[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
PROMOTING SAFE WORKPLACES THROUGH
EFFECTIVE AND RESPONSIBLE
RECORDKEEPING STANDARDS
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
COMMITTEE ON EDUCATION
AND THE WORKFORCE
U.S. House of Representatives
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
HEARING HELD IN WASHINGTON, DC, MAY 25, 2016
__________
Serial No. 114-50
__________
Printed for the use of the Committee on Education and the Workforce
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Committee address: http://edworkforce.house.gov
______
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COMMITTEE ON EDUCATION AND THE WORKFORCE
JOHN KLINE, Minnesota, Chairman
Joe Wilson, South Carolina Robert C. ``Bobby'' Scott,
Virginia Foxx, North Carolina Virginia
Duncan Hunter, California Ranking Member
David P. Roe, Tennessee Ruben Hinojosa, Texas
Glenn Thompson, Pennsylvania Susan A. Davis, California
Tim Walberg, Michigan Raul M. Grijalva, Arizona
Matt Salmon, Arizona Joe Courtney, Connecticut
Brett Guthrie, Kentucky Marcia L. Fudge, Ohio
Todd Rokita, Indiana Jared Polis, Colorado
Lou Barletta, Pennsylvania Gregorio Kilili Camacho Sablan,
Joseph J. Heck, Nevada Northern Mariana Islands
Luke Messer, Indiana Frederica S. Wilson, Florida
Bradley Byrne, Alabama Suzanne Bonamici, Oregon
David Brat, Virginia Mark Pocan, Wisconsin
Buddy Carter, Georgia Mark Takano, California
Michael D. Bishop, Michigan Hakeem S. Jeffries, New York
Glenn Grothman, Wisconsin Katherine M. Clark, Massachusetts
Steve Russell, Oklahoma Alma S. Adams, North Carolina
Carlos Curbelo, Florida Mark DeSaulnier, California
Elise Stefanik, New York
Rick Allen, Georgia
Juliane Sullivan, Staff Director
Denise Forte, Minority Staff Director
------
SUBCOMMITTEE ON WORKFORCE PROTECTIONS
TIM WALBERG, Michigan, Chairman
Duncan Hunter, California Frederica S. Wilson, Florida,
Glenn Thompson, Pennsylvania Ranking Member
Todd Rokita, Indiana Mark Pocan, Wisconsin
Dave Brat, Virginia Katherine M. Clark, Massachusetts
Michael D. Bishop, Michigan Alma S. Adams, North Carolina
Steve Russell, Oklahoma Mark DeSaulnier, California
Elise Stefanik, New York Marcia L. Fudge, Ohio
C O N T E N T S
----------
Page
Hearing held on May 25, 2016..................................... 1
Statement of Members:
Walberg, Hon. Tim, Chairman, Subcommittee on Workforce
Protections................................................ 1
Prepared statement of.................................... 3
Wilson, Hon. Frederica S., Ranking Member, Subcommittee on
Workforce Protections...................................... 4
Prepared statement of.................................... 10
Statement of Witnesses:
Sapper, Mr. Arthur G., Partner, McDermott Will and Emery LLP,
Washington D.C............................................. 52
Prepared statement of.................................... 54
Sarvadi, Mr. David, Partner, Keller and Heckman LLP,
Washington, D.C............................................ 12
Prepared statement of.................................... 15
Sokas, Dr. Rosemary, M.D., Professor and Chair, Department of
Human Science, Georgetown University School of Nursing and
Health Studies, Washington, D.C............................ 39
Prepared statement of.................................... 41
Sprick, Ms. Lisa, President, Sprick Roofing Co., Corvallis,
OR......................................................... 30
Prepared statement of.................................... 32
Additional Submissions:
Mr. Sapper:
Letter dated October 27, 2015, from McDermott Will and
Emery.................................................. 94
Letter dated May 31, 2016, from McDermott Will and Emery. 107
Chairman Walberg:
Letter dated May 24, 2016, from AGC of America........... 110
Letter dated May 31, 2016, from Akin Gump Strauss Hauer
and Feld LLP........................................... 111
Ms. Wilson:
GAO Report: Enhancing OSHA's Records Audit Process Could
Improve the Accuracy of Worker Injury and Illness Data. 6
GAO Report: Better OSHA Guidance Needed on Safety
Incentive Programs..................................... 7
GAO Report: Additional Data Needed to Address Continued
Hazards in the Meat and Poultry Industry............... 8
GAO Report Links......................................... 9
Op-ed entitled ``Don't Fear the Injury Data''............ 78
Warning Notice........................................... 81
Letter dated May 23, 2016, from Harvard Kennedy School
Ash Center for Democratic Governance and Innovation.... 89
Letter dated May 24, 2016, from the American Federation
of State, County, and Municipal Employees (AFSCME)..... 85
Letter dated May 24, 2016, from United Steelworkers...... 87
Letter dated May 25, 2016, from Public Citizen........... 83
PROMOTING SAFE WORKPLACES THROUGH
EFFECTIVE AND RESPONSIBLE
RECORDKEEPING STANDARDS
----------
Wednesday, May 25, 2016
U.S. House of Representatives
Committee on Education and the Workforce
Subcommittee on Workforce Protections
Washington, D.C.
----------
The subcommittee met, pursuant to call, at 10:07 a.m., in
Room 2175, Rayburn House Office Building. Hon. Tim Walberg
[Chairman of the subcommittee] presiding.
Present: Representatives Walberg, Bishop, Stefanik, Wilson,
Pocan, and DeSaulnier.
Also Present: Representatives Kline and Scott.
Staff Present: Bethany Aronhalt, Press Secretary; Janelle
Belland, Coalitions and Members Services Coordinator; Ed
Gilroy, Director of Workforce Policy; Jessica Goodman,
Legislative Assistant; Callie Harman, Legislative Assistant;
Nancy Locke, Chief Clerk; John Martin, Professional Staff
Member; Dominique McKay, Deputy Press Secretary; Krisann
Pearce, General Counsel; Molly McLaughlin Salmi, Deputy
Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk;
Loren Sweatt, Senior Policy Advisor; Olivia Voslow, Staff
Assistant; Joseph Wheeler, Professional Staff Member; Tylease
Alli, Minority Clerk/Intern and Fellow Coordinator; Christine
Godinez, Minority Staff Assistant; Brian Kennedy, Minority
General Counsel; Richard Miller, Minority Senior Labor Policy
Advisor; Veronique Pluviose, Minority Civil Rights Counsel; and
Marni von Wilpert, Minority Labor Detailee.
