additional 
fatality 15 months later, and only then would have qualified for EEP 
under the 2008 criteria.
             EEP Qualifying Case Occurred in a State That Did 
                    Not Adopt An EEP Plan
    Another gap occurs when the employer's history includes Federal and 
state OSHA cases. When a case that meets EEP criteria for designation 
occurs at a state that has not adopted EEP, no enhanced enforcement 
actions would be taken until a subsequent fatality or serious case 
occurs under Federal jurisdiction. The criterion is silent on how OSHA 
will address incidents that would qualify as an
    EEP case that occur in a state that has not adopted EEP.

Overall Conclusion
    Madam Chair, our overall conclusion is that OSHA has not placed the 
appropriate management emphasis and resources on this program to ensure 
indifferent employers were properly designated for this program and 
subject to EEP actions. It is essential that OSHA target its limited 
resources to inspect workplaces with the highest risk of hazardous 
conditions that have greater potential to cause injuries and 
fatalities. By analyzing inspection information, OSHA can identify 
worksites with known hazardous conditions to target under EEP. By 
effectively utilizing EEP activities, OSHA could reduce the risk of 
future injuries, illnesses, and fatalities.
    While we cannot conclude that enhanced enforcement would prevent 
subsequent fatalities, full and proper application of EPP procedures 
may have deterred and abated workplace hazards at the worksites of 45 
employers where 58 subsequent fatalities occurred.

Recommendations
    We recommend the Assistant Secretary for Occupational Safety and 
Health:
    1. Form an EEP Task Force to make recommendations to improve 
program efficiency and effectiveness to include:
     Targeting indifferent employers most likely to have 
unabated hazards and/or company-wide safety and health issues at 
multiple worksites.
     Ensuring appropriate actions (i.e., follow-up and related 
worksite inspections) are taken on indifferent employers and related 
companies.
     Centralizing data analysis to identify employers with 
multiple EEP qualifying and/or fatality cases that occur across 
Regions.
     Identifying and sharing Regional and Area Offices' ``best 
practices'' to improve compliance with EEP requirements.
    1. Revise EEP directive to address issues with prior qualifying 
history and designation, and to provide specific criteria when National 
Office EEP-Alert Memoranda are to be issued.
    2. Provide formal training on EEP requirements including 
designation, consideration of related worksite inspections, enhanced 
enforcement follow up, and enhanced settlement provisions to ensure 
consistent application of EEP requirements.
    3. Incorporate enhanced settlement provisions in OSHA's informal 
settlement template.
    4. Establish controls for periodic reconciliation of the EEP log to 
OSHA's data system.
    5. Develop and distribute a crosswalk to Federal OSHA citations for 
state standards that have a different coding than Federal OSHA 
standards.
    Madam Chair, this concludes my statement. I would like to thank you 
for the opportunity to share the OIG's findings on this important 
issue. I am happy to respond to any questions that you or the other 
Subcommittee members may have.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Mr. Rojas?

 STATEMENT OF JESUS ROJAS, STEPSON OF RAUL FIGUEROA, A WORKER 
    WHO WAS CRUSHED TO DEATH AS A RESULT OF UNSAFE WORKING 
                           CONDITIONS

    Mr. Rojas. Chairwoman Woolsey, Representative Price, 
members of the Committee, thank you for inviting me here today 
to talk about accountability for work safety.
    My name is Jesus Rojas. I live in West Palm Beach, Florida. 
I am the stepson of Raul Figueroa, who was a mechanic at Waste 
Management.
    Chairwoman Woolsey. Can you put that a little bit closer?
    Mr. Rojas. Yes. Better?
    Chairwoman Woolsey. That is way better.
    Mr. Rojas. On January 3rd, 2008, my stepfather died in a 
gruesome accident at Waste Management's facility in North 
Broward, Florida.
    The company told me and my family what happened. They said 
a hydraulic arm on a truck malfunctioned and pinned my 
stepfather against the cab. His body was severed.
    But that is not the whole story. Companies like Waste 
Management need to be held accountable for workers' deaths that 
could have been prevented.
    After my stepfather's death, my family and I spoke with his 
co-workers. We learned other disturbing details. We learned 
that my stepfather began working on the truck, a front loader, 
at around 5:30 a.m. He was told the hydraulic arms on the truck 
were not working.
    My stepfather was very safety conscious. And to make sure 
the repair job was done safe, he went to his supervisor and 
asked for a ladder. He was told there was no ladder, or that 
the ladder was broken.
    Later, he went back to the supervisor and asked for a 
second mechanic to help with the repairs. Having a ladder or a 
second person was necessary for safety reasons. But he was told 
they didn't have a second person to help him.
    The supervisors are also supposed to check on the mechanics 
every half hour to make sure that things are okay. But that 
didn't happen in the case of my stepfather. Instead, at around 
8:30 or 9:00, his coworker came by and saw my stepfather. The 
coworker pulled the alarm, and the supervisors came to the 
scene.
    Instead of cutting the line that powered the hydraulic 
arms, the supervisors started pulling at my stepfather to free 
his body. As a result, we will never know for sure what 
happened because the accident scene was compromised.
    We also learned that a ladder was pictured in the photos of 
the accident scene. Since my stepfather's coworkers told us 
that he wasn't able to get a ladder for the repair job, we 
believe supervisors placed the ladder near the truck after the 
accident.
    For some time before his death, my stepfather complained 
about safety problems at the facility. He complained about the 
long hours he and his coworkers had to work. Often they didn't 
have adequate help when they needed it.
    He complained that the company didn't provide the proper 
parts for the trucks. He said they were forced to patch the 
trucks but weren't given parts they needed to repair them 
properly and make them safe.
    My stepfather heard that the less money the company spent 
on parts, the more bonus money the managers received. My 
stepfather was repeatedly told by his supervisors, ``You need 
to get the truck out on the roads.'' They said they didn't care 
how they fixed them.
    After the accident, we found out that company officials 
backdated the service records on the truck my stepfather was 
working on when he was killed. My brother-in-law spoke to the 
person assigned to do the backdating of records.
    Companies need to keep up-to-date safety records, and they 
need to be punished for backdating safety records. We can't 
just rely on the company's word when it comes to safety.
    Waste Management did get fined in the case of my 
stepfather. I am not sure about the specific violations. OSHA 
told us that they investigated the accident and cited the 
company for two different safety violations. I believe that the 
fine was between $9,000 and $10,000.
    Thankfully, my mother did receive money from my 
stepfather's life insurance, which she used to pay off her 
home. However, after the accident, my mother had to stop 
attending English classes and began working two jobs to make 
ends meet.
    She still works two jobs, one at a Publix Supermarket and 
the other as a janitor at night. Because my mom had to 
discontinue studying English, she cannot work as a medical 
assistant, which is the profession she has a degree in.
    My stepfather left behind my mother, me, 27-year-old 
sister. He also left two daughters in Cuba and a grandson there 
who will never meet his grandfather.
    Companies like Waste Management should not be allowed to 
cut corners and compromise safety. They need to provide enough 
staff to make sure workers are safe on the job. They need to be 
punished when they backdate safety records to cover up flaws in 
their safety procedures.
    A lot of people know that Dr. Martin Luther King, Jr. was 
killed in Memphis in 1968. What they don't know is that Dr. 
King traveled to Memphis to support striking sanitation 
workers. They were striking because two sanitation workers were 
killed on the job.
    Forty years after Dr. King was assassinated is time enough 
to hold companies accountable for practices that kill and 
injure workers.
    Thank you for your time.
    [The statement of Mr. Rojas follows:]

       Prepared Statement of Jesus Rojas, Stepson, Raul Figueroa,
                     Waste Management Inc. Mechanic

    Chairwoman Woolsey, Representative Price, members of the Committee: 
Thank you for inviting me here today to talk about accountability for 
workplace safety.
    My name is Jesus Rojas. I live in West Palm Beach, Florida. I am 
the stepson of Raul Figueroa, who was a mechanic at Waste Management. 
On January 3rd, 2008, my stepfather died in a gruesome accident at 
Waste Management's facility in North Broward, Florida.
    The company told me and my family what happened. They said a 
hydraulic arm on a truck malfunctioned and pinned my stepfather against 
the cab. His body was severed.
    But that is not the whole story.
    Companies like Waste Management need to be held accountable for 
workers' deaths that could have been prevented.
    After my stepfather's death, my family and I spoke with his co-
workers. We learned other disturbing details.
    We learned that my stepfather began working on the truck, a front 
loader, around 5:30 a.m. He was told the hydraulic arms on the truck 
were not working.
    My stepfather was very safety conscious. To make sure the repair 
job was safe, he went to his supervisor and asked for a ladder. He was 
told there was no ladder or that the ladder was broken.
    Later, he went back to the supervisor and asked for a second 
mechanic to help with the repairs. Having a ladder or a second person 
was necessary for safety reasons. But he was told they didn't have a 
second person to help him.
    The supervisors are supposed to check on the mechanics every half 
hour to make sure things are OK. But that didn't happen in the case of 
my stepfather.
    Instead, at around 8:30 or 9 a.m., his coworker came by and saw my 
stepfather. The coworker pulled the alarm and the supervisors came to 
the scene.
    Instead of cutting the line that powered the hydraulic arms, the 
supervisors started pulling at my stepfather to free his body. As a 
result we will never know for sure what exactly happened because the 
accident scene was compromised.
    We also learned that a ladder was pictured in the photos of the 
accident scene. Since my stepfather's coworkers told us he wasn't able 
to get a ladder for the repair job, we believe supervisors placed the 
ladder near the truck after the accident.
    For some time before his death, my stepfather complained about 
safety problems at the facility.
    He complained about the long hours he and his coworkers had to 
work. Often they didn't have adequate help when they needed it. He 
complained that the company didn't provide the proper parts for the 
trucks. He said they were forced to patch the trucks, but weren't given 
the parts they needed to repair them properly and make them safe. My 
stepfather heard that the less money the company spent on parts, the 
more bonus money the managers received.
    My stepfather was repeatedly told by his supervisors, ``You need to 
get the trucks out on the roads.'' They said they didn't care how he 
fixed them.
    After the accident, we found out that company officials backdated 
the service records on the truck my stepfather was working on when he 
was killed. My brother-in-law spoke to the person assigned to do the 
backdating of records.
    Companies need to keep up-to-date safety records, and they need to 
be punished for backdating safety records. We can't just rely on the 
company's word when it comes to safety.
    Waste Management did get fined in the case of my stepfather. I'm 
not sure about the specific violations. OSHA told us that they 
investigated the accident and cited the company for two different 
safety violations. I believe the fine was between $9,000 and $10,000.
    Thankfully, my mother received money from my stepfather's life 
insurance, which she used to pay off her home. However, after the 
accident, my mother had to stop attending English classes and began 
working two jobs to make ends meet. She still works two jobs. One is at 
a Publix supermarket, the other as a janitor at night.
    Because my mom had to discontinue studying English, she cannot work 
as a medical assistant, which is the profession she has a degree in.
    My stepfather left behind my mother, me, and my 24-year-old sister. 
He also left two daughters in Cuba and a grandson there who will never 
meet his grandfather.
    Companies like Waste Management should not be allowed to cut 
corners and compromise safety. They need to provide enough staff to 
make sure workers are safe on the job. They need to be punished when 
they backdate safety records to cover up flaws in their safety 
procedures.
    A lot of people know that Dr. Martin Luther King Jr. was killed in 
Memphis in 1968. What they don't know is that Dr. King traveled to 
Memphis to support striking sanitation workers. They were striking 
because two sanitation workers were killed on the job.
    Forty years after Dr. King was assassinated is time enough to hold 
companies accountable for practices that kill and injure workers.
    Thank you for your time.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    Mr. Schwartz? Can't hear you.
    Mr. Schwartz. Thank you.
    Chairwoman Woolsey. Thank you.