Chairman Walberg. A quorum being present, the subcommittee
will come to order. Good morning. I want to start by thanking
our witnesses for being here today.
As members of the Subcommittee on Workforce Protections, we
greatly benefit from your expertise, and we appreciate that you
took time out of your busy schedules to testify here today, and
walked in from beautiful weather outside as well.
Representative Pocan and I were trying to figure out how we
could do this outdoors instead of indoors, but protocol
continues.
There are many issues under our jurisdiction that touch
workplaces across the country. One of the more important issues
is employee health and safety. This is a challenging issue that
directly impacts the lives of America's workers and their
families, and one that demands thoughtful and meaningful
solutions.
As I said at a hearing last month, we all agree that
hardworking men and women should be able to earn a paycheck
without risking a serious injury or being exposed to a deadly
disease, and every family deserves the peace of mind that their
loved ones are safe on the job and will come home to them.
There is no one in this room who doubts the need for strong
health and safety protections or that OSHA has a role to play
in promoting safe workplaces. Reducing occupational injuries,
illnesses, and fatalities is a priority that crosses party
lines and stretches from the White House to the halls of
Congress.
However, there are times when we share a difference of
opinion in how to reach that goal. One illness, one injury, or
one fatality in the workplace is one too many. That is why as a
Committee we believe bad actors who cut corners and put workers
in harm's way must be held accountable. At the same time, the
administration should work with employers to address gaps in
safety in order to prevent injuries and illnesses before they
occur.
We also believe health and safety policies should be
created with input from the public. Employers and their
employees know better than most the unique safety challenges
facing their workplaces. They are there.
If rules coming out of Washington fail to account for those
unique challenges, or if they are too complex and confusing to
understand, they will not deliver the protections workers need.
That is why the rulemaking process should be transparent and
allow for public feedback.
Unfortunately, time and time again, the Obama
administration has pursued a different, more punitive approach.
The majority of employers want to do the right thing, and I
truly believe that, but instead of working with those employers
to develop proactive safety measures, the agency is focused
more on punishing everyone for actions of a few. Regulation by
shaming.
As I said, employers who jeopardize the safety of workers
must be held accountable, but the agency's reactive approach
does nothing to help employers understand complicated
regulations, and it does nothing to achieve our common goal of
preventing tragedies from occurring in the first place.
Several recent changes to OSHA's injury and illness
reporting standards are the latest example of this flawed
approach and the focus of our hearing today. These new
requirements significantly change who the standards apply to,
what needs to be reported, and how and when OSHA must be
notified.
As is often the case, these changes will create additional
layers of red tape, especially for small businesses with
limited resources to fully understand complex safety standards.
To make matters worse, the administration has advanced these
expensive changes despite broad public concerns.
One of the most concerning requirements calls for public
posting of injury and illness records online without
corresponding context. This regulatory scheme designed to shame
employers will do little, if anything, to advance the cause of
worker safety.
What it will do is make it easier for big labor to organize
and for trial lawyers to bring frivolous lawsuits. The agency
will need to spend millions of dollars on this special interest
tool which will shift scarce resources away from proactive
policies to improve safety, such as inspections and compliance
assistance programs, VPP and the like, and in the process, the
agency is jeopardizing the privacy of workers' personal
information.
This rule is not about serving the best interests of
workers, it is about serving powerful special interests at the
expense of workers. We owe it to working families to hold the
administration accountable for its misguided policies and to
call on OSHA to take a more responsible, effective, and
collaborative approach.
This oversight hearing is an important part of that effort
and our commitment to protecting the health and safety of
American workers.
I look forward to today's important discussion, and will
recognize the Ranking Member, Ms. Wilson, for her opening
remarks.
[The statement of Chairman Walberg follows:]
Prepared Statement of Hon. Tim Walberg, Chairman, Subcommittee on
Workforce Protections
There are many issues under our jurisdiction that touch workplaces
across the country. One of the more important issues is employee health
and safety. This is a challenging issue that directly impacts the lives
of America's workers and their families, and one that demands
thoughtful and meaningful solutions.
As I said at a hearing last month, we all agree that hardworking
men and women should be able to earn a paycheck without risking a
serious injury or being exposed to a deadly disease, and every family
deserves the peace of mind that their loved ones are safe on the job.
There is no one in this room who doubts the need for strong health and
safety protections, or that OSHA has a role to play in promoting safe
workplaces. Reducing occupational injuries, illnesses, and fatalities
is a priority that crosses party lines, and stretches from the White
House to the halls of Congress.
However, there are times when we share a difference of opinion in
how to reach that goal. One illness, one injury, or one fatality in the
workplace is one too many. That's why, as a committee, we believe bad
actors who cut corners and put workers in harm's way must be held
accountable. At the same time, the administration should work with
employers to address gaps in safety in order to prevent injuries and
illnesses before they occur.
We also believe health and safety policies should be created with
input from the public. Employers and their employees know better than
most the unique safety challenges facing their workplaces. If rules
coming out of Washington fail to account for those unique challenges,
or if they're too complex and confusing to understand, they won't
deliver the protections workers need. That's why the rulemaking process
should be transparent and allow for public feedback.
Unfortunately, time and again, the Obama administration has pursued
a different, more punitive approach. The majority of employers want to
do the right thing. But instead of working with those employers to
develop proactive safety measures, the agency is focused more on
punishing everyone for the actions of a few.
As I said, employers who jeopardize the safety of workers must be
held accountable. But the agency's reactive approach does nothing to
help employers understand complicated regulations, and it does nothing
to achieve our common goal of preventing tragedies from occurring in
the first place.
Several recent changes to OSHA's injury and illness reporting
standards are the latest example of this flawed approach, and the focus
of our hearing. These new requirements significantly change who the
standards apply to, what needs to be reported, and how and when OSHA
must be notified. As is often the case, these changes will create
additional layers of red tape--especially for small businesses with
limited resources to fully understand complex safety standards. And to
make matters worse, the administration has advanced these expansive
changes despite broad, public concerns.
One of the most concerning requirements calls for public posting of
injury and illness records online without corresponding context. This
regulatory scheme designed to shame employers will do little--if
anything--to advance the cause of worker safety. What it will do is
make it easier for Big Labor to organize, and for trial lawyers to
bring frivolous lawsuits. The agency will need to spend millions of
dollars on this special interest tool, which will shift scarce
resources away from proactive policies to improve safety, such as
inspections and compliance assistance programs. And in the process, the
agency is jeopardizing the privacy of workers' personal information.
This rule isn't about serving the best interests of workers--it's about
serving powerful special interests at the expense of workers.