    STATEMENT OF JASON C. SCHWARTZ, PARTNER, GIBSON, DUNN & 
                         CRUTCHER, LLP

    Mr. Schwartz. Thank you, Madam Chairwoman, Ranking Member 
Price and members of the Committee.
    I am pleased to appear today on behalf of the U.S. Chamber 
of Commerce. The Chamber supports the conclusion of the 
Inspector General that the Enhanced Enforcement Program is a 
good idea that serves OSHA's purpose of improving workplace 
safety and focusing its resources where they can target the 
highest risk workplaces and worst offenders.
    Let me make four points about the program, as the Committee 
and the Agency considers it on behalf of the Chamber.
    Number one, we agree with the Inspector General that there 
is a need to examine the program criteria to ensure that it 
really is focusing on the most recalcitrant employers and the 
highest-risk workplaces.
    We think that objective criteria are needed that focus on 
workplaces where repeat or willful violations relate to 
fatalities like Mr. Rojas's stepfather's or that relate to 
serious injuries that occur in the workplace.
    We also think it ought to focus on workplaces where the 
employers are not abating violations that they have been 
advised of.
    And we also think that it needs to focus on workplaces 
where there are high risks that have not been identified by 
prior citation history, because as we all know, there are many 
workplaces out there that have not been subject to OSHA's 
inspection programs. And looking at that as the sole pool of 
workplaces from which you draw we don't think is a very 
effective mechanism.
    We agree that a task force should be created to define 
those criteria. And we think that it may make sense to do that 
on a trial basis as those criteria are refined. And we think 
all the stakeholders, including employers, ought to be involved 
in that effort to define those criteria where those resources 
are going to be focused.
    We think that is critical because there are 7.2 million 
workplaces in the United States. At its current rate, OSHA is 
inspecting \1/2\ of 1 percent of those workplaces. Even 
magnifying those resources by multiple factors will never reach 
out to any significant percentage of those workplaces.
    So you have got to figure out a way to leverage those 
resources to get at the worst, highest-risk offenders and to 
use outreach and education with others in order to expand 
OSHA's influence and improve safety.
    Second point I would like to make is with respect to the 
resources committed to this program. We agree with the 
Inspector General's conclusion that there are not enough 
resources committed to the program. And that may very well have 
led to the various issues that the Inspector General identified 
where OSHA was not able to follow up to the degree that the 
program called for.
    We think more resources ought to be committed to it. OSHA's 
response to the Inspector General indicated that the EEP was 
only 1 percent of the agency's enforcement program. We think 
that the Agency and, Madam Chairwoman, this Committee ought to 
focus on where the other 99 percent is going and whether, in 
fact, it is an effective use of resources.
    For example, OSHA's principle programmed inspection program 
is called Site-Specific Targeting. That program selects 
employers based on injury and illness data for wall-to-wall 
inspections. It results, many times, in selecting employers who 
are very conscientious at reporting sprains and strains 
throughout their workplace, not the type of high-profile, high-
risk workplaces that need this kind of attention.
    This point is demonstrated in my testimony. If you see, we 
have done a comparison of the number of citations issued to 
SST-inspected workplaces vs. the number of citations issued to 
Voluntary Protection Program workplaces, those that are 
showcased by OSHA as the best of the best. The bottom line is 
the numbers are not materially different.
    So SST is not focusing in the right area. And we think OSHA 
needs to take a good hard look at that in the context of this 
task force.
    Number three, we concur with the Inspector General that 
creative enforcement and settlement tools are appropriate.
    For example, we strongly believe that where you find a 
condition that is likely to be repeated in other worksites that 
OSHA ought to focus on those other worksites as well, so we can 
get the most health and safety benefit out of the inspection 
program and out of the settlement results. And we think that 
needs to be looked at on a case-by-case basis to see what 
methods are appropriate in each instance.
    Let me conclude with one final observation. The Inspector 
General is very careful to indicate that he can't conclude that 
any particular fatality resulted from a lapse in the Enhanced 
Enforcement Program. I think, though, the tone of the report 
certainly suggests that many fatalities did result. And we 
think that that is an unfair characterization.
    There are very many hardworking men and women at the 
Occupational Safety and Health Administration who have worked 
to prevent those kinds of incidents. And I think that the 
conclusion without evidence that following up on this program 
in certain instances would have prevented them is an 
unwarranted one and is an unfortunate inference from the 
report.
    I thank you for your time. And I would just suggest that 
preventing those kinds of injuries and illnesses ought to be 
our focus as we go forward in expanding and improving this 
program.
    [The statement of Mr. Schwartz follows:]

       Prepared Statement of Jason C. Schwartz, on behalf of the
                        U.S. Chamber of Commerce

    Good morning, and thank you for the opportunity to testify today 
regarding OSHA's Enhanced Enforcement Program. My name is Jason 
Schwartz, and I am a partner in the law firm Gibson, Dunn & Crutcher 
LLP. I am also a member of the U.S. Chamber of Commerce's Labor 
Relations Committee. My practice includes the full range of labor and 
employment law, including Occupational Safety and Health Act matters.
    I am pleased to appear before you today on behalf of the U.S. 
Chamber of Commerce, the world's largest business federation, 
representing more than three million businesses and organizations of 
every size, sector, and region to discuss the value of OSHA's Enhanced 
Enforcement Program and how it can be improved. The Chamber agrees with 
the Inspector General that the Enhanced Enforcement Program ``has the 
potential for achieving [OSHA's] purpose as it was designed to identify 
high-risk employers and target their worksites with increased 
enforcement attention.''\1\
    In that regard, I will address (1) Enhanced Enforcement Program 
criteria; (2) resources committed to the Enhanced Enforcement Program; 
(3) the use of creative enforcement and settlement tools in the 
Enhanced Enforcement Program; and (4) the Inspector General's 
conclusions regarding workplace fatalities.

1. Enhanced Enforcement Program Criteria
    As an initial matter, as we examine the effectiveness of OSHA's 
enforcement efforts, including the Enhanced Enforcement Program, we 
must recognize the practical realities in which OSHA operates. In 
particular, there are approximately 7.2 million worksites in the United 
States and only 2,400 OSHA inspectors.\2\ Those inspectors conducted 
38,591 inspections in fiscal year 2008.\3\ Assuming each of those 
inspections occurred at a separate worksite, that would represent only 
about one-half of one percent of all worksites. Even doubling the 
number of OSHA inspectors would bring the number of worksites inspected 
each year to only one percent. While Congress recently appropriated $80 
million in the stimulus package targeted for more enforcement in 
various DOL agencies including OSHA, and expanded OSHA's FY 2008 
appropriations by $27 million for FY 2009 with explicit instructions to 
focus on enforcement, there will never be sufficient funds to change 
this ratio in a material way. Thus, the need for prioritization of 
enforcement efforts, coupled with education and outreach, is 
compelling.
    Accordingly, the Enhanced Enforcement Program concept not only 
makes good sense, but is a practical necessity if OSHA is to fulfill 
its mission. The agency must focus its enforcement resources on those 
workplaces where citable violations creating serious risks to worker 
safety are most likely to be found, and where enhanced enforcement will 
be most likely to bring about effective corrective actions. The 
Inspector General's report recognized this very point, stating: ``It is 
essential that OSHA target its limited resources to inspect workplaces 
with the highest risk of hazardous conditions that have greater 
potential to cause injuries and fatalities.''\4\
    The U.S. Chamber agrees with OSHA that it is appropriate to focus 
enforcement resources on ``those employers who are indifferent to their 
obligations under the OSHA Act.''\5\ We support efforts to identify and 
properly define the employers who are subject to this program--
especially those whose willful or repeated violations are linked to 
workplace fatalities or other serious injuries, as well as those who 
are indifferent to their obligation to abate prior cited violations. It 
is also important to recognize that certain employers who are 
``indifferent to their obligations under the OSHA Act'' may not have 
been subject to prior inspections and, therefore, will not be 
identified through prior citation history. OSHA's Director of 
Enforcement Programs noted that the ``majority of these establishments 
[identified under the 2003 Enhanced Enforcement Program criteria] were 
not really `bad actors' and few had any significant history with OSHA. 
Most companies cited were first-time offenders.''\6\ He further noted 
that the revised 2008 Enhanced Enforcement Program criteria are 
``better in that [OSHA is] not picking up large numbers of small 
employers with a fatality, but [OSHA is] still not targeting the `bad 
actors' the program is intended for.''\7\ The Chamber concurs with the 
Inspector General's recommendation that a task force be established to 
help identify appropriate criteria for the Enhanced Enforcement 
Program, and believes that such a task force should consider 
stakeholder views in refining these criteria. The Chamber looks forward 
to participating in that process. As a baseline, we believe the 
criteria should be designed to identify inspection targets where the 
agency's efforts are most likely to result in the identification of 
``recalcitrant'' employers with citable violations related to serious 
safety and health risks. It may be useful to implement different 
criteria on a trial basis as OSHA works to refine its approach.

2. Resources Committed to the Enhanced Enforcement Program
    The Inspector General concludes that OSHA ``has not placed the 
appropriate management emphasis and resources on this program to ensure 
indifferent employers were properly designated for this program and 
subject to EEP actions.''\8\ In its response to the report, OSHA stated 
that inspections under EEP constitute a mere one percent of OSHA's 
enforcement efforts.\9\ We believe that the EEP could be more effective 
if more resources were re-directed to EEP from other, less effective 
enforcement programs.
    For example, OSHA's principal programmed enforcement program, Site-
Specific Targeting (``SST'') inspections, represents a major commitment 
of agency resources, but is often misdirected. Under the SST program, 
wall-to-wall inspections are conducted of many employers whose 
operations do not pose significant risks to employee safety and health. 
Because the SST program targets employers based on reported injury and 
illness data, it often targets conscientious employers who report even 
minor workplace related injuries. It also operates on the unjustified 
assumption that injury and illness rates are an indicator of high-risk, 
noncompliant workplaces.
    In many instances, this is simply not the case. Indeed, OSHA's own 
recordkeeping criteria require the reporting of injuries and illnesses 
regardless of fault as the Note to 29 C.F.R. 1904.0 expressly states, 
``Recording or reporting a work-related injury, illness, or fatality 
does not mean that the employer or employee was at fault, that an OSHA 
rule has been violated, or that the employee is eligible for workers' 
compensation or other benefits.'' But this is precisely the assumption 
upon which the SST program is based.
    A comparison of citation rates from the SST program and inspections 
of participants in OSHA's Voluntary Protection Program (``VPP'') 
illustrates the point. In connection with comments submitted to OSHA in 
August 2004 regarding the SST program, the U.S. Chamber of Commerce, 
the National Association of Manufacturers and the Retail Industry 
Leaders Association reviewed inspection records during 2003 and 2004 
for the ten companies whose workplaces appeared most frequently on the 
2003 SST inspection priority list (the ``SST top ten'').\10\ Less than 
45 percent of the 247 SST inspections conducted at the SST top ten 
yielded even one citation. In all, an average of 1.61 citations were 
issued per inspection, and more than 13 percent of these were 
withdrawn. Less than eight percent resulted in collection of the full 
proposed penalty, and no penalty at all was assessed for more than 40 
percent of the citations.
    As a point of comparison, the commenters also reviewed non-SST 
inspection records during the same period for the ten companies with 
the highest number of workplaces that have achieved VPP status (the 
``VPP top ten''). One of the requirements for VPP status is an injury 
and illness rate below the industry average.\11\ Thus, if injury and 
illness rates are an appropriate predictor of OSHA violations, one 
would expect the VPP top ten to have far better performance during OSHA 
inspections than the SST top ten. The difference should be even more 
pronounced, in fact, because inspections at the VPP top ten are often 
limited in scope--complaint inspections or records-only reviews--in 
contrast to the wall-to-wall SST inspections to which they are being 
compared. OSHA inspectors actually issued citations in the VPP 
inspections more often than in SST inspections: more than 49 percent of 
the time at the VPP top ten, compared to 45 percent of the time for the 
SST top ten. The average number of citations at the VPP top ten is very 
slightly lower: 1.57 citations per inspection, compared to 1.61 at the 
SST top ten. Less than eight percent of the VPP top ten citations were 
withdrawn, however, compared to more than 13 percent of the SST top ten 
citations. When withdrawn violation claims are disregarded, the 
citation rate at the VPP top ten is actually higher: 1.45 citations per 
inspection, compared to 1.40 per inspection for the SST top ten. 
Moreover, less than 25 percent of citations at the VPP top ten resulted 
in no penalty, compared to more than 40 percent for the SST top 
ten.\12\
    Notably, the Inspector General's report found little overlap 
between EEP offenders and employers targeted under the SST system: 
``Only 40 sampled EEP qualifying employers were also targeted under 
SST.''\13\ This further underscores the fact that the SST program is 
not effectively targeting high-risk employers. Given the universal 
recognition that OSHA has resource constraints and should focus its 
enforcement efforts on higher-risk worksites, we recommend that, in 
addition to better leveraging its resources through outreach and 
education efforts, the agency reallocate some of its enforcement 
resources from the SST program to EEP. We further recommend that the 
mission of the task force recommended by the Inspector General be 
expanded to include an examination of the agency's enforcement 
priorities and the effectiveness of its various programs so that 
enforcement resources can be most effectively deployed.

3. Use of Creative Enforcement and Settlement Tools
    The U.S. Chamber supports the Enhanced Enforcement Program's use of 
creative tools in the enforcement and settlement context to address 
likely hazards such as inspections of an employer's other facilities 
when EEP efforts identify a violation that, by its nature, is likely to 
be occurring at the employer's other facilities (e.g., an unguarded 
machine to which employees are directly exposed). Relatedly, we support 
the re-direction of resources away from repetitive inspections of 
different worksites of the same employer where there is no basis to 
believe such inspections will lead to the identification of serious, 
citable hazards.
    We also concur with the Inspector General's recommendations 
designed to ensure appropriate communication within the agency so that 
Area and Region Offices can coordinate their Enhanced Enforcement 
Program efforts for national or regional employers whose operations 
cross jurisdictional lines, and for better reconciliation of data in 
the IMIS system.
    We disagree, however, that the evidence presented in the Inspector 
General's report supports the conclusion that ``OSHA generally did not 
utilize enhanced settlement provisions effectively.''\14\ As an initial 
matter, the metric used to justify this finding was that enhanced 
settlement provisions were not included in 153 of 188 ``EEP qualifying 
cases''--which includes not only cases that OSHA properly designated as 
EEP, but also cases that the Inspector General believed should have 
been designated as EEP but were not.\15\ The report already contains a 
finding that OSHA did not properly designate certain cases that 
qualified for the EEP,\16\ so it should not include a separate finding 
that OSHA did not use enhanced settlement provisions in cases that OSHA 
did not believe were EEP--it naturally follows that OSHA would not 
include enhanced settlement provisions in such cases.
    More substantively, this finding is inappropriate because neither 
the 2003 nor the 2008 EEP programs require OSHA to include any of the 
listed enhanced settlement provisions. The 2003 EEP memorandum states 
that ``OSHA will consider including some or all of the following within 
the terms of the settlement agreement,''\17\ and the 2008 Directive 
states that ``OSHA shall include some or all of the following, or other 
appropriate settlement provisions, in the settlement agreement.''\18\ 
The fact that such provisions were not included in any particular 
settlement agreement may, of course, reflect the discretion of OSHA and 
Solicitor's Office personnel weighing each case on its merits--a one-
size-fits-all approach to settlement provisions is not appropriate in 
light of the varying facts of each situation. While we concur with the 
report's recommendation that enhanced settlement provisions should be 
listed in the informal settlement ``template'' as a reminder to 
enforcement and legal personnel, we caution against making any 
particular settlement provision mandatory and recommend that the region 
and area offices maintain their ability to exercise discretion given 
the individual nature of each worksite and each citation.

4. The Inspector General's Conclusions Regarding Workplace Fatalities
    Finally, I would like to address the implication of the Inspector 
General's report that subsequent fatalities at employers enrolled in 
the EEP or that, in the view of the Inspector General should have been 
enrolled in the EEP, were the result of lax enforcement.\19\ As OSHA 
indicated in its response, with which we concur, it is ``an 
inappropriate and unsupported assumption to suggest that a fatality did 
or did not occur because a given workplace did not receive an 
inspection.''\20\ Indeed, the Inspector General's report itself 
concedes, in its introduction, that ``we cannot conclude that enhanced 
enforcement would prevent subsequent fatalities[.]''\21\
    The report nonetheless repeatedly cites examples where there was a 
subsequent fatality at a worksite in the EEP or a worksite the 
Inspector General believed should have been in the EEP--but fails to 
state whether the subsequent fatality was caused by a similar 
violation, or for that matter, any OSHA violation at all.\22\ Without 
this information, it is improper to conclude that the subsequent 
fatality could have been prevented by additional OSHA activity--because 
the fatality could have been caused by an unforeseeable hazard, 
employee misconduct, natural causes, or something else beyond the 
control of the employer and beyond the enforcement authority of OSHA or 
ability of OSHA to prevent. We believe that the suggested task force 
could further examine issues like this in the context of evaluating and 
designing the most effective criteria for the EEP in the future.
    Thank you again for the opportunity to testify. I would be happy to 
respond to any questions you may have.

                                ENDNOTES

    \1\ U.S. Department of Labor, Office of Inspector General--Office 
of Audit, ``Employers With Reported Fatalities Were Not Always Properly 
Identified And Inspected Under OSHA's Enhanced Enforcement Program,'' 
Report No. 02-09-203-10-105 (Mar. 31, 2009) (``OIG Report''), 
Highlights.
    \2\ All About OSHA, http://www.osha.gov/Publications/3302-06N-2006-
English.html (last updated Jan. 23, 2009).
    \3\ http://www.osha.gov/as/opa/2008EnforcememtData120808.html (last 
updated Dec. 19, 2008).
    \4\ OIG Report at 15.
    \5\ OSHA Enforcement and Complaint Directive (CPL) 02-00-145, 
Enhanced Enforcement Program (effective Jan. 1, 2008).
    \6\ Memorandum for Donald G. Shalhoub, Deputy Assistant Secretary, 
Occupational Safety and Health Administration, from Richard E. Fairfax, 
Director, Directorate of Enforcement Programs (Mar. 19, 2009).
    \7\ Id.
    \8\ OIG Report at 15.
    \9\ OIG Report, Appendix E.
    \10\ A fuller discussion of this review appears in the Comments 
submitted by these organizations by letter from my law partner Baruch 
A. Fellner to the OSHA Docket Office for Docket No. C-08 (August 11, 
2004).
    \11\ See 68 Fed. Reg. 68475 (Dec. 8, 2003).
    \12\ This does not detract in any way from the achievements of VPP 
employers, which represent some of the safest and most exemplary 
workplaces in America. To the contrary, it shows that the employers 
being inspected under the SST are in many respects comparable.
    \13\ OIG Report at 7.
    \14\ OIG Report at 9-10.
    \15\ Id. (emphasis added).
    \16\ OIG Report at 4.
    \17\ Interim Implementation of OSHA's Enhanced Enforcement Program 
(EEP) (Sept. 30, 2003), http://www.osha.gov/pls/oshaweb/owadisp.show--
document?p--table=INTERPRETATIONS &p--id=24649 (emphasis added).
    \18\ OSHA Enforcement and Complaint Directive (CPL) 02-00-145, 
Enhanced Enforcement Program (effective Jan. 1, 2008) (emphasis added).
    \19\ OIG Report at 3, 15; OIG Ex. 1.
    \20\ OIG Report, App. E.
    \21\ OIG Report, Highlights.
    \22\ OIG Report at 5, 7-8, 9-10, 14-15; OIG Report, Ex. 1.
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Mr. Schwartz.
    Mr. Frumin?

STATEMENT OF ERIC FRUMIN, DIRECTOR OF HEALTH AND SAFETY, CHANGE 
                             TO WIN

    Mr. Frumin. Can you hear me okay?
    Good morning, Chairman Woolsey, Ranking Member Price, 
members of the Subcommittee. Thank you for the opportunity to 
testify today.
    On behalf of Change to Win, we greatly appreciate your 
leadership and interest in the serious problems confronting 
OSHA's enforcement program. These shortcomings endanger 
workers' lives, and the Congress has the power to help.
    Today we hear the testimony of Jesus Rojas. A year ago, you 
heard the testimony of Emmanuel Torres Gomez, whose father 
Eleazar died at the Cintas Corporation on the job in 2005.
    The conditions that Mr. Rojas has described are truly 
intolerable. If indeed Waste Management managers misled 
inspectors about the working conditions, they may well have 
committed the same felony interference in a federal 
investigation that just sent several McWane managers to prison 
for 3-5 years.
    Last April, we testified before a Senate subcommittee about 
patterns of violations at large companies like Waste Management 
and Cintas. Today I regret to report that a continuing pattern 
of violations at large corporations continues where they are 
ignoring or avoiding their obligations to assure a safe 
workplace.
    For instance, Cintas has finally acknowledged that they had 
65 facilities around the country that lacked the basic guarding 
equipment. ShawnLee has accumulated additional willful and 
repeat violations on construction sites for fall protection 
hazards. The manager and owners of the Agriprocessors plant in 
Iowa has been charged with major immigration, child labor and 
financial crimes.
    The top manager and dozens of supervisors at the notorious 
House of Raeford chicken plant in Greenville, South Carolina, 
has been indicted for violation of immigration-related labor 
violations, and federal investigators also found repeated cases 
of children working in House of Raeford's chicken plants. And, 
finally, Waste Management itself has incurred more serious 
lockout violations since Mr. Figueroa's death.
    The enforcement program, the EEP, was specifically 
established to deal with these flagrant repeated offenders. 
However, it is far too limited.
    Before discussing it in detail, we should look at two 
examples of the serious limitations in OSHA's overall 
enforcement program apart from those within the EEP. Some 
individual employers--in fact, some entire industries--have 
such disregard for their obligations that even the EEP is not 
enough.
    Since the huge 2005 explosion at the BP plant in Texas 
City, one supervisor and two contract workers have died in that 
facility, and two more contract workers died at BP's plant in 
Cherry Hill, Washington. Clearly, BP indicates that the EEP is 
not enough.
    Likewise, the continuing high death toll in the oil and gas 
drilling industry, which has one of the highest fatality rates 
in the country, demonstrates that flagrant and repeated 
violators persist at the level of entire industries as a whole. 
Not surprisingly, several drilling companies appear repeatedly 
on the IG's list of companies with repeat fatalities after EEP 
inspections. Wyoming, a major site for this industry, has the 
highest fatality rate in the country.
    This industry requires more than just EEP designation. It 
requires a national or a regional emphasis program, a very 
strong one. And in addition, OSHA should get on with issuing 
its industry-specific standards that it has been considering 
for 10 years.
    Now, let us look at the EEP itself. At the outset, the EEP 
was at best a weak response to the notorious McWane cases. It 
relied heavily on fatalities to trigger more enforcement.
    Even after the changes in 2008, it still lacks the proper 
focus on multiple severe workplace violations. And, as has been 
pointed out, OSHA's inspectors have indicated that they view 
the program as not catching the bad actors.
    The IG's investigation, therefore, was a very welcome 
review. But because it was limited to the scope of the EEP 
program, it is limited in terms of the kind of guidance that it 
can offer for where we can go from here.
    We need a systemic, holistic examination of the entire OSHA 
enforcement program designed in the era of giant corporations 
to find violations everywhere, not just at individual 
facilities.
    We need a new enforcement regime that has stronger criminal 
sanctions, cutting-edge enforcement capability and 
investigation capability, more national alerts, corporate 
reporting requirements to facilitate detection of serious 
problems, and additional resources. And we salute you for 
introducing the Protecting America's Workers Act.
    Finally, OSHA must----
    Chairwoman Woolsey. You are forgiven.
    Mr. Frumin [continuing]. OSHA must enhance responsible 
corporate performance. The act created the principle that 
employers are primarily responsible for safety on the job, not 
the government. And we believe that is an opportunity that must 
be pursued as well.
    Americans voted for real change in the last election. We 
believe that the Protecting America's Workers Act and Secretary 
Solis are committed to giving us that. And we are happy to work 
with you and the Department on that change.
    Thank you very much.
    [The statement of Mr. Frumin follows:]

   Prepared Statement of Eric Frumin, Health and Safety Coordinator, 
                             Change to Win

    Chairman Woolsey, Ranking Member Price, and members of the 
Subcommittee, thank you for the opportunity to testify today.
    I am Eric Frumin. I serve as the Health and Safety Coordinator for 
Change to Win, and have worked in this field for 35 years. Change to 
Win is a partnership of seven unions and six million workers, in a wide 
variety of industries, building a new movement of working people 
equipped to meet the challenges of the global economy in the 21st 
century and restore the American Dream: a paycheck that can support a 
family, affordable health care, a secure retirement and dignity on the 
job. The seven partner unions are: International Brotherhood of 
Teamsters, Laborers' International Union of North America, Service 
Employees International Union, UNITE HERE, United Brotherhood of 
Carpenters and Joiners of America, United Farm Workers of America, and 
United Food and Commercial Workers International Union.
    On behalf of Change to Win, we greatly appreciate the leadership of 
this Subcommittee in holding this hearing, and for your determined 
interest in the serious problems confronting workers, ethical 
employers, OSHA and others concerned with the severe gaps in OSHA's 
enforcement program. These shortcomings endanger workers' lives, and 
with Congress has the power to help.
Worse, Not Better
    Today we hear the testimony of Jesus Rojas, the son of Raul 
Figueroa, a mechanic at Waste Management, Inc. (WMI) who was killed by 
the hydraulic arm of the garbage truck he was repairing. A year ago, 
this subcommittee heard the testimony of Emmanuel Torres Gomez, the son 
of Eleazar Torres Gomez, a Cintas Corp. employee who died after 
becoming trapped in an industrial-sized clothes dryer. Their statements 
describe the anguish that their families have suffered at the hands of 
companies with extensive records of citations for life-threatening 
violations of well-established OSHA standards--companies that have been 
criticized by this Committee and the public for putting production (and 
profits) before safety.\1\
    The conditions Mr. Rojas has described are truly intolerable. If 
indeed WMI managers misled OSHA inspectors about the working conditions 
at the time of his father's death, OSHA should have investigated to 
determine whether their stories were true. If they lied, they may well 
have committed the same felony interference in a federal investigation 
that just sent several McWane managers to federal prison for 3-5 years, 
particularly if they colluded in that deception.
    Last April, Change to Win testified before your counterpart 
committee in the U.S. Senate about patterns of violations at WMI, 
Cintas Corp., the Agriprocessors meatpacking plant in Iowa, the scandal 
at the House of Raeford poultry plants in the Carolinas, and the 
construction sites in New England operated by Avalon Bay/ShawnLee/
National Carpentry. (That testimony is appended here.\2\ ) Today, I 
regret to report that there appears to be a growing pattern of large 
corporations ignoring or avoiding their obligations to assure a safe 
workplace.
    Sadly, since last spring:
     Cintas has now finally acknowledged that 65 of its 
automated laundries in federal jurisdiction lack the basic guarding 
essential to protecting their employees from tragedies such as the one 
that happened to Eleazar Torres Gomez.\3\ It has agreed to pay a nearly 
$3 million fine. But despite these acknowledgements, Cintas has still 
not recanted its callous position that Mr. Torres Gomez was responsible 
for his own death.
     ShawnLee has accumulated additional ``willful'' and 
``repeated'' violations for fall-protection hazards as recently as 
February 24, 2009.\4\
     Not long after this Committee reviewed the atrocious 
conditions at the Agriprocessors' infamous meatpacking plant in 
Postville, IA, the managers and owners of that plant were charged with 
major immigration and child-labor crimes, and more recently for 
financial crimes and violating U.S. Agriculture Department financial 
orders.\5\
     Despite its repeated denials of any wrong-doing, the top 
manager of the notorious House of Raeford chicken processing plant in 
Greenville, SC has been indicted for violations of immigration--related 
labor regulations, as have the Human Resource Manager and dozens of 
supervisors. As at Agriprocessors, Department of Homeland Security 
investigators also found repeated cases of children working in the 
House of Raeford's hazardous poultry environment--sparking demands for 
improved safety and child labor enforcement in North Carolina.\6\
     Finally, Waste Management has incurred more serious 
lockout violations since Mr. Figueroa's death.\7\
    The Enhanced Enforcement Program (EEP) was specifically established 
to deal with flagrant and repeated offenders such as these. However, as 
will be discussed below, the EEP is far too limited to accomplish its 
objectives.