We owe it to working families to hold the administration
accountable for its misguided policies and to call on OSHA to take a
more responsible, effective, and collaborative approach. This oversight
hearing is an important part of that effort and our commitment to
protecting the health and safety of America's workers.
______
Ms. Wilson. Thank you, Chair Walberg, and many thanks to
the witnesses who are with us here today. Thank you.
Mr. Chairman, the Occupational Safety and Health
Administration was established to assure so far as possible
every working man and woman in the Nation safe and healthful
working conditions.
Sadly, every year, tens of thousands of Americans are
severely injured on the job, with significant, sometimes
permanent impact to self and family. Until last year, OSHA
lacked information vital for effectively responding to these
workplace injuries.
In its ongoing efforts to improve workplace safety, OSHA
has issued two rules to provide transparency about injury and
illness rates and to ensure disclosed information is accurate.
First, as of January 2015, OSHA requires employers to
report work-related amputations, inpatient hospitalizations, or
loss of eye within 24 hours. This severe injury reporting
requirement is in addition to OSHA's preexisting requirement to
report all fatalities within eight hours.
In the year since this requirement took effect, over 10,000
incidents were reported to Federal OSHA alone, including 2,644
amputations and 7,636 inpatient hospitalizations.
Ideally, OSHA would inspect each workplace where a severe
injury occurs, but because Congress has literally starved OSHA
of much-needed resources, the Federal agency lacks a sufficient
number of facility inspectors. For example, with only 63
inspectors in my home state of Florida, it would take 266 years
for OSHA to inspect each workplace in Florida.
Despite its limited resources with 24-hour reporting of
severe injuries, OSHA was able to work with employers, asking
them to conduct their own incident investigations, report their
findings to OSHA, and implement remedies to eliminate hazards
and prevent recurrence.
For example, while a worker at a Missouri meat processing
plant was cleaning a blender, it started up suddenly,
amputating both of the worker's lower arms. The employer
immediately reengineered the blender's computer control system,
changed safety interlocks, and enhanced worker training and
supervision, significantly reducing the risk of amputation.
According to OSHA, the worker's arms were surgically reattached
and he is undergoing rehabilitation.
Under its more recent efforts to protect worker safety,
OSHA issued a final rule on May 12, 2016, requiring large
employers and those in high hazard industries to electronically
transmit to OSHA injury logs and annual summaries employers are
already required to maintain and make available to their
employees. OSHA will make this information publically available
on its Web site. OSHA will not collect personal identifiers.
Prior to this rule, most workplace injury and illness logs
were only available at the workplace, making it impossible for
OSHA, other employers, prospective employees, investors, and
public health researchers to know which employers have bad or
good injury records.
Some object to posting this data to OSHA's Web site,
claiming it could harm reputations and damage businesses.
However, under OSHA's 1995 data initiative, 80,000
establishments in high-risk industries were required to provide
OSHA with annual summaries. Since 2004, OSHA posted this data
to its Web site and used it to target its inspections to the
most hazardous worksites. Under this new rule, however, the
universe is expanded to approximately 460,000 establishments.
Furthermore, for the past 15 years, the Mine Safety and
Health Administration has posted injury and illness rates
allowing mine operators, prospective employees, and current
workers to access the information. Indeed, MSHA posts even more
information to its Web site than required under OSHA's new
rule.
I would again argue that responsible employers want to
demonstrate to their employees, investors, and the public eye
that they are committed to workplace safety. Public disclosure
can help nudge employers towards improved safety outcomes.
DOL's reporting rules also seek to ensure injury and
illness reports and records are accurate. This means addressing
the major problem of underreporting of injuries, as recommended
by two GAO reports for this Committee. These GAO reports
document how employer policies, such as rate-based safety
incentive programs, discourage workers from reporting injuries.
One can easily imagine how programs that cut potential
employee bonuses when the worksite injury rate goes up can have
a chilling effect on reporting. In addition, the Committee will
be releasing a new GAO report examining underreporting of
injuries in the poultry and meat process industries.
To further ensure accuracy of data, OSHA's rule also makes
it clear employers may not discriminate against workers for
reporting injuries or establish policies discouraging them from
doing so. We know that the accuracy of reporting rests on
employees' confidence that reporting injuries will not lead to
job loss.
Mr. Chairman, I ask unanimous consent to enter these three
GAO reports into the record.
Chairman Walberg. Without objection, and hearing none, they
will be entered.
[The information follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Ms. Wilson. Mr. Chairman, as we begin this hearing, I want
to remind all in attendance that we should focus on ensuring
safe workplaces for those we represent. Our constituents have
families. They have loved ones. They deserve our efforts to
come together as the Subcommittee on Workforce Protections to
promote and protect safe and healthy workplaces for all
Americans.
I also want to welcome visiting with me today, Paridas
Gouba, from Burkina Faso, West Africa. Paridas, raise your hand
so they can see you. She is shadowing me today from West
Africa.
I want to thank the witnesses for their testimony today,
and I yield back the balance of my time.
[The statement of Ranking Member Wilson follows:]
Prepared Statement of Hon. Frederica S. Wilson, Ranking Member,
Subcommittee on Workforce Protections
Mr. Chairman, the Occupational Safety and Health Administration was
established ``to assure so far as possible every working man and woman
in the Nation safe and healthful working conditions.''
Sadly, every year, tens of thousands of Americans are severely
injured on the job, with significant, sometimes permanent, impact to
self and family. Until last year, OSHA lacked information vital for
effectively responding to these workplace injuries.
In its ongoing efforts to improve workplace safety, OSHA has issued
two rules to provide greater transparency about injury and illness
rates and to ensure disclosed information is accurate.
First, as of January 2015, OSHA requires employers to report work-
related amputations, inpatient hospitalizations or loss of eye within
24 hours. This severe injury reporting requirement is in addition to
OSHA's pre-existing requirement to report fatalities within 8 hours.
In the year since this requirement took effect, over 10,000
incidents were reported to federal OSHA alone--including 2,644
amputations and 7,636 in-patient hospitalizations.
Ideally, OSHA would inspect each workplace where a severe injury
occurs, but because Congress has starved OSHA of much-needed resources,
the federal agency lacks a sufficient number of facility inspectors.
For example, with only 63 inspectors in my home state of Florida, it
would take 266 years for OSHA to inspect each workplace.
Despite its limited resources, with 24 hour reporting of severe
injuries, OSHA was able to work with employers, asking them to conduct
their own incident investigations, report their findings to OSHA, and
implement remedies to eliminate hazards and prevent recurrence.