The Problems Beyond EEP
    Before discussing the EEP itself in detail, we should look at two 
examples of the serious limitations in OSHA's enforcement regime apart 
from the limitations within the EEP.
    Indeed, some employers--and even some industries as a whole--have 
such disregard for their obligations that the EEP alone is not enough.
            BP Products North America: a corporate-level study in 
                    enforcement failure
    In February, 2005, OSHA properly designated the Texas City as an 
EEP site following its investigation of the multiple deaths there in 
late 2004. As the IG report notes, OSHA failed to pursue investigations 
at additional sites based on this incident. The huge explosion occurred 
a month after OSHA issued its citations in 2005--and though the 
incidents were not closely related, they reflected the abysmal state of 
the company's safety program in Texas City. OSHA then designated BP as 
an EEP and issued a National Alert. However, one supervisor and two 
contract workers have died at the Texas City facility in the three 
years since 2005. Two other contract workers died in 2005 and 2007 at 
the company's Cherry Hill, WA plant.\8\ Clearly, BP indicates that for 
some companies, the EEP alone is simply not enough to deter highly 
hazardous operations. Much more aggressive measures are required.
            The Oil/Gas Drilling Industry: an industry-wide study in 
                    enforcement failure
    The continuing high death toll in the oil and gas well drilling 
industry--which has one of the highest fatality rates of any industry 
sector--demonstrates that flagrant and repeated violators persist at 
the level of entire industries as a whole. In fact, in the most recent 
2-year period for which data is available (2006-07), this industry 
still accounts for two-thirds of ALL deaths in the ``mining'' industry 
(see attached BLS data). The number has increased by 30% compared to 
the prior three-year period. Compare that to the 43% decrease in coal 
mining in 2007 alone.
    Not surprisingly, several drilling companies appear repeatedly in 
the IG's report, including companies like Patterson-UTI, Nabors 
Industries and Premium Well Drilling which even had subsequent 
fatalities after the initial EEP inspection.
    And the major oil/gas drilling states--TX, LA, OK and WY--all 
suffered increases in their death tolls in 2007. Wyoming indeed has the 
highest fatality rate of any state in the Union. But notwithstanding 
these severe problems, OSHA Region VI reported a 24% reduction in the 
number of inspections in this industry.\9\
    The oil/gas drilling industry requires more than just EEP 
designation, such as a National or Regional Emphasis Program.
    Finally, when OSHA adopted the Process Safety Management Standard 
in 1992 to reduce refinery hazards, it created an exemption for this 
industry. In 1999, OSHA stated at the time that it was ``* * * 
currently determining whether to place this standard back on its 
rulemaking agenda.'' \10\ It is evident that this industry badly needs 
that additional regulation. More enforcement efforts alone are simply 
not enough.

The Problem With EEP: An Inadequate Enforcement Regime
    At the outset, the EEP was at best a weak response to the the 
notorious McWane cases that prompted the creation of the EEP program in 
the first place. Initially, it relied heavily on fatalities to trigger 
enforcement, rather than relying as much on severe violations as well. 
Even after the changes in 2008, by limiting itself to both willful/
repeat violations AND a recent history, it still lacks the proper focus 
on multiple, severe workplace hazards and violations.
    The EEP has also suffered from inadequate procedures for follow-up. 
It only requires one additional inspection at ``related'' sites within 
the same company within the same Region. Finally, OSHA made only meager 
efforts under the EEP to launch wide-scale investigations when 
confronted by serious problems in large companies. In six years, it has 
issued only nine National Alerts to focus the necessary attention on 
larger companies with flagrant violations.
    OSHA's inspectors have already noted the many problems with the 
design of the program. Enforcement Director Rich Fairfax recently 
stated: ``[W]e are still not targeting the `bad actors' the program is 
intended for.'' \11\
    The IG's investigation into the EEP Program, therefore, was a 
welcome review that highlighted many problems and demonstrated the need 
to focus on the goals of the program.\12\ However, because the IG's 
investigation was limited to the scope of the existing program, that 
report cannot provide comprehensive guidance on what is necessary to 
establish a program that will fully identify and effectively deter 
flagrant and repeated violators.
    What is needed is a more systemic, holistic examination of the 
current OSHA enforcement regime. In an era of giant corporate entities, 
OSHA is currently designed primarily to find violations at individual 
``establishments.'' OSHA usually takes such action only after 
fatalities occur, at which point willful, repeated, and egregious 
violations often prompt broad ``corporate-wide'' settlement agreements. 
While some of these settlement agreements have worked well, others have 
not. In any case, they were reactive responses to problems, not 
proactive approaches in keeping with the overall preventive purposes 
the Congress originally intended.

The Solution: 21st Century Enforcement Powers
    OSHA needs a new enforcement regime that includes stronger criminal 
sanctions, cutting-edge investigation capability and corporate 
reporting requirements to facilitate detection and follow-up, and 
sufficient additional resources to do the job. We need legislative 
reforms such as those in Protecting America's Workers Act and other 
legislation to close loopholes and give OSHA the new tools and 
resources it needs.
    Expanded Investigatory Capacity--It is vital that OSHA have the 
authority and the organizational tools to establish a national 
investigation program so it can identify dangerous conditions at an 
early stage when it can still intervene to prevent future deaths and 
serious injuries. In order to accomplish this goal, we urge Congress to 
make sure that OSHA has a 21st Century information system with the 
ability to track companies that operate under multiple names or in 
states with a separate state enforcement programs. OSHA also must make 
sure that corporate officers--and those who work for them--are as much 
the subjects of investigations as the front-line supervisors and 
workers who OSHA first interviews. This is especially important when 
investigations involve either severe violations, potential employer 
deception, or both.
    More National Alerts--The use of Regional or National 
investigations is necessary to create an effective deterrent to 
continued misconduct. As the IG has noted, in most cases the use of 
National Alerts were effective in greatly reducing and stopping deaths 
at the targeted companies. And if Regional or National Alerts are 
useful in the case of flagrant violators, then broader investigations 
of some kind should also be useful at companies with ``high-severity'' 
hazards--even if the cases do not involve the ``flagrant'' (i.e., 
repeat or willful) violations that trigger EEP cases.
    Corporate-wide Reporting--If OSHA inspectors are to undertake the 
aggressive follow-up envisioned by the EEP program, they must know the 
full scope of the companies with which they are dealing. Compliance 
officers cannot be limited to sending letters to the corporate 
headquarters merely requesting such information. Companies must be 
required to report their unified compliance information directly to 
OSHA on a regular basis, allowing OSHA to plan its enforcement 
investigations and actions with full knowledge of a company's 
operations. Corporate-wide information is also important for 
calculating penalties. The newly-issued Field Operations Manual 
specifically requires that an employer's past violations must be 
considered in any penalty calculations, even if those violations were 
issued by a state-administered program or against the same employer 
operating under a different name.
    Sufficient Resources--The failures identified in the IG report 
certainly do not diminish the dedication of career OSHA staff who are 
often fighting an uphill battle against these systematic abuses. OSHA 
staff simply cannot adequately perform with the current level of 
resources. In relation to the size of the workforce, the number of 
inspectors has dropped by more than 50% since its high-water mark at 
the end of the Carter Administration in 1980.\13\
    Stronger Criminal Sanctions--Higher monetary penalties are not 
enough. Even the landmark nearly $3 million civil penalty that Cintas 
has agreed to pay OSHA is less than one percent of its annual profits. 
The OSHAct currently authorizes criminal sanctions only in the case of 
fatalities resulting from a willful violation of a specific standard, 
and even that egregious misconduct is only a mere misdemeanor, 
punishable with a maximum six-month sentence. A violator faces more 
time in prison for killing a burro on federal land than a worker on the 
job. There must be stronger criminal sanctions in place.
    Enhancing Responsible Corporate Performance--In 1970, Congress 
established a basic principle: employers--not the government and not 
individual workers--have the primary responsibility to protect workers' 
lives on the job. Employers are obligated under law to provide workers 
with safe equipment and a healthy work environment. Employers have the 
additional obligation to maintain effective management systems to 
deliver that safety, and to hold managers accountable when they fail. 
Corporations have the infrastructure to know what equipment they 
operate, where it is, how it runs and whether or not they are 
committing the same or similar violations in multiple locations. 
Responsible employers already conduct their own ``follow-up'' 
inspections after OSHA finds a severe hazard. This should be an 
enforceable obligation for all companies.
    A comprehensive internal investigation and safety management system 
at Cintas might have saved the life of Eleazar Torres Gomez. WMI's OSHA 
violations increased by 28% over the period 2003-2007. If WMI had 
implemented a comprehensive safety program, and held it managers 
accountable, rather than allowing an increasing number of violations, 
Raul Figueroa might well be alive today.
    Enforcement after workers die is not really enforcement at all. We 
need real change.
    That is the change that America voted for last year, and we are 
more than willing to work with Congress, with responsible employers and 
with others to see that American workers receive that change. 
Fortunately, the Secretary of Labor has made it clear that she, too, 
wants real change, and we are delighted to support her efforts. We 
believe real change begins with the Protecting America's Workers Act, 
and it ends with workers having safe, healthy places to work.
    We appreciate the opportunity to testify, and will be happy to 
answer any questions.
    For further information, see:
    1.Testimony of Change to Win, Senate Subcomm. Employment and 
Workplace Safety, 4/1/08 at the following Internet address:

        http://help.senate.gov/Hearings/2008--04--01/Frumin.pdf

    2. Report by the National Commission of Inquiry into the Worker 
Health and Safety Crisis in the Solid Waste Industry--In Harm's Way: 
How Waste Management, Inc. Endangers the Sanitation Workers who Protect 
the Public's Health. Published April, 2008. http://www.teamster.org/
08news/nr--080325--1.asp.



                                ENDNOTES

    \1\ J. Bandler, ``House Panel to Examine Cintas Safety Record,'' 
Wall Street Journal, April 23, 2008 [``Workers told OSHA investigators 
they were `under a lot of pressure to keep everything going.' '']; OSHA 
Press release, Aug. 16, 2007 [``Plant management at the Cintas Tulsa 
laundry facility ignored safety and health rules that could have 
prevented the death of this employee,'' said Assistant Secretary of 
Labor for OSHA Edwin G. Foulke Jr.'']; OSHA Press Release, Oct. 31, 
2007 [`` `As a large, national employer with a history of OSHA 
inspections and citations for hazards at other facilities, we are 
disappointed to find so many of the same or similar hazards at this 
facility,' said Ken Atha, OSHA's area director in Mobile.'']; National 
Commission of Inquiry into the Worker Health and Safety Crisis in the 
Solid Waste Industry: In Harm's Way: How Waste Management, Inc. 
Endangers the Sanitation Workers who Protect the Public's Health. 
April, 2008.
    \2\ It is available also at: http://help.senate.gov/Hearings/
Hearings/2008--04--01/2008--04--01.html
    \3\ Addendum A, Stipulation and Agreement, Secretary of Labor vs. 
Cintas, Dec. 18, 2008.
    \4\ OSHA inspections 312589302 and 309560183.
    \5\ Grant Schulte, Rubashkin Hit With 99-Count Indictment, Des 
Moines Register, Jan. 17, 2009.
    \6\ Charlotte Observer, March 8, 2008, Feb. 17, 2009 and April 17, 
2009.
    \7\ OSHA inspections 311089510.
    \8\ Lise Olson and Tom Fowler, Costly Cleanup, Fines Have Failed To 
Halt BP Deaths,Houston Chronicle, Feb. 24, 2008. Olson and Fowler also 
noted that a total of 41 workers have died in the Texas City refinery 
``since the mid-1970's.''
    \9\ Alisa Stingley, Critic: Not Enough Government Oversight, 
Shreveport Times, Feb. 23, 2009.
    \10\ Richard Fairfax, Memorandum for Regional Administrators: PSM 
Applicability to Oil/Gas Production Facilities, Nov. 4, 1999.
    \11\ Memorandum for Donald G. Shaloub from Richard Fairfax, EEP End 
of Year Report, (FY2008), March 19, 2009. Found at: http://
thepumphandle.wordpress.com/2009/04/02/ig-slams-bushs-osha-twice-in-
one-day/#more-4664.
    \12\ US Department of Labor, Office of the Inspector General. 
Employers With Reported Fatalities Were Not Always Properly Identified 
And Inspected Under OSHA's Enhanced Enforcement Program, Report # 02-
09-203-10-105, Washington, DC., March 31, 2009. The IG limited its 
review to only three of OSHA's 11 regions. It was also limited to the 
time period after OSHA's mishandling of the notorious McWane cases that 
prompted the creation of the EEP in the first place.
    \13\ Center for American Progress Action Fund, Enforcing Change, 
January, 2009
                                 ______
                                 