For example, while a worker at a Missouri meat processing plant was
cleaning a blender, it started up suddenly, amputating both of the
worker's lower arms. The employer immediately re-engineered the
blender's computer control system, changed safety interlocks, and
enhanced worker training and supervision, significantly reducing the
risk of amputation. According to OSHA, the worker's arms were
surgically reattached, and he is undergoing rehabilitation.
Under its more recent efforts to protect worker safety, OSHA issued
a final rule on May 12, 2016 requiring large employers and those in
high hazard industries to electronically transmit to OSHA injury logs
and annual summaries employers are already required to maintain and
make available to their employees. OSHA will make this information
publically available on its website. OSHA will not collect personal
identifiers.
Prior to this new rule, most workplace injury and illness logs were
only available at the workplace, making it impossible for OSHA, other
employers, prospective employees, investors and public health
researchers to know which employers have bad or good injury records.
Some object to posting this data to OSHA's web site, claiming it
could harm reputations and damage businesses.
However, under OSHA's 1995 Data Initiative, 80,000 establishments
in high risk industries were required to provide OSHA with annual
summaries. Since 2004, OSHA posted this data to its website and used it
to target its inspections to the most hazardous worksites. Under this
new rule, however, the universe is expanded to approximately 460,000
establishments.
Furthermore, for the past 15 years, the Mine Safety and Health
Administration has posted injury and illness rates, allowing mine
operators, prospective employees, and current workers to access the
information. Indeed, MSHA posts even more information to its website
than required under OSHA's new rule.
I would also argue that responsible employers want to demonstrate
to their employees, investors, and the public that they are committed
to workplace safety. Public disclosure can help nudge employers towards
improved safety outcomes.
DOL's reporting rule also seeks to ensure injury and illness
reports and records are accurate.
This means addressing the major problem of underreporting of
injuries, as recommended by two GAO reports for this committee. These
GAO reports document how employer policies, such as rate based safety
incentive programs, discourage workers from reporting injuries. One can
easily imagine how programs that cut potential employee bonuses when
the worksite injury rate goes up can have a chilling effect on
reporting. In addition, the committee will be releasing a new GAO
report examining underreporting of injuries in the poultry and meat
process industries.
To further ensure accuracy of data, OSHA's rule also makes it clear
employers may not discriminate against workers for reporting injuries
or establish policies discouraging them from doing so. We know that the
accuracy of reporting rests on employees' confidence that reporting
injuries will not lead to job loss.
Mr. Chairman, I ask unanimous consent to enter these three GAO
reports into the record.
Mr. Chairman, as we begin this hearing, I want to remind all in
attendance that we should focus on ensuring safe workplaces for those
we represent. Our constituents have families. They have loved ones.
They deserve our efforts to come together as the Subcommittee on
Workforce Protections to promote and protect safe and healthy
workplaces for all Americans.
I want to thank the witnesses for their testimony today and yield
back the balance of my time.
______
Chairman Walberg. I thank the gentlelady, and having been
to Burkina Faso a number of times, welcome, good to see you
here.
Pursuant to Rule 7(c), all subcommittee members will be
permitted to submit written statements to be included in the
permanent hearing record, and without objection, the hearing
record will remain open for 14 days to allow statements,
questions for the record, and other extraneous material
referenced during the hearing to be submitted in the official
hearing record.
It is now my pleasure to introduce today's witnesses
beginning with Mr. David Sarvadi, who is a partner with Keller
and Heckman LLP here in Washington, D.C., and will testify on
behalf of the Coalition for Workplace Safety.
Mr. Sarvadi represents clients before a variety of Federal
and State enforcement agencies in legal proceedings involving
OSHA citations, EPA notices of violation, and EEOC charges of
discrimination. He works with clients in developing, reviewing,
and auditing compliance programs in all of these areas, and in
obtaining agency rulings on proposed activities and questions.
Welcome.
Ms. Lisa Sprick is president of Sprick Roofing in
Corvallis, Oregon, a great place for fly fishing as well, and
will testify on behalf of the National Roofing Contractors
Association. Sprick Roofing, a family-owned business
established in 1952, installs low and steep slope roof systems
on both commercial and residential buildings. Welcome.
Dr. Rosemary Sokas is chair of the Department of Human
Science at the Georgetown University School of Nursing and
Health Studies here in Washington, D.C., and will testify on
behalf of the American Public Health Association. Dr. Sokas has
more than 30 years of experience in the field of occupational
and environmental medicine and public health. Welcome.
Finally, Mr. Arthur G. Sapper, is a partner with McDermott
Will & Emery LLP here in Washington, D.C. Mr. Sapper practices
administrative and regulatory law, focusing on all areas of
occupational safety and health law, and mine safety and health
law, regularly litigating before the Occupational Safety and
Health Review Commission, the Federal Mine Safety and Health
Review Commission, the Federal appellate courts, and various
administrative bodies. Welcome.
I will now ask our witnesses to raise your right hands.
[Witnesses sworn.]
Chairman Walberg. Let the record reflect the witnesses
answered in the affirmative. Before I recognize you to provide
your testimony, let me briefly explain our lighting system,
which is pretty self-explanatory. Green, your five minutes
continue on until you see yellow, which is a caution light that
says you have one minute remaining, and when red hits, please
do your best to finish up your statement in the next paragraph
or so. We would appreciate that, and we will hold our Committee
to that standard as well.
Let me now ask Mr. Sarvadi to lead us in his five minutes
of testimony.
TESTIMONY OF DAVID SARVADI, PARTNER, KELLER AND HECKMAN LLP,
WASHINGTON, D.C., TESTIFYING ON BEHALF OF THE COALITION FOR
WORKPLACE SAFETY
Mr. Sarvadi. Thank you, Mr. Chairman. Mr. Chairman, Ranking
Member Wilson, members, honored guests, and fellow panelists, I
am honored to be asked to participate in this important
hearing.
Looking back on now the long history of the Occupational
Safety and Health Administration, I have concluded that
workplace safety and health efforts in the United States have
been a great success. I actually started my career prior to the
creation of the Occupational Safety and Health Administration,
and I spent 15 years as an industrial hygienist in the real
world dealing with these kinds of problems before I came to
Washington.
From 1970 to 2014, the overall case rate has declined by
more than five times, and fatalities from 14,000 to 4,800. Of
the fatalities, roadway accidents represent 36 percent of the
total, homicides, 9 percent, and aircraft incidents, 17
percent, which means that more than half of all fatalities are
related to transportation.
Those are areas that most employers do not normally involve
themselves in. Obviously, there are employers who do, and those
employers have in many cases robust programs to address those
kinds of hazards.
What I am pointing out here is the focus of our attention
on workplace incidents and injuries needs to be focused on
things that we can actually control and correct.
While my remarks will be critical of the path OSHA has
taken in recent years, I do not want to be misinterpreted.
Workplace safety and health is a very important topic, and I am
not suggesting in any way that our efforts should be lessened,
but I am challenging the mindset that suggests it is best seen
as a competition between management and labor, more
characteristic of 1930s' thinking. In 2016, we should be
looking at ways to cooperate rather than to be at loggerheads.
The Bush administration, in my view, made significant
progress in that area, but I think OSHA has gotten off track.
The emphasis on enforcement has been overwhelming while the
results have been less than impressive. The rate for both
fatalities and total cases has stagnated.
Worse, OSHA's reputation has reverted to be a poster child
of government high-handedness. Only the IRS is likely to have a
worse and perhaps well-deserved reputation among the citizens.
OSHA's direction needs to be changed. They are exceeding
limits of congressional authority repeatedly and ignoring
administrative law guardrails that help preserve our tripartite
system of government. Its purpose is to assure that liberty is
preserved and government is focused on things it can control.
OSHA has moved far beyond merely establishing reasonably
necessary and appropriate standards and regulations to achieve
Congress' goal of safe and healthy workplaces. OSHA's job is
not to save lives, contrary to its relentless propaganda.
Congress placed the responsibility for protecting employees on
employers, not OSHA. OSHA's job is to make the rules, provide
education and support to employers and employees, and for those
who fail to do so, surely to enforce to the full extent of the
law. The current administration's emphasis on enforcement is
misplaced and training and supporting have been given short
shrift.
The proposals and regulations discussed in my written
testimony wrongly focus on the details of paperwork,
distracting both OSHA and employers from the real task at hand.
We have a pretty good handle on the trends in workplace safety
statistics.
The Bureau of Labor Statistics does a good job of surveying
employees using widely accepted statistical techniques, about
which I was privileged to be educated as part of a National
Academy of Sciences' committee. The BLS approach is sound and
is constantly being improved by its staff.
Unless there is something really wrong with the BLS
approach or statistical theory, the trends are well known and
will not be affected by OSHA's obsession with counting cases.
I wish I could be optimistic in this field, that we could
have a real conversation about why things have stalled and what
can be done about it. I see no evidence that the current
administration is interested in doing so.
As evidence of that fact, I would point to the advisory
committees that OSHA uses. Few, if any, of the people on the
committees depart from the current orthodoxy, technological
change long ago overtook practices that have been entrenched
only due to intellectual inertia.
Here is what I think should be done. The recently adopted
proposals should be shelved until the details of the program
can be developed in conjunction with employers who will have to
use the system. OSHA should be prohibited from publishing
specific case data on injuries and illnesses and the regulation
allowing OSHA to issue citations for retaliation should be
rejected by Congress and the courts as usurpation of
congressional legislative authority.
For those in favor of these approaches, I remind them
eventually people with different viewpoints will be in charge
and they may not like what is then permitted under the loose
interpretation of their authority.
Thank you again, Mr. Chairman and Ranking Member, for the
opportunity to participate in this hearing, and for your
interest in workplace safety and health. I will be happy to
answer any questions you may have.
[The statement of Mr. Sarvadi follows:]
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Chairman Walberg. Thank you. Ms. Sprick, we recognize you
now for five minutes of testimony.
TESTIMONY OF LISA SPRICK, PRESIDENT, SPRICK ROOFING CO., INC.,
CORVALLIS, OR, TESTIFYING ON BEHALF OF THE NATIONAL ROOFING
CONTRACTORS ASSOCIATION
Ms. Sprick. Thank you, Mr. Chairman, and members of the
subcommittee. My name is Lisa Sprick, and I am president of
Sprick Roofing in Corvallis, Oregon. I am testifying today on
behalf of the National Roofing Contractors Association, and
appreciate the opportunity to provide the perspective of
professional roofing contractors on workplace safety
regulations.
Sprick Roofing was founded in 1952 and currently has 25
employees. To date, we have worked 1,360 work days or more than
five years without a time loss accident, and I believe this
speaks to my company's exceptional commitment to safety.
There is concern within our industry regarding OSHA
regulations and impacts they will have on worker safety and
businesses like mine. I believe these regulations will do
little to promote safer workplaces and could prove to be
counterproductive to this goal.
OSHA's overreaching regulatory approach seems to be stuck
in a ``Washington, D.C. knows best'' mode of regulating our
industry, and I do not believe that Washington always knows
best.
The first concern I will discuss is OSHA's regulation to
require companies to submit their injury and illness records
electronically to the agency. OSHA states that posting these
records online will provide employees and others with
information that will enhance workplace safety. However, the
data as included in the reports lack meaningful context, which
is critical to understanding the information properly. Without
context, it is unclear how the information being made public
will improve workplace safety.
Also, misuse of the information by third parties could be
harmful to employers. It is not hard to imagine one of my
competitors gathering this information and using it to sell
against me.
Another concern is possible inadvertent public disclosure
of private employee information that could cause harm to my
workers. Our company goes to great lengths to protect sensitive
employee data. As a small business owner, I have many questions
about what would happen if this information was inadvertently
disclosed.
It is also unclear to me what impact the rule will have on
employee incentive programs designed to promote workplace
safety. I share OSHA's intent to ensure employees must not be
deterred from reporting injuries, and our program provides
incentives to employees to follow the rules that meet or exceed
OSHA standards.
We take a proactive approach to safety and even encourage
our employees to report near misses so we can identify problems
and prevent injuries from occurring.
This regulation and the other OSHA actions have produced
much ambiguity with respect to how OSHA views incentive
programs. The expanded authority in this regulation may remove
a key tool that employers use to ensure safe workplaces.
Another concern with this regulation is adding unnecessary
costs, which is always a concern to small businesses that
operate on a thin margin. This is especially true for
responsible employers, like my company, which comply and often
exceed government regulations, when competing against
contractors who do not always work under the same compliance
with laws and regulations.
I feel that adding new reporting burdens that promise
unspecified benefits merely diverts valuable resources from
risk management strategies that truly protect workers. Efforts
to improve workplace safety could be more effective if OSHA
worked with employers on such strategies.
Another very serious concern I have is OSHA's recent
efforts to impose Federal fall protection regulations on States
like Oregon. This could jeopardize the safety of workers in
Oregon and other States like California and Michigan.
I recently learned that Oregon will adopt Federal fall
protection rules after OSHA demanded our State change its rules
or be faced with losing its State plan status. This will limit
fall protection options which may be the most effective in
preventing falls in many situations.