    Chairwoman Woolsey. Thank you, Mr. Frumin.
    Mr. Lewis, I understand that OSHA has actually taken your 
recommendation seriously, and they have begun to form a task 
force to put some of your--if not all, but some of your 
recommendations into place based on your audit.
    What additional resources do you think OSHA--and I am going 
to ask this of you, too, Mr. Secretary, so--will OSHA need in 
order to fulfill your recommendations?
    Mr. Lewis. Madam Chair, we did not specifically study 
OSHA's resources and what would be needed. We can't say how 
many would be needed to address this.
    And it could also be a matter of the allocation or the 
utilization of the resources, not necessarily the total 
resources but how they are utilized. But we did not 
specifically look at what would be the resources required to do 
this.
    Chairwoman Woolsey. Did you look at any cause of why since 
2003, when EEP put into place, why there had been no follow up 
and review and----
    Mr. Lewis. What we heard--when the auditors were out doing 
the work, we did hear from folks in the field that resources 
were a problem.
    There were not enough resources to do all the things that 
OSHA was attempting to do. That is why I say it could be a 
matter of, you know, prioritization and allocation of resources 
as well as total resources.
    Chairwoman Woolsey. Okay. Thank you.
    Mr. Rojas, you testified that your stepfather had 
complained about safety problems at his job. Did they have a 
formal complaint system? Did they have a safety committee? And 
how did Waste Management respond to his complaints? Or 
concerns--it might not even be a complaint.
    Mr. Rojas. As far as I know, they had no specific committee 
within Waste Management to focus on those complaints. As I 
said, it was our belief--or was his belief--that the less money 
they spent on parts, the more bonuses the managers would get.
    So they really--the complaints were among the workers. And 
they could complain till they turned blue, but nothing ever 
changed.
    Chairwoman Woolsey. Was this an assumption the workers, or 
had they ever seen anything in writing that said, ``Dear 
Manager, Don't spend money on parts so you can have a bonus,'' 
in so many words?
    Mr. Rojas. Well, no, no one is ever going to say, ``I am 
not going to spend this much money on parts for you to fix the 
truck so I can get a bonus,'' and ``The less money that the 
company spends on certain assets, the more bonus that the 
manager gets.'' Because it would look as if they are managing 
their people in a correct way, when----
    Chairwoman Woolsey. And so it was like the practice, the 
actions they took or didn't take, actually, set in place----
    Mr. Rojas. Exactly.
    Chairwoman Woolsey [continuing]. What you----
    Mr. Rojas. I mean, no one--I don't think anyone would be--
--
    Chairwoman Woolsey [continuing]. The expectations.
    Mr. Rojas. I don't think anyone would step out and say, 
``Yeah, I am not going to give you this part because I want my 
bonus.''
    Chairwoman Woolsey. But you saw that--but your stepfather 
saw that in practice.
    Mr. Rojas. Yes. Yes, on a daily basis.
    Chairwoman Woolsey. Okay. Thank you so much.
    Mr. Frumin, certainly the employer bears the ultimate 
responsibility for an accident. We actually get witnesses here 
that tell us it is the employee's fault when they fall in a 
drying vat at Cintas. And they really believe it.
    Even if the employee does something that they shouldn't do, 
and an accident or an illness occurs, who is the ultimate 
responsible entity in that? I mean, well, let me ask a 
different way, because I know the answer I want. Isn't it the 
employer's ultimate responsibility?
    Mr. Frumin. The OSHA Act clearly places the overwhelming 
burden on the employer.
    Now, we would be naive to say that there are no situations 
in which the employee bears a substantial responsibility for 
some violation. And, in fact, the courts have recognized there 
is an employee misconduct offense. But it is a very narrow 
defense,----
    Chairwoman Woolsey. Yes.
    Mr. Frumin [continuing]. One that employers typically try 
to ignore when they blame workers. And we have seen case after 
case.
    The case of Mr. Torres Gomez is a sad but notorious one, 
where managers knew fully well about exactly how dangerous the 
situation was. They knew it for years. And they took little or 
no action to protect workers who were under tremendous 
pressure--pressure in the ways that Mr. Rojas has just 
described.
    So the employers have the responsibility. And it is 
unfortunate--it is worse than unfortunate--when managers, even 
CEOs, will blame workers rather than accepting their own 
responsibility. That is why we encourage you to keep tabs on 
those companies and let them know you expect them to be 
responsible.
    Chairwoman Woolsey. Thank you very much.
    Mr. Price?
    Dr. Price. Thank you, Madam Chair.
    I again want to thank the witnesses for their testimony.
    And, Mr. Rojas, again for your commitment to improving 
workplace safety, and our sympathy to you for your loss.
    Mr. Lewis, in reviewing the report, it appears to be that 
the criteria for an EEP qualifying case continues to be 
confusing and muddled. Would you describe what constitutes a 
qualifying case--an EEP qualifying case?
    Mr. Lewis. Well, under the current requirement that came 
into effect in 2008, there can be a number of ways you can 
qualify.
    One is that you have had a fatality inspection with one or 
more willful or repeated violation related to a death. You have 
fatality inspection with one or more serious violation related 
to a death, and the employer had an OSHA history of similar in-
kind violations within the last 3 years; a fatality inspection 
with one or more serious violation related to a death, and the 
employer had another fatality within the last 3 years.
    Dr. Price. Now, you are going through a very specific list. 
And I appreciate that. Is that to say that there is no 
confusion about what ought to be a qualifying case?
    Mr. Lewis. I agree. I think it is confusing.
    We found that there is perhaps some confusion over what 
counts for the history. It is confusing to me in terms of the 
fatalities. We have a problem with fatalities that are in 
state-plan states vs. federal-plan states that do or don't 
count towards this employer now being classified for enhanced 
enforcement.
    Dr. Price. So greater focus on that criteria might be 
helpful?
    Mr. Lewis. Yes. Yes. I think greater focus on the criteria, 
clarity on that, would be a big help.
    Dr. Price. Thank you.
    Mr. Schwartz, I was interested in some of the statistics 
that you cited--that .5 percent, \1/2\ of 1 percent, of 
workplace sites are reviewed by OSHA. Is that right?
    Mr. Schwartz. That is correct, Mr. Price.
    In the last year's inspection data that we have, there were 
almost 40,000 worksites that were inspected out of 7.2 million 
across the country--inspected by federal OSHA.
    Dr. Price. And, clearly, we can't review all of the 
worksites.
    Mr. Schwartz. That is right.
    Dr. Price. You alluded to the fact that we may not be 
focusing on the worst offenders. Would you expand on that?
    Mr. Schwartz. Absolutely.
    Mr. Price, the idea is that OSHA is spending the vast 
majority of its enforcement resources on the Site-Specific 
Targeting program. That program selects employers based upon 
their self-reported injury and illness rates. And what it tends 
to do is focus on employers who are overly conscientiousness in 
reporting minor sprains and strains in the workplace.
    The reason that I know that that is the case, and that the 
SST program is not in fact targeting the worst offenders, is 
because if you look at the citations that are produced--the 
citable violations that result after one of those wall-to-wall 
inspections--and you compare it to the number of violations 
that are cited when OSHA inspects one of its showcase Voluntary 
Protection Program workplaces, there is no material difference.
    So we know that these SST resources are being misdirected. 
And, frankly, the EEP resources ought to be increased, as I 
think pretty much every witness on this panel has indicated. 
There ought to be a focus on the worst of the worst, and there 
ought to be an objective look at who those employers really are 
so that they can be identified and the resources deployed 
appropriately.
    Dr. Price. Your sense about focusing on the worst of the 
worst, which sounds like it makes a whole lot of sense and 
ought to be the direction in which we head in order to truly 
decrease workplace injuries and deaths: Is there a specific way 
in which one ought to proceed to have OSHA do that in terms of 
their criteria?
    Mr. Schwartz. Here is what I would recommend, Mr. Price. I 
think there are a number of approaches that you can take.
    First, I think you need to start with a working group that 
includes all the stakeholders who have got the knowledge of 
this to try to figure it out.
    I think one area you can focus on are the repeat and the 
willful violations that relate to a death or a serious 
workplace injury.
    I think another area you can focus on is the employers that 
fail to abate after they have been cited for a violation.
    And then I think you also need to focus on the larger pool 
of employers who are not already captive in the OSHA inspection 
system but who truly may be the ones posing the highest risk.
    I mean, the problem with the current program is it tends to 
propagate on itself. It is looking to the people who have been 
inspected--who, as I said, are largely compliant employers with 
low-gravity injuries and illnesses--and it doesn't look to 
anybody that hasn't been looked at before.
    Dr. Price. Thank you.
    Chairwoman Woolsey. Mr. Hare?
    Mr. Hare. Thank you, Madam Chair.
    This is the second hearing that we have had about workplace 
safety. And the other day we had a woman here who testified 
that she lost her son. A lumber company modified a piece of 
equipment, and basically her son's shirt got caught in it, and 
it strangled him to death.
    We have heard about Cintas, the death where the company 
initially tried to tell the family that the man committed 
suicide. And when that didn't work, they said that he basically 
wasn't smart enough to operate the equipment. And then finally, 
I guess they decided they were going to back off those two 
completely dumb remarks.
    Today, Mr. Rojas comes and talks about his stepfather and 
what happens.
    I believe that the vast majority of the companies in this 
country want to do the right thing. But we have got companies 
like Cintas, like the company that your stepfather worked for, 
like the lumber company.
    And we have got to do something to make sure that these 
folks--in Cintas's case, the $2.8 million fine. They paid a 
fine, and they just whistle as they leave.
    And as you said, Mr. Frumin, they still haven't cleaned up 
their act. And they are not going to. Because it is cheaper for 
them to pay the fine, evidently, than it is to keep people from 
dying.
    You know, one of the charts that was held up the other day 
said accidents are going down. But yet the very woman who 
testified about her son said that not too long after his death, 
a young man had his leg literally torn off and that the company 
didn't have to report it.
    So the charts--my charts--are the pictures of the workers 
who have been killed and maimed. And we have got to put an end 
to this.
    And what I would like to know from maybe anybody on the 
panel--Mr. Rojas, I want to ask you first, I am sorry. What 
kind of a fine did you say was levied on the company for your 
stepfather's death?
    Mr. Rojas. I don't know the specific fine that it was. I do 
know there were two different fines for safety totaling between 
$9,000 and $10,0000.
    Mr. Hare. $9,000?
    Mr. Rojas. Yes.
    Mr. Hare. So they were willfully negligent in the death of 
your stepfather, and it cost them a whopping $9,000?
    Mr. Rojas. Correct.
    Mr. Hare. And you said that your mother got enough from his 
life insurance to be able to pay off her house?
    Mr. Rojas. That is correct.
    Mr. Hare. Did the company do anything to help your family? 
Did they come over? Did they send anybody over to try to help, 
you know, you and your family, your mother, with any other 
additional things and walk them through the process?
    Mr. Rojas. At the beginning, when everything happened, the 
company did send some representatives out to her home.
    They sent a flower arrangement to the funeral. And I think 
they put up I believe it was $9,000 for the funeral 
arrangements. That is about it.
    Mr. Hare. And do you know if they have made any changes at 
that company since, to make it safer?
    Mr. Rojas. I know there have been meetings in the mornings. 
Serious changes, I don't believe there have been, no.
    Mr. Hare. That is not surprising.
    Mr. Frumin, what do we do with companies that just 
literally think that the law or the fine is just okay and 
continue to operate, like Cintas and these companies? What do 
we do to take those companies, and not--look, and I am not 
saying we go after the people that are doing what they are 
supposed to be doing every day.
    But I am talking about--isn't there a moral obligation we 
have to allow workers to be able to go to work and come home 
safe with their families? So what do we do with companies like 
Cintas and other companies--this lumber company, the company 
that Mr. Rojas's stepfather worked at--that just don't seem to 
care?
    Mr. Frumin. Well, accountability is a very critical aspect 
of this entire issue. And right now the required amount of 
accountability within American companies on health and safety 
is pretty low.
    At the individual establishment level, OSHA does 
inspections, and either finds violations or not. And Mr. 
Schwartz has talked about some of the variation there.
    But how about above the level of the company, the people 
who tell the managers what to do, who set the performance 
goals, who push the production requirements, who create the 
pressures that Mr. Rojas has talked about?
    Mr. Hare. You think people ought to go to jail?
    Mr. Frumin. When CEOs----
    Mr. Hare. I do. I am just wondering if you would agree with 
that.
    Mr. Frumin. When CEOs ignore their responsibility, they 
don't hold people accountable, as was the situation at McWane 
and we believe at Cintas then, they ought to face those same 
penalties. The PAWA would do that.
    But we have got to create a system in this country where 
corporate structures are enforced on health and safety, not 
just on profits.
    Mr. Hare. Thank you, Madam Chair.
    Chairwoman Woolsey. And now, Mr. McKeon, the Ranking Member 
of the Education and Labor Committee?
    Mr. McKeon. Thank you, Madam Chair.
    Mr. Lewis, I want to be sure the record is clear with 
respect to OSHA's role in reviewing its Enhanced Enforcement 
Program.
    It was suggested earlier that the agency decided to 
constitute a task force only in response to the IG's audit and 
report. But isn't it true that in fact the agency had decided 
on its own in 2008 to review the EEP and had planned to convene 
a task force to consider changes but held off on that task 
force pending completion of the IG's report.
    Mr. Lewis. Correct. That is our understanding with OSHA 
that they were starting to look at this at the time we 
announced our audit.
    Mr. McKeon. Okay. I just wanted to make that clarification 
in the record.
    Chairwoman Woolsey. Thank you.
    Mr. McKeon. This is really a serious subject. I think when 
we are talking about worker safety, workers that have very 
serious accidents, have injuries such as Mr. Hare noted, or 
death, this is something I think that we are all very, very 
concerned about.
    And I think we have to be overly careful that we don't 
politicize this issue, that we are careful about how we attack 
companies that are involved. I think the overall purpose of 
OSHA is to protect people in the workplace. And when we have--I 
think it has been suggested earlier that the overwhelming 