Oregon rules now allow for more fall protection options,
including the use of slide guards installed at the roof edge to
prevent falls. My company has been using this option for 63
years and we have never had a fatality or serious accident
related to their use. We believe that under many circumstances,
slide guards are the most effective option for preventing
injuries.
It is disturbing that OSHA will impose Federal rules on our
State given that Oregon's record in preventing falls is better
than other States operating under Federal rules. I do not
understand why OSHA would insist on imposing changes without
having empirical evidence that the Federal rules are more
effective than the State rules.
I would urge Congress to prevent OSHA from imposing its
rules on State plans like Oregon's and similar States unless
the agency has data to clearly demonstrate that its rules
produce better results that actually protect workers.
To conclude, I want to reiterate that there is great
concern within the roofing industry with respect to OSHA's
overreaching approach to regulation. It is vital that
employers, workers, government agencies, and other stakeholders
work together to craft effective safety policies based on sound
risk management principles and reliable data.
NRCA and its members stand ready to work with Congress and
OSHA on efforts to improve workplace safety in the future. I
appreciate the opportunity to testify today, and I welcome any
questions you may have. Thank you.
[The statement of Ms. Sprick follows:]
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Chairman Walberg. Thank you. Dr. Sokas, we welcome you and
recognize you for five minutes.
TESTIMONY OF ROSEMARY SOKAS, M.D., PROFESSOR AND CHAIR,
DEPARTMENT OF HUMAN SCIENCE, GEORGETOWN UNIVERSITY SCHOOL OF
NURSING AND HEALTH STUDIES, TESTIFYING ON BEHALF OF THE
AMERICAN PUBLIC HEALTH ASSOCIATION
Dr. Sokas. Thank you. Chairman Walberg, Ranking Member
Wilson, and members of the subcommittee, thank you for this
invitation. My name is Rosemary Sokas, and I am providing these
remarks on behalf of the American Public Health Association.
My testimony will cover three areas. First, OSHA's
recordkeeping rule and its severe injury reporting rule will
help prevent workplace illness and injury and improve
transparency. Second, there is a need to improve accuracy of
information by addressing the problem of underreporting. And
third, APHA supports OSHA's efforts to protect vulnerable
workers from retaliation for reporting workplace illness or
injury.
OSHA's new recordkeeping rule will bring injury and illness
reporting into the 21st century through an efficient Web-based
mechanism that allows employers to upload information they are
already collecting. This rule does not impose any new
recordkeeping responsibilities, but rather requires the
information to be electronically transmitted.
Personally identifiable information will not be collected
by OSHA, so that should alleviate most of the privacy concerns.
Accurate and timely information is important not only to
identify problems but to make sure that solutions work. With
OSHA's severe injury reporting program, as you have heard
already, the employers are now reporting hospitalization,
amputations, and loss of an eye, and OSHA has had the chance to
investigate and to encourage the employers to investigate over
10,000 severe injury cases.
One example of immediate benefit is that grocery stores,
which are only rarely investigated by OSHA, turned out to be a
leading locust for amputations. This information helped
pinpoint problems with food slicing and allowed OSHA to provide
outreach and compliance assistance. In some cases, a single
sentinel event may serve to alert the industry to an
unrecognized hazard.
Public health agencies at the State and local levels will
now have worksite data to evaluate the impact of their policies
by comparing baseline and follow-up data across a particular
industry as well as by conducting comparisons with States that
have different programs or regulations.
Industry associations and academics will have access to
information across a large enough population to be able to draw
meaningful conclusions.
OSHA's rule takes needed steps to address underreporting, a
problem that has been well reported by GAO investigations, as
well as BLS, as well as academics.
NIOSH has conducted a series of health hazard evaluations
in poultry processing where in one plant, fully 34 percent of
the workforce, 64 out of 191 people, met strict case
definitions for carpal tunnel syndrome while only four cases
had been reported on the OSHA logs during the previous four
years. When surveyed, 20 workers described work-related illness
or injury meeting OSHA's criteria for recordkeeping, but only
one of these incidents was recorded in the log for that year.
Aggressive return-to-work policies can suppress reporting.
I have reviewed cases in which workers were driven to work on
the day of the surgery or the day after while still on narcotic
medication in order to reduce the days away rate.
The OSHA record is full of reports from workers in a
variety of industries who received demerits when they suffered
an injury or go through safety and health investigations that
focus on punishing the worker, including threats of firing.
As OSHA's chief medical officer, I interviewed poultry
workers who impressed on me the widespread fear of job loss and
a sense of fatalism among many that they had grown used to
living with pain and disability from their jobs. The particular
corporation not only failed to protect its workers but failed
to protect its products, and was subject to then the largest
beef recall in U.S. history and went bankrupt.
High-performing organizations, on the other hand, will
encourage the reporting of hazards and near-miss events and
reward rather than discipline workers for identifying hazards
and solutions.
Data collection is not a paperwork exercise. It is a tool
to identify problems and ensure that solutions work.
I worked in a hospital that tried to reduce needle stick
injuries by installing boxes to dispose of the sharps in
crowded rooms, where they put the boxes too high and the nurses
got stuck when they went to put the sharps in. Had those nurses
been prevented from reporting by being shamed or criticized, we
would never have found out that in fact the boxes were a
problem and been able to fix the problem.
During OSHA's comment period, APHA urged OSHA to recognize
and discourage attempts to systematically suppress illness and
injury reporting, and even carpenters have expressed concerns
about loss of jobs from reporting.
I am going to close with two quotes from a researcher at
Duke who found carpenters saying things like, ``With my
company, people are afraid to report injuries even when they
get hurt because they will lose their jobs, not immediately,
but in like two or three months when it blows over, you are
fired.'' That is the concern we are grateful to OSHA for
addressing.
[The statement of Dr. Sokas follows:]
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Chairman Walberg. Thank you, Dr. Sokas. I will now
recognize Mr. Sapper for your five minutes of testimony.
TESTIMONY OF ARTHUR G. SAPPER, PARTNER, McDERMOTT WILL & EMERY
LLP, WASHINGTON, D.C.
Mr. Sapper. Thank you, Mr. Chairman. Mr. Chairman and
members of the subcommittee, I am testifying here about a
concern of the rule of law. OSHA is behaving like an imperial
bureaucracy. It is trying to do what simple logic indicates is
impossible, to extend the statute of limitations by merely
amending regulations.
In the Volks case, which I had the privilege of appearing
in, the U.S. Court of Appeals for the D.C. Circuit held that
the statute of limitations in the Occupational Safety and
Health Act means what it says, that no citation may be issued
following the expiration of six months after the occurrence of
a violation. OSHA had been issuing citations against employers
alleging violations as old as five years. The D.C. Circuit said
OSHA could not do that, and it spoke unanimously on that point.
Nevertheless, OSHA is trying to get around that court
decision by merely changing its regulations to state that an
employer is under a continuing obligation when the Court of
Appeals said there is no continuing obligation, you cannot do
that.
The court specifically told OSHA that the idea of extending
the statute of limitations by merely amending its regulations
is absurd and madness, ``There is truly no end to such
madness.''
Not only that, but the United States Supreme Court in the
Toussie case held that questions of the statute of limitations
are matters of legislative, not administrative decision. The
statute itself, apart from the regulations, must justify what
the agency is doing.
Most troubling of all, OSHA's proposal, which it has
published in the Federal Register, would defeat the core
purpose of the statute of limitations, to prevent the bringing
of stale charges. Here, the charges would be as stale as five
years.
By the way, in the Volks case, in the years since the
alleged violations occurred, one of the recordkeepers had died,
crippling the employer's ability to defend. OSHA's proposal
ignores the effect of staleness.
The Committee should make clear to the administration that
it may not do this. It is also troubling that OSHA has ignored
the literal effect of its proposal. As Judge Garland's
concurring opinion in the Volks case points out, it would
``obligate an employer to constantly reexamine unrecorded
injuries and illnesses.''
The cost of constant reexamination of unrecorded cases, of
every day reexamining whether or not an unrecorded wound should
have been recorded would be staggering, $2 billion I estimate
for just a single unrecorded case. Yet OSHA itself estimates
that the benefit of its proposed regulation would merely be a 1
percent increase in the compliance rate.
The Committee may ask why OSHA thinks it may do such
questionable things. There are two basic reasons, in my view.
First, the Federal courts under the Chevron and Auer doctrines
have told agencies that they, not the courts, are the
authoritative interpreter of statutes and regulations.
This doctrine gives agencies enormous power, and in my
experience, contributes to their sense of arrogance, for
agencies almost never think they are unreasonable and they will
not get deference.
Second, the Office of Management and Budget has an office
called Information and Regulatory Affairs, OIRA. That office
has been reluctant to question OSHA's representations that
their proposed regulations are not significant within the
meaning of Executive Order 12866.
That reluctance was particularly striking in this case
because OSHA's reasoning on costs made no sense. It completely
ignored the cost of what Judge Garland called ``constant
reexamination.''
OSHA's proposal clearly met another criterion for
examination under the executive order, that the proposal
``raises novel legal issues.'' I submit that whether a mere
regulation can effectively override a statute of limitations is
certainly a ``novel legal issue.''
I thank the Committee, and I would be happy to answer your
questions.
[The statement of Mr. Sapper follows:]
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Chairman Walberg. Thank you, Mr. Sapper, for your
testimony. Now, I recognize the gentleman from Minnesota, the
Chairman of the full Committee, Mr. Kline, for his five
minutes.
Mr. Kline. Thank you, Mr. Chairman. Thank you to the
witnesses for being here, excellent testimony.
Ms. Sprick, you have a fascinating story, a very successful
business. I have a note here that says Sprick Roofing has
worked for more than five years without a time loss accident.
You tell us you have a safety incentive program, and I would
assume that this program is contributing to your company's
really successful safety record.
Could you expand for us on how you think OSHA's actions
would hinder your efforts to continue to implement this
successful safety program?
Ms. Sprick. Thank you. Our safety program, safety incentive
program, is based on following the rules and regulations OSHA
has outlined, as well as beyond that, things that we have
identified through our internal incident reports, to track and
look at trends of potential injuries that could occur.
I am afraid that if OSHA takes away those incentives, then
my employees will not--incentivizing positive behavior is
basically what we are doing. I am afraid taking that away will
just give our employees the impression that it is not as
important.
Not only do we do safety incentives, we do quality control
incentives, we do all across the board. We do several different
things to incentivize our employees to do the right thing and
reward their positive behavior.
I am afraid since safety is probably the most important of
anything we do, taking away that incentive and that impression
that it is not important is concerning to me.
Mr. Kline. Thank you. Mr. Chairman, I yield the remainder
of my time to you.
Chairman Walberg. Thank you, Mr. Chairman, I appreciate
that. I certainly have plenty of questions I could ask, so
thank you.
Let me follow on that, Ms. Sprick. Recording an injury is
not preventing an injury. I think we could agree on that.
Ms. Sprick. Yes.
Chairman Walberg. Can you explain the safety protocols your
company employs to prevent workplace injuries for us?
Ms. Sprick. What we do to prevent injuries?
Chairman Walberg. Yes, the protocols that you have in
place, what are those?
Ms. Sprick. Well, we do a safety orientation. Every job has
a particular safety plan that we analyze on every job before we
go out, so we can be sure we have all our bases covered. We do
safety meetings daily, and also for each job, and then we also
have job site inspections. Our safety director goes out and
does our own internal inspections during the course of the work
that is being done to check and make sure that everything we
discussed to be done is happening according to plan.
Chairman Walberg. This is done daily with the employees on
the site or back at the office?
Ms. Sprick. The job site inspections or the safety plan?
Chairman Walberg. The safety plan, the safety instructions.
Ms. Sprick. It starts at our office. It actually starts at
the bidding process when we look at a job and we look at the
particulars of a job, look at what needs to be done, and then
from there once we get the job, it starts at the office with
the crew before they go out. Once they go out, they are
inspected on the job as well.
Chairman Walberg. Thank you. Mr. Sapper, your testimony
highlights the Volks decision, overturning OSHA's attempt to
issue citations for an alleged violation of Occupational Safety
and Health Act more than six months old, as you indicated.
Does OSHA have the authority to overturn a court ruling
through a rulemaking?
Mr. Sapper. No, Mr. Chairman, it does not, and I will be
happy to explain why. The Supreme Court has already said in the
Toussie case that questions of limitations are statutory
questions, not regulatory ones. As I said before, the D.C.
Circuit in the Volks case said that OSHA's attempt to
manipulate the result by merely changing its regulations would
be ``madness'' and ``absurd.'' OSHA--
Chairman Walberg. Madness and absurd?
Mr. Sapper. Madness and absurd. Now, in fairness to OSHA,
the court was talking about a slightly different amendment to
the regulations, but these two amendments would have the same
effect.
Chairman Walberg. Same principle.
Mr. Sapper. Yes, they would have the exact same effect. In
principle, they would still be absurd and madness.
Chairman Walberg. Let me ask, why do you believe OSHA is
relying on the concurring decision rather than majority opinion
in the rulemaking process? Does holding of the case come from
majority opinion or concurrence?