majority of all companies have this same concern.
    There are some bad actors. We know that. And it seems to me 
that, as has been stated in your testimonies, those are the 
companies that we should be going after.
    The idea of going in and--I think, as Mr. Schwartz 
suggested in his testimony, that the companies that are trying 
to do well and make these reports, and then they are the ones 
that are followed up and visited. And perhaps OSHA then can 
say, ``Well, look at the job we are doing,'' but not going 
after the companies that have repeated offenses.
    And I think, some way, that would be the best thing that we 
could be doing is going after companies that have shown a 
disregard for when OSHA has come in, or for the safety of their 
employees. And when they have one offense after another, those 
are the things that seems like we should be really talking 
about.
    I know something came up in the testimony yesterday. And I 
wasn't here, but I heard about the testimony. And I was a 
little bit upset because I know the gentleman from Illinois is 
my good friend, and probably I think went a little bit 
overboard, and then mentioned Cintas again today.
    I met with some of the people from Cintas yesterday. And 
they are going to put a statement into the record that will 
clarify what happened, the incident that was referred to. And I 
think from what has been said--and even from what you said 
today, Mr. Hare--that would indicate that the company has 
little regard for their employees.
    There was a serious tragic accident where an employee lost 
his life. And they have made a great deal of change in their 
operation to prevent that from further happening. And I think 
that is the result that we should be looking for. And I think 
that we could all agree to that.
    And if something comes of OSHA's looking into this and 
going after this Enhanced Enforcement Program, seems to me that 
that would be a very beneficial way to move forward.
    Do you agree with me on that? Is that something that you 
would feel would be a good improvement on this program? 
Anybody?
    Mr. Frumin. Mr. McKeon, I would agree with you that a very 
thoughtful, well-informed targeting program is necessary to 
make sure that OSHA finds out who the bad actors are.
    And right now, that system doesn't exist. That information 
system doesn't exist.
    OSHA is operating at a very archaic information system. We 
have very sophisticated information systems in companies in 
corporate structures today that OSHA has little or no access 
to.
    And Mr. Hare's legislation would help remedy that, but it 
would go part of the way.
    I would differ with you, though, that the outcome at Cintas 
is something that we could applaud because----
    Mr. McKeon. Did I say applaud?
    Mr. Frumin. Well, you said that was an example of something 
we would approve of, or--you described it in a beneficial way.
    Mr. McKeon. What I said was that the company had made 
extensive changes to preclude that type of an accident 
happening in the future.
    Mr. Frumin. And if they had actually been caught by 
surprise in that incident, one could salute their quick 
reaction in that way.
    Unfortunately, senior corporate officers knew years in 
advance that that very hazard was a problem in the company, and 
they virtually predicted that it would happen.
    Well, where was the deterrence to remind them that they had 
to act on that knowledge? There was no deterrence. We don't 
have that ability now to stop companies from ignoring problems 
like Cintas----
    Mr. McKeon. I guess probably rather than focusing on it, I 
look at--Madam Chair, he went a little long on his answer. I 
would like to hear Mr. Schwartz----
    Chairwoman Woolsey. Well, no, I am sorry, Mr. McKeon. But 
we can go back around if you would like after we go through 
this series.
    Mr. McKeon. Maybe then when it comes back around I will not 
be here.
    But maybe, Mr. Price, if you could give Mr. Schwartz----
    Chairwoman Woolsey. Okay. Thank you.
    Mr. McKeon [continuing]. A chance to respond to that, I 
would appreciate.
    Chairwoman Woolsey. Mr. Payne?
    Mr. McKeon. Thank you.
    Chairwoman Woolsey. Thank you.
    Mr. Payne. Thank you, very much.
    And thank you, Madam Chair, for calling this important 
hearing and to stay on the whole issue of occupational safety.
    As we have seen in the past several years, the safety of 
employees continued to decline. A number of deaths last year, 2 
years ago--window washers in New York, several deaths in the 
course of several months. It is just that the safety of the 
employed has been compromised.
    I just would like to ask Mr. Frumin--and I appreciate you 
attending the hearing in Linden, where we had the Cintas case 
where two employees unfortunately lost their lives, and--was it 
one or two?--but that they were blamed for the death. And the 
company was initially very insensitive to the situation.
    But I wonder, Mr. Frumin, in the Cintas case, it is my 
understanding that the company agreed to pay a substantial fine 
but that its citations were downgraded to unclassified.
    And so can you tell us the significance of an unclassified 
citation, particularly if another worker is killed or seriously 
injured at a Cintas facility?
    Mr. Frumin. Thank you, Mr. Payne.
    Unclassified violations have become, unfortunately, pretty 
popular in a larger number of high-visibility settlements. And 
what they do is make it difficult for OSHA to consider the 
severity of that violation in future cases.
    We know, for instance, that further action against the 
company might require a willful violation. And yet if it is 
unclassified, well, then there is no willful violation.
    So it creates a difficulty in proceeding aggressively with 
those same companies. And I think that is one of the reasons 
the companies work so very hard to secure them in their 
settlement negotiations.
    Mr. Payne. Also, there was an Inspector General's--I don't 
know if anyone mentioned it; I have been in and out--report, 
assessment. And I wonder if you agree with the Inspector 
General's assessment that the 2008 revisions were detrimental 
to the program. And if not, could you please explain why, Mr. 
Frumin?
    Mr. Frumin. Well, the 2008 changes were actually quite good 
in some ways because it relieved some of the pressure on the 
inspectors to find fatalities as a basis for going forward. And 
it also allowed the program to focus on larger employers with 
multiple sites.
    The prior program was finding fatalities and finding them, 
in many cases, at individual sites in the construction industry 
and others. So a program which is designed to look at multiple 
sites and create a deterrence and stop companies from creating 
the same violation over and over again should focus on multi-
site companies.
    But having said that, it is still an incomplete program. 
And we have called today for a comprehensive review of it. We 
are glad to hear that the Labor Department is, in fact, 
undergoing such a review.
    And I think the limitations that the government was 
operating under in 2008 were such that they were never going to 
be able to fix it properly. The time to fix it is now.
    Mr. Payne. Have any of you found whether the new 
administration has been able to increase--I don't know, I 
guess, Mr. Lewis, you must be representative of the government. 
Have there been an increase in employment, or is it just the 
first 100 days a little bit too soon to have an assessment of 
what is going on in OSHA?
    We did see a sort of a lessening during the past 8 years, 
it appeared to me, of even weakening in NLRB and OSHA reform.
    Oh, my time is up. So, quickly, I guess the question is 
have you seen the new administration move into the area of this 
OSHA yet?
    Mr. Lewis. All right. Simply because--I don't know the 
answer to that, simply because OSHA has not responded to us yet 
to the final audit report. It will be the end of March before 
we hear their response to the final recommendations we had. So 
they may very well be moving on that, and I am just not aware 
of it.
    Chairwoman Woolsey. Thank you.
    Ms. Shea-Porter?
    Ms. Shea-Porter. Thank you.
    Mr. Rojas, I am sorry about what happened. And I will tell 
you that this is the second time this week I heard about 
flowers coming. And it is incredibly disturbing.
    And I will say that the hearing that we had the other day 
said that actually it has gotten so bad that if you really want 
to make a company pay for the damage that they have done, you 
should look at the EPA rules because they are tougher than the 
OSHA rules for loss of human life. And that is just astounding. 
That has to change.
    I had one question, Mr. Lewis, and that had to do with OSHA 
not following up on the majority of cases. What, if anything, 
can we do to make sure the company eliminates the hazards. I 
mean, how do you know if they have eliminated the hazards, and 
if they are now in compliance, if they don't have the follow 
up?
    Mr. Lewis. Well, I think that is exactly the point. Without 
the follow up, you don't know, if you haven't verified that 
things have been corrected.
    Ms. Shea-Porter. Okay. So that is exactly----
    Mr. Lewis. Yes.
    Ms. Shea-Porter [continuing]. The crux of the problem here, 
that they can go another round, and another round, because we 
can't and don't follow up.
    Mr. Lewis. Right.
    Ms. Shea-Porter. Thank you.
    And at this point, I would like to yield the remainder of 
my time to Congressman Hare.
    Mr. Hare. I thank my friend from New Hampshire.
    I have tremendous respect for the Ranking Member. But I 
feel compelled to respond. He said he was disappointed in what 
I had to say the other day regarding Cintas, and he met with 
the executives of Cintas.
    Let me just say for the record, Madam Chair, we met with 
the workers from Cintas. And if the companies calls cleaning up 
their act of 46 violations that they have been cited for for 
the very same thing that killed this man, I would have to say 
that I would thoroughly disagree with the Ranking Member. When 
15 states that Cintas currently has plans in have not been--
this problem has not been addressed as we sit here today.
    When the workers came and testified here at this very 
hearing, the Cintas executives that met with McKeon were 
invited, but they went on the company picnic. They sent their 
legal counsel to sit and take very good notes in the back row.
    The bottom line here, this is a company that has been 
fined--you know, I didn't make the numbers up--$2.8 million. 
And the treatment of the family of this worker, to me, is 
reprehensible.
    Now, they haven't met with me at my office. I would be 
happy to have them come in. But I have got a feeling I am not 
going to get a phone call from them.
    But I think they owe an explanation. And I would be more 
than willing to sit down and ask them why--46 worth of 
violations. They are branded as one of the single biggest 
violators of worker safety in the nation.
    So they can crow all they want to about how they are 
protecting their workers. But one of the workers told me--and 
then I will yield back my time to my friend--that they were 
told on this conveyor belt if it got stuck to jump up and down 
on it until it became unstuck. And if they didn't do it, they 
would be looking for another job.
    The fact of the matter is, if that is corporate 
responsibility, then I don't know what the real definition of 
that is.
    But I would just say, Mr. Frumin, in our second go-around, 
I am anxious to hear your result. But, again, I say this for 
the record because we had an opportunity to meet with these 
people. Facts are facts, and I am glad that they took the time 
to meet with the Ranking Member, who I consider a friend.
    But I could not be in stronger disagreement with him on 
whether or not this company has in fact made an effort to clean 
up their act. I am still waiting for the other 15 states.
    More importantly, I am waiting for word that one of the 
workers is going to be harmed again at one of these places for 
their haven't done it. And when they are fined, you can just 
bet the bank that these guys are going to go right along their 
merry little way, pay the fine, and wait for another person to 
be harmed.
    And I thank my friend for yielding.
    Chairwoman Woolsey. Mr. Bishop?
    Mr. Bishop. Thank you, Madam Chair. I am sorry I have 
arrived late.
    Let me just stay on the Cintas issue that Mr. Hare was just 
speaking about. We had a series of hearings last year with 
respect to Cintas. And it became clear as a result of those 
hearings that they knew years earlier about the severe danger 
to their workers that was presented by some of their workplace 
conditions.
    And it was in fact those dangers that eventually killed 
Eleazar Gomez, and it did trigger an EEP investigation. But to 
date, Cintas has done really very little to fix the problems.
    Isn't this the kind--there was a case in New York that was 
identical to the case in Oklahoma. The case in Oklahoma was 
addressed in some measure, but there was no addressing the 
situation in New York.
    And shouldn't we have a mechanism that would allow the 
existence of a condition in one component of a company that 
when there is a complaint filed about that condition in a 
particular site that there also would be an investigation of 
other sites and the remediation of that condition in other 
sites, not just in the site that created a tragedy?
    Mr. Lewis, I will put this question to you.
    Mr. Lewis. Yes. And that is one of the points that we 
brought out in our report: first identifying that and making it 
known to nationwide, and doing the inspections, particularly in 
the related worksites. So, yes, you are exactly correct in 
that.
    Mr. Bishop. It just seems so painfully obvious that we must 
have a mechanism that addresses problems that exist throughout 
a corporate structure.
    Mr. Frumin, did you want to comment?
    Mr. Frumin. The case in New York is instructive, because 
even though it dealt with many of the same hazards that 
eventually killed Mr. Torres Gomez in Oklahoma, it would not 
have been considered an EEP case. It was a serious violation, 
and unfortunately at the time the Labor Department was not, 
OSHA was not, aware of the extent of that hazard throughout the 
company. They only became aware of it, I believe, after the 
fatality.
    So your point about individual incidents triggering a broad 
look is very well taken. And if the company had acted on its 
knowledge, if OSHA had been provided with the information and 
asked them to act broadly, Cintas might have done what its 
competitors were already doing. It is not like they were being 
asked to do anything different than the rest of the industry.
    Their competitors were already installing this equipment. 
And, you know, we wouldn't have had millions of dollars in 
penalties and legal fees and hearings on it. People would have 
been protected.
    So we need that kind of trigger, and we need it at a lower 
level than the EEP program currently provides.
    Mr. Bishop. Thank you very much.
    Madam Chair, I yield back.
    Chairwoman Woolsey. Thank you very much.
    Thank you, panel. You were wonderful.
    We are going to bring our Secretary up now. And hopefully 
before we vote, we can hear him and not interrupt everything so 
badly.
    Mr. Secretary, I don't have to explain the lighting system 
to you. But welcome.
    Jordan Barab is the Acting Assistant Cecretary for the 
Occupational Health and Safety Administration. He served most 
recently as a senior policy advisor for the Education and Labor 
Committee. We were really fortunate to have his expertise.
    Jordan was the Special Assistant to the Assistant Director 
of Labor for OSHA from 1998-2001 and directed the Safety and 
Health Program for the American Federation of State, County and 
Municipal Employees from 1982 to 1998. He graduated from 
Claremont McKenna College in California and received a master's 
degree in international relations from the Johns Hopkins 
University. Welcome.

 STATEMENT OF JORDAN BARAB, ACTING ASSISTANT LABOR SECRETARY, 
         OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION

    Mr. Barab. Thank you, Madam Chairman.
    Madam Chairman, Mr. Price, members of the Subcommittee, 
before I begin, I just want to say a few words to Mr. Rojas.
    First, I am very sorry for your loss. The type of 
conditions that you describe in your stepfather's workplace, 
the attitude of putting speed in production before safety and 
not listening to the health and safety concerns workers raise--
these are the type of things that this administration will not 
tolerate.
    We are not only sending a strong message to employers who 
cut corners on safety, but because OSHA can't be everywhere all 
the time, we also need to work much harder to make sure that 
workers have the tools they need to ensure that their 
workplaces are safe and that OSHA is there to make sure that 
that happens.
    I want to thank you for coming here today.
    Madam Chairman, thank you very much for this opportunity to 
discuss the Occupational Safety and Health Administration's 
Enhanced Enforcement Program and to respond to the concerns 
expressed by the Department of Labor's Office of Inspector 
General in it March 31st report.
    President Obama and Secretary of Labor Hilda Solis have 
both publicly expressed their desire that OSHA be more vigorous 
in protecting the nation's workers. OSHA employs some of the 
most dedicated and hardest working employees in the federal 
government, and under the leadership of Secretary Solis, they 
are inspired and eager to do their jobs of protecting the 
American workforce. I intend to help lead this agency in 
achieving that goal.
    Despite the brevity of my tenure at OSHA, I have had time 
to fully review and analyze the OIG's report. I do agree with 
the recommendations in the report, and both agency staff and I 
share the concerns of the report.
    Properly identifying employers who should be subject to EEP 
is essential. Similarly, it is not acceptable to fail to follow 
through with inspections or enhanced settlement agreements with 
employers that OSHA has placed on the EEP.
    OSHA's targeted inspection efforts consist primarily of a 
Site-Specific Targeting system that focuses on establishments 
with high injury and illness rates and both Local and National 
Emphasis Programs. The Enhanced Enforcement Program was 
designed to supplement to these programs and to focus 
enforcement efforts on recalcitrant employers.
    The EEP was initiated in September 2003 to help OSHA focus 
its resources on those employers who were indifferent to their 
obligations under the OSH Act, concentrating limited 
enforcement assets on employers who not only failed to meet 
their obligations under the OSH Act but who also appeared 
unlikely to decide on their own to improve working conditions 
at their workplaces.
    OSHA had discovered that a number of employers continued to 
expose workers to very serious dangers even after having 
received OSHA citations for worker exposure to hazards that 
caused serious injuries and fatalities. Such was in the case at 
McWane facilities as reported the New York Times and Frontline 
in 2003.
    In 2008, the EEP was amended in response to OSHA staff 
concerns that the program was not consistently accomplishing 
its purpose to focus on recalcitrant employers. However, it 
soon became clear that additional program modifications would 
be needed to better direct resources and that more stringent 
follow-up inspection criteria needed to be added to the 
program.
    OSHA staff began revisions in March of 2008 and was in the 
process of developing those revisions prior to the OIG 
evaluation.
    Obviously, in order for the EEP to be effective, OSHA area, 
regional, and national offices must accurately identify which 
employers are in need of enhanced enforcement and then apply 
its enhanced enforcement tools to these recalcitrant employers. 
The OIG report pointed out that this has not always occurred.
    I assure you that OSHA is already hard at work rectifying 
the weaknesses in the OIG report. The agency has established a 
task force to revise the EEP which will design a new program, 
which we are preliminarily renaming the Severe Violators 
Inspection Program, which will be a comprehensive revision of 
the existing EEP.
    Although the details are still being worked out, the new 
program will ensure that recalcitrant employers not meeting 
their obligations under the OSH Act are targeted for additional 
enforcement action, and will focus more on large companies and 
less on small businesses.
    Some changes under consideration for the program include 
mandatory--not recommended--follow-up inspections, more 
inspections of other establishments of an identified company, 
and additional enhanced settlement provisions. The new program 
will include a more intensive examination of the employer's 
history for systemic problems that would trigger additional 
mandatory inspections.
    And the new program would undergo continual review, and 
improvements will be made while deficiencies are identified. I 
believe that this new program will address each of the six OIG 
recommendations.
    I want to emphasize that while the OIG report identified 
serious problems within the EEP, the EEP process also made OSHA 
more aware of criminal violations. Referrals of potentially 
criminal willful violations to the Department of Justice for 
prosecution increased from 6 per year from 1993-2003 to 12 
cases in fiscal year 2008.
    Although the EEP is an important component of OSHA's 
overall compliance strategy, it is not the only enforcement 
tool that we utilize, nor is it the main tool that OSHA 
utilizes. OSHA's main inspection strategy focuses primarily on 
its LEPs and NEPs, as well as the Site-Specific Targeting 
Program for the vast majority of its enforcement work.
    Currently there are NEPs focusing on the hazards of 
combustible dust, amputations, lead, shipbreaking, crystalline 
silica, and trenching and excavation. We are also finalizing 
the NEP program on flavoring chemicals.
    Thank you, Madam Chairman. And I would be glad to answer 
any questions.
    [The statement of Mr. Barab follows:]

  Prepared Statement of Jordan Barab, Acting Assistant Secretary for 
        Occupational Safety and Health, U.S. Department of Labor

    Madam Chairman, Members of the Subcommittee, thank you for this 
opportunity to discuss the Occupational Safety and Health 
Administration's (OSHA) Enhanced Enforcement Program (EEP) and to 
respond to the concerns expressed by the Department of Labor's Office 
of Inspector General (OIG) in a report entitled ``Employers with 
Reported Fatalities Were Not Always Properly Identified and Inspected 
Under OSHA's Enhanced Enforcement Program'' (March 31, 2009). As you 
know, I have recently assumed the positions of Deputy Assistant 
Secretary of Labor for Occupational Safety and Health and Acting 
Assistant Secretary.
    Until the Assistant Secretary is confirmed by the Senate, the 
Secretary has asked me to help provide the leadership, utilize the 
resources, and establish policies that enable OSHA's employees to do 
their jobs. I am very proud to join this organization. President Obama 
and Secretary of Labor Hilda Solis have both publicly expressed their 
desire that OSHA be more vigorous in protecting the Nation's workers. 
OSHA employs some of the most dedicated and hardest working employees 
in the federal government, and under the leadership of Secretary Solis 
they are inspired and eager to do their jobs of protecting the American 
workforce. I intend to begin the process of leading this agency in 
achieving that goal.
    Because of the brevity of my tenure at OSHA, I have had limited 
time to fully review and analyze the OIG's report. OSHA responded 
preliminarily to the OIG in a Memorandum of March 30, 2009, and is in 
the process of thoroughly reviewing the report in order to determine 
the best ways to address each recommendation. OSHA shares the concerns 
raised in the report, and believes that properly identifying employers 
who should be subject to EEP is essential. Similarly, it is not 
acceptable to fail to follow through with inspections or enhanced 
settlement agreements with employers OSHA has placed in the EEP.
    As background, OSHA's targeted inspection efforts consist primarily 
of a Site Specific Targeting system that focuses on establishments with 
high injury and illness rates and both Local and National Emphasis 
Programs (LEPs and NEPs). The emphasis programs focus on industries 
with high injury, illness, or fatality rates, or on hazards such as 
lead, silica, or amputations. The Enhanced Enforcement Program was 
designed as a supplement to these programs to focus enforcement efforts 
on recalcitrant employers. OSHA is exploring ways to reinvigorate the 
EEP, and the OIG report provides a starting point for our efforts to do 
this in the most effective way.
    The authors of the Occupational Safety and Health Act (OSH Act) 39 
years ago were far-sighted in providing enough flexibility in the law 
for the agency to innovate as it encounters tough enforcement cases. 
The EEP was initiated in September 2003 to help OSHA focus its 
resources on those employers who are indifferent to their obligations 
under the OSH Act, concentrating limited enforcement assets on those 
employers who not only failed to meet their obligations under the OSH 
Act, but who also appeared unlikely to decide on their own to improve 
working conditions at their workplaces. OSHA had discovered that a 
number of employers continued to expose workers to very serious dangers 
even after receiving OSHA citations for worker exposure to hazards that 
caused serious injuries and fatalities. Such was the case at the McWane 
facilities as reported by the New York Times and Frontline in 2003. 
Employers like McWayne had multiple worksites where related hazards 
existed and OSHA's existing targeting system did not provide a 
mechanism to enforce the OSH Act at these additional establishments.
    In 2008, the EEP was amended in response to OSHA staff concerns 
that the program was not consistently accomplishing its purpose to 
focus on recalcitrant employers. A history filter for a serious 
violation related to a fatality was added to eliminate numerous small 
employers who should not have been added to the program as originally 
envisioned. In this situation, the employer must have, within the prior 
three years, a history of violations similar to the EEP violation. 
However, it soon became clear that additional program modifications 
would be needed to better direct resources and that more stringent 
follow-up inspection criteria needed to be added to the program. As 
such, OSHA began revisions in March of 2008, and was in the process of 
developing these revisions prior to the OIG evaluation.
    Under the current EEP, it is standard protocol for OSHA to mail an 
information copy of all citations under the EEP to the employer's 
national headquarters if there is more than one worksite, thus ensuring 
that national headquarters is aware of safety and health problems at 
the local establishment. An employer identified as being a recalcitrant 
employer can also be targeted for additional enforcement action as 
follows:
     OSHA can conduct enhanced follow-up inspections to ensure 
not only that the violations that had been cited were corrected, but 
also to check on whether the employer is addressing other similar 
hazards throughout its facilities. One way this occurs is to identify 
establishments on the current Site-Specific Targeting (SST) lists 
belonging to employers that are enhanced enforcement targets. These 
establishments will receive a higher inspection priority by being 
placed in the SST's current inspection cycle.
     OSHA and its attorneys can negotiate to include more 
stringent provisions in settlements of EEP citations than those it 
might insist on otherwise.
     Finally, under section 11(b) of the OSH Act, DOL attorneys 
can, if necessary, obtain enforcement orders, and then seek to hold 
employers in contempt of those orders if the employers continue to fail 
to abate hazards or implement other provisions in citations, 
settlements, or orders of the Occupational Safety and Health Review 
Commission and Federal courts. Potential sanctions for contempt include 
daily penalties and other fines, incarceration of an individual company 
officer who flouts the court's order, as well as any other sanction 
that the court deems necessary to secure compliance.
    Obviously, in order for the EEP to be effective, OSHA Area, 
Regional, and National Offices must accurately identify which employers 
are in need of enhanced enforcement and then apply its enhanced 
enforcement tools to these recalcitrant employers. The OIG report 
pointed out that this has not always occurred.
    OSHA is already hard at work; revisions to the EEP were underway 
prior to the OIG report. Furthermore, consistent with the report's 
recommendations, the agency has established the EEP Revision Task 
Force. This task force, comprised of personnel from the Directorate of 
Enforcement Programs as well as Regional Administrators, their 
Deputies, and Departmental attorneys, is designing a new program, which 
we are preliminarily renaming the Severe Violators Inspection Program 
(SVIP), so that we will be able to identify and inspect recalcitrant 
employers more effectively. The SVIP will be a comprehensive revision 
of the existing EEP, focusing more on large companies and less on small 
businesses. Although the details are still being worked out, the new 
program will ensure that recalcitrant employers not meeting their 
obligations under the OSH Act are targeted for additional enforcement 
action.
    Some changes under consideration for the program include 
mandatory--not recommended--follow-up inspections, more inspections of 
other establishments of an identified company, and additional enhanced 
settlement provisions. The new program will include a more intensive 
examination of an employer's history for systemic problems that would 
trigger additional mandatory inspections. OSHA believes that this new 
program will address each of the six OIG recommendations. OSHA is happy 
to share the revised Directive implementing the new program with the 
subcommittee once it is publicly released.
    Finally, the new program will undergo continual review by field and 
headquarters staff in order to make ongoing improvements. Again, we 
will be happy to keep you apprised of the progress of this process.
    I want to emphasize that while the OIG report identified serious 
problems with the EEP, the EEP process also made OSHA more aware of 
criminal violations. While a direct correlation between the EEP and the 
number of OSHA criminal referrals to DOJ has not yet been established, 
the EEP process increased awareness of criminal violations, and more 
awareness led to more referrals. Referrals of potentially criminal 
willful violations to the Department of Justice (DOJ) for prosecution 
increased from six per year (1993-2003) to 12 cases in FY 2008. This is 
the most serious sanction available under the OSH Act and can result in 
incarceration for an employer. Among the issues I will be looking at 
are whether OSHA is referring the proper number of such cases to DOJ 
and how we can work better with DOJ to prosecute these cases.
    Although the EEP is an important component of OSHA's overall 
compliance strategy, it is not the only enforcement tool that we 
utilize. OSHA relies primarily on its LEPs and NEPs, and the Site 
Specific Targeting Program for the vast majority of its enforcement 
work. According to OSHA's Integrated Management Information System 
(IMIS), Federal and State OSHA programs conduct approximately 90,000 
inspections each year. Federal OSHA cited almost 89,000 violations in 
FY 2008. Over 80% of these violations were classified as willful, 
serious or repeat. Over 120 inspections resulted in penalties totaling 
more than $100,000.
    Currently there are NEPs focusing on the hazards of combustible 
dust, amputations, lead, shipbreaking, crystalline silica, and 
trenching/excavations. We are also finalizing an NEP focusing on 
flavoring chemicals (diacetyl). In addition, OSHA has more than 140 
Regional/Local Emphasis programs around the country.
    OSHA's most comprehensive inspection program is the Site-Specific 
Targeting Plan (SST), which targets workplaces that have 40 or more 
employees and have reported the highest injury/illness rates. The 
targeting lists are updated every year to reflect the most recent data. 
Virtually all SST inspections are comprehensive visits in which the 
agency's compliance officers examine all aspects of the workplace's 
operations as well as the effectiveness of its safety and health 
efforts.
    Madam Chairman, Secretary Solis has emphasized that strong, 
vigorous enforcement of the OSH Act is among her top priorities. OSHA 
will be adding inspectors to fulfill its responsibilities under the 
American Recovery and Reinvestment Act of 2009, and the President is 
requesting increased funding for OSHA in the 2010 budget.
    In the meantime, we need to better utilize the resources that we 
already have. In order to direct more of OSHA's existing resources into 
enforcement and to provide time to address concerns in an upcoming GAO 
Report on the efficacy of OSHA's Voluntary Protection Program, I have 
informed the field staff that we will suspend the previous 
administration's practice of establishing goals for new Voluntary 
Protection Program sites and Alliances.
    Madam Chairman, thank you once again for giving me the opportunity 
to appear today. OSHA will let the Subcommittee know when we have 
completed the design of the new enforcement program. No matter how 
well-intentioned or well-designed, if an enforcement policy is not 
implemented well it is a source of frustration--for workers, for 
Members of this Subcommittee, and for the American taxpayer. Not only 
are we committed to designing policies that protect workers, we are 
also committed to doing our utmost to implement those policies 
successfully.
    Thank you and I'd be happy to answer any questions.
                                 ______
                                 
    Chairwoman Woolsey. Thank you.
    As you heard, the bells are ringing. What we would like to 
do, so you don't have to sit around here for an hour while we 
are voting--we have a whole series of votes. We are going to go 
3 minutes each--and just the three of us, I guess, are here.
    So thank you. I think we did the wrong thing. We should 
have had you first. I thought you would be the--you are the 
cleanup batter. But I would have preferred to have everybody 
here when you were speaking. So next time, you will be first.
    All right. So, we have the report. OSHA penalties are too 
low. And the report tells us what we didn't do on EEP. But what 
are we going to do about making these penalties serious 
enough--and not just in funding penalties--so we have penalties 
that mean something to the CEOs where we hold corporate 
officers accountable, and multi-sited facilities and employers 
accountable? I think you know what I am asking.
    Mr. Barab. Yes, that is a good question, Madam Chairman.
    As you know, to a certain extent OSHA penalties are 
prescribed by the law. The maximum OSHA penalties are set by 
the law, and were last set in 1990. It has been quite a while 
since they have been raised.
    Within the law, however, we do have some discretion about 
where our penalties are. And I think there is a general 
consensus within OSHA, and certainly outside OSHA, that we need 
to take another look at our penalties.
    And I have set up a task force since I have been there to 
take another look at OSHA's penalties, look at some of the 
reductions that we make in our penalties, and try to improve 
that process and raise those penalties to where they are a 
realistic deterrent to employers.
    Chairwoman Woolsey. And when you talk about reductions, we 
were talking about what happened with Waste Management with the 
gentleman before, on the last panel, his stepfather--that 
penalty of $9,000-$10,000 was reduced to $6,300. Right?
    Mr. Barab. That is right. It was reduced, I believe, by the 
review commission.
    Chairwoman Woolsey. Right. So you are going to put some----
    Mr. Barab. Yes. I mean, there is no doubt that, I think, 
many OSHA penalties are too low. And, again, we are taking a 
look at that, and we are going to try to see what we can do, 
again, within the parameters of the law.
    We do note, however, that there has been quite a bit of 
criticism out there about OSHA penalties, as well as the 
introduction of the Protecting America's Workers Act, and we 
are busily analyzing that bill. And we hope to have a position 
on that very soon.
    Chairwoman Woolsey. So, very quickly, on multi-sited, 
multi-state employer sites, is OSHA doing anything to make sure 
that if it happens in one place, then that employer has to look 
at all of the facilities?
    Mr. Barab. Yes. That is the main focus of the EEP program, 
and certainly our new program. Again, we did set up a task 
force. We are busily looking at that.
    And we will have the new program finalized soon. And that 
is the major emphasis----
    Chairwoman Woolsey. Good.
    Mr. Barab [continuing]. On the program, to make sure that 
we go to all other workplaces and look for similar hazards in 
those workplaces.
    Chairwoman Woolsey. Thank you so much.
    Mr. Price?
    Dr. Price. Thank you, Madam Chair.
    You now know what it is like to be on the clock, so, when 
the red light comes. I want to thank you for your testimony and 
thank you for your service and future service with OSHA.
    Everyone watching this hearing might get the sense that 
things were going absolutely in the wrong direction all across 
this nation as it relates to workplace safety. And I think it 
is important to point out, as you did, that there are 
remarkably dedicated workers at OSHA.
    And something, actually, is moving in the right direction. 
I showed this the other day at our hearing: workplace 
fatalities from 1994-2006 down from 5.3 per 100,000 to 3.9 per 
100,000. Certainly, 3.9 is too high, but something is moving in 
the right direction.
    By the same token, workplace injury and illness rates--this 
chart is from 1990 through 2006, and obviously the trend is 
significantly moving in the right direction.
    I ask that to ask you: What is the best measure of progress 
in all of this? We have talked about numbers of citations, 
dollar fines, all those kind of things. What, in your opinion, 
is the best measure for how we should objectively evaluate 
whether or not we are making progress?
    Mr. Barab. Well, clearly, if we have accurate statistics on 
both workplace fatalities and injuries and illnesses, those 
would be good indicators.
    I believe the fatality statistics are quite accurate 
because they are based on a census. This committee, actually 
the full committee, held a hearing last year and the staff 
produced a report that revealed quite a bit of--quite a few 
studies and opinion out there in the world, in both inside and 
outside OSHA, that the injury and illness statistics 
particularly are not accurate, and in fact some studies that 
OSHA may be actually only counting about one-third of injuries 
and illnesses.
    We received some money from Congress in this year's budget, 
and we are setting up a task force, again, to look at the 
accuracy of those statistics, working with BLS and working with 
NIOSH on that so that we have more accurate statistics.
    We also know that because of the shift in industry from 
manufacturing to service that we are going to see a natural 
decline in fatalities as well as injuries and illnesses.
    The problem is, Mr. Price, that when you look at the 
individual cases there are still far, far too many cases of 
workplace fatalities, injury and illnesses that could clearly 
be prevented. Far too many fatalities still, far too many 
injuries and illnesses overall, and that is what we are really 
focusing on.
    Dr. Price. And the Severe Violators Program will hopefully 
get us in that direction, because all of us wants to find the 
outliers and make certain that we are concentrating on those 
folks as well.
    I thank you for your testimony.
    Chairwoman Woolsey. Mr. Bishop?
    Mr. Bishop. Thank you, Madam Chair.
    And thank you, Mr. Secretary.
    We had a hearing earlier this week in which a witness 
testified that because OSHA penalties are only misdemeanors, it 
is unlikely that the Department of Justice will prosecute those 
cases. Do you agree with that assessment?
    Mr. Barab. That is what I am told, yes.
    Mr. Bishop. Okay.
    And are there ways, if the OSHA infractions remain 
misdemeanors, if that remains our construct, are there ways 
that OSHA can try to work with the DOJ to increase the number 
of referrals and prosecutions, or is the better way to make the 
transgressions be felonies as opposed to misdemeanors?
    Mr. Barab. Well, again, we are reading the Protecting 
America's Workers Act, and we understand that is where you are 
going on that bill. And we are analyzing that right now and 
will have an opinion for it.
    But there is no doubt in anybody's mind that the fact that 
the worst penalty is a misdemeanor has raised a lot of problems 
in terms of making OSHA citations, OSHA penalties, a realistic 
deterrent to employers' cutting corners, especially where 
fatalities or serious injuries occur.
    Mr. Bishop. Okay.
    One more question: If we were to move in the direction of 
making the behavior potentially criminal behavior, do you 
believe that the current cast of OSHA inspectors has the 
expertise to develop cases for criminal referral?
    Mr. Barab. We are working with the Justice Department on 
increasing the expertise of OSHA inspectors to follow up on 
potential criminal cases.
    Clearly, if the law is changed and we happen to get a lot 
more criminal cases and the scope is expanded, we will need to 
do additional training, and OSHA inspectors will need 
additional skills.
    Mr. Bishop. Okay. Thank you very much.
    I yield back, Madam Chair.
    Chairwoman Woolsey. Thank you.
    Today we have examined one in particular of OSHA's 
programs, the EEP, and we have highlighted some real flaws.
    I am totally confident that OSHA, under the watchful eyes 
of the Secretary of Labor, Hilda Solis, and her Assistant 
Secretary will do all that it can do to make large companies--
in fact, all companies--accountable for the safety and health 
of their employees.
    We have got a lot of work to do. But we in Congress, on 
both sides of the aisle, are ready to do our part.
    And I thank you very much, all of the witnesses, and you in 
particular, Mr. Secretary, for sitting here and then getting 
such a short shrift. Thank you very much.
    So with that, as previously ordered, members will have 14 
days to submit additional materials for the hearing record. Any 
member who wishes to submit follow-up questions in writing to 
the witnesses should coordinate with majority staff within 14 
days.
    [An additional submission by Mr. Price follows:]

                 Prepared Statement of the Cintas Corp.

    Cintas Corporation submits this statement for the record to the 
House Education and Labor Committee for the hearing titled ``Are OSHA's 
penalties adequate to deter health and safety violations?'' held April 
28, 2009 and to the House Education and Labor Subcommittee on Workforce 
Protections for the hearing titled ``Improving OSHA's Enhanced 
Enforcement Program'' held on April 30, 2009.
    Throughout the Committee and Subcommittee hearings on April 28 and 
30, 2009, various allegations were made against Cintas that are flatly 
untrue and deeply concerning. Allegations that Cintas does not care 
about the safety of our employee-partners, does nothing to protect its 
workers' safety, and did nothing in response to the 2007 accident in 
Tulsa, Oklahoma are completely false and misleading. The accident in 
March of 2007 was a tragic event, and we have re-committed our energy 
and resources to prevent such an accident again. This submission seeks 
to set the record straight.
    In March of 2007, one of our employee-partners in Oklahoma lost his 
life when he climbed atop a moving conveyor and fell into an industrial 
dryer. This tragic accident shook our entire organization deeply. With 
our longstanding emphasis on safety, it seemed unimaginable to lose a 
friend and employee-partner. Before the tragic accident, the company's 
safety record was 11 percent better than comparable-sized facilities in 
our industry and had been showing constant improvement. The company is 
re-examining all of the facets of the company's safety program and 
working with outside experts to enhance the program further.
    Below you will find a brief history of Cintas Safety efforts and 
more importantly, some of the efforts taken since the tragic accident.
Brief Safety History
     For the past 40 years, each Cintas uniform rental facility 
has maintained an employee-driven Safety and Improvement Committee. 
Each committee is comprised of frontline partners from production areas 
as well as plant management who meet monthly to review workplace safety 
procedures and guidelines.
     In 2003, the company hired Rick Gerlach, Ph.D. as 
Corporate Director of Safety and Health. Dr. Gerlach has more than 28 
years of experience in the safety and health industry.
     Prior to the 2007 accident, the company had designated 
Regional Safety and Health Coordinators and partners responsible for 
safety at the locations.
     In the three years prior to the Tulsa accident, company 
employees attended more than 115,000 hours of classroom and safety 
training.
     1,350 managers and supervisors completed the two-day OSHA 
``ten-hour course.''
     We introduced a revised safety compliance auditing program 
in 2004. As a result of these efforts, the number of citations we 
received per OSHA inspection in 2004 was reduced by more than 75 
percent in 2006.
    Enhancements to our program since the accident:
     In 2007, we created the Executive Safety Council chaired 
by the CEO. This Council constantly monitors the compliance and ethics 
of our business practices. It helps us develop and implement processes 
to lead Cintas to world-class safety performance, and it includes 
Cintas executives and three nationally-recognized safety experts 
serving as advisors. These experts include former OSHA Administrator 
John Henshaw, former Proctor & Gamble worldwide health and safety 
director Dr. Richard Fulwiler, and former DuPont corporate safety and 
health director Michael Deak.
     Expanded wash alley training programs that include weekly 
re-training of all wash alley employee-partners.
     Limited wash alley access. Only partners trained in wash 
alley safety procedures are allowed in the alley.
     Implemented full time wash alley safety monitors whose 
role is to monitor activities and safe work practices any time a wash 
alley partner is working in the wash alley. This control is in place in 
all locations unless the location has a permanent engineered solution 
installed.
     Hired an additional 17 Regional Safety and Health 
Coordinators and Safety and Health Specialists around the country to 
help in monitoring safety initiatives in all Cintas facilities.
     Increased internal safety audits to three times annually.
     Several Cintas locations have enrolled in OSHA's Voluntary 
Protection Program (VPP) to achieve ``Star'' certification.
     Established safety scorecard to ensure compliance with all 
required safety initiatives and accountability by management.
     Working with manufacturers of wash alley equipment to 
create an engineered solution that will shut off all hazardous motion 
in the wash alley when someone enters it. This technology will be 
available to all companies within our industry.
    Cintas is committed to continual improvement in our safety program 
and are working to become world class. We welcome the industry to 
utilize the best practices we are gathering and implementing to ensure 
accidents of this nature do not occur in the future for anyone in the 
industrial laundry industry. The results of our commitments are clearly 
demonstrated. Our total incident rate for 2008 is more than 20 percent 
better than the last reported government data for the same size 
facilities in our industry.
    Founded on a family business created during The Great Depression, 
Cintas has become the leading business-services company in the United 
States, providing more than 800,000 business-customers with uniforms, 
entrance mats, restroom supplies, promotional products first aid and 
safety products, fire protection services and document management 
services. It's a unique value-based organization in which all employee-
partners are made shareholders on their first anniversaries, sharing in 
combined growth and success of their company. For more than 75 years, 
together we have built a successful business based on ``honesty and 
integrity in everything we do'' and were recently named by FORTUNE 
magazine as one of ``America's Most Admired Companies for the ninth 
consecutive year.'' More information can be found at www.cintas.com.
                                 ______
                                 
    And without objection, this hearing is adjourned.
    [Whereupon, at 11:25 a.m., the Subcommittee was adjourned.]

                                 