Mr. Sapper. I think the agency understands that the
majority opinion of the court is against its position, but it
is using the concurring opinion or it is using what it thinks
the concurring opinion says.
The concurring opinion said regulations do not permit OSHA
to do what it is doing. OSHA thinks, okay, then we will just
change the regulations. What OSHA ignores is Judge Garland's
very astute observation that if OSHA tried to do that, it would
be imposing a duty of constant reexamination, and OSHA has
refused to own up to that effect.
In fact, before the Advisory Committee on Construction
Safety and Health, when that very question was asked, OSHA said
no, no, no, there is no duty of constant reexamination. Well, I
am afraid the agency is being inconsistent on this point. It is
not owning up to the actual effect of what its proposal would
mean.
Chairman Walberg. Thank you. That was Judge Garland's
opinion. I need to move on. I now recognize the Ranking Member,
Mr. Scott.
Mr. Scott. Thank you, Mr. Chairman. Mr. Sarvadi, you
indicated in your testimony on page 11 that nothing in the OSH
Act gives OSHA the authority to publish workplace injury and
illness data, is that right? Is that your testimony?
Mr. Sarvadi. I do not believe I quoted that section but,
yes, it does give OSHA the authority to publish data on
workplace injuries and accidents in aggregate form. It does not
address the question of disclosing individual employee
conditions.
Mr. Scott. You say it is a clear usurpation of legislative
power. The act in Section 8(g) says, ``The Secretary of Labor
and the Secretary of Health and Human Services are authorized
to compile, analyze, and publish either in summary or detailed
form, all reports or information obtained under this section.
The Secretary and the Secretary of Health and Human
Services shall each prescribe such rules and regulations as he
may deem necessary to carry out their responsibilities under
this act, including rules and regulations dealing with
inspection of employer's establishment.''
The language is ``publish either in summary or detailed
form,'' what does that mean?
Mr. Sarvadi. To me it means summary form, meaning total
accident statistics or whatever the statistics they collect. I
believe it refers to the BLS survey, and it reflected at the
time the system that was in place that was operated by the
National Safety Council. There was some criticism of it by
members of Congress at the time, but what Congress was trying
to do was improve on what had been the system in place. Nowhere
were individual company or establishment data being published
by the National Safety Council--
Mr. Scott. Just to remind you, the words are ``in summary
or detailed form, all reports or information obtained under
this section.''
Is there any information that is required to be published
under this rule that is not already being collected?
Mr. Sarvadi. I do not believe it is, but it is not being
provided to OSHA in the detail they are talking about. It is
available to OSHA in an inspection, and it is the first thing
that inspectors look at when they come through the door.
Mr. Scott. But the information is already being collected.
Let me ask another question. Ms. Sokas, can you indicate why it
is important to collect this data and what data is not being
reported because of threats?
Dr. Sokas. I am glad to answer that question. I would just
like to briefly state--
Chairman Walberg. Use your microphone.
Dr. Sokas. I would just briefly like to say, if I might,
that the proactive program that Ms. Sprick discussed is
actually the kind of incentive programs that the GAO report was
positive about in 2012. The kind that it was criticizing were
the ones where people got bonuses based on not reporting
illnesses, that kind of thing. This is exactly the kind of
thing that is supposed to happen.
The question about the suppression of information through
punitive responses to reporting a hazard or reporting an injury
shows that--as an example, when I did chart review of people
who had, unfortunately, died from being in a confined space
with solvents or some other kind of chemical exposures where
they were overcome.
Almost inevitably we would find examples in that person's
life where they had previously either passed out at work or
complained at work, and the early adverse information was not
taken seriously, was not acted upon. People were just kind of
revived and resuscitated and sent back into the same location,
and that is when they died.
This is the kind of thing that we hope to prevent by having
the information acted upon as opposed to suppressed.
Mr. Scott. Is this level of information disclosed now under
the mine safety laws?
Dr. Sokas. Absolutely.
Mr. Scott. Have there been any frivolous lawsuits or any
adverse effects?
Dr. Sokas. Not to my knowledge. You can go online for MSHA
and find all kinds of detailed information equivalent to or
more than what OSHA is now going to be publishing. That
information is readily available and has been used by MSHA,
which is trying to deal with--as you can imagine, the mining
industry is among the most hazardous--they are able to actually
target effectively and work with employers. They have had
substantial success with that.
Chairman Walberg. I thank the gentleman. I recognize the
gentlelady from New York, Ms. Stefanik.
Ms. Stefanik. Thank you, Mr. Chairman. Thank you to our
witnesses for your testimony today. Data, as we know, has
become increasingly present in our everyday lives, from data at
worksites to Fitbits, which I happen to not be wearing mine
today. We are exposed to endless quantifications of what we do
on a daily basis.
This expansive collection of data can be extremely helpful
when it is utilized with purpose and context to achieve a
needed goal. We must carefully consider the implications on our
Nation's small businesses when this collection solves no
particular problem.
As we know, it serves no purpose to collect the data just
for the collection sake, when we should be focusing our efforts
on preventing workplace accidents in the first place.
Ms. Sprick, in your testimony you indicate that the data
the department is requiring from you lacks important context
and, therefore, will not help you as an employer improve worker
safety.
Do you have suggestions for improving the department's data
collection practices, and how might the Federal Government
better collect context along with the data?
Ms. Sprick. Well, if they are just collecting the injury
and illness side of things, it is just telling one side of the
story, and they are posting that information, and it gives
absolutely no context or information about how it occurred, the
circumstances, the size of business, the number of hours
worked, the part that will give meaning to that information.
If they are just posting that information only and you are
comparing company A to company B and they each have 2 injuries
reported, the exact same injuries, you do not know that company
A has 100 employees and company B has 2. Company B is the worse
company of the two, but you do not have that context to be able
to evaluate that.
To me, that is, one, unfair, and it is not showing the real
story, and the other part of it is that I will have to be
trying to defend that if I am even given the opportunity, if it
would go that far. They may just look at that information and
say okay, that is all I need to know and move on.
Ms. Stefanik. Thanks for the comments. I think continuing
to get feedback on the context, to make sure this data is
viewed, whether it is the size of the business, whether it is
the hours worked, is extremely important. Data is one thing,
but the context in which the data exists is extremely
important.
Ms. Sprick. The circumstances as well. If one of my
employees slips and falls on a sidewalk, it will be listed as a
fall. The assumption will be made because I am a roofing
contractor that person fell off the roof. That kind of
information would be helpful.
Ms. Stefanik. Thanks for those comments. I yield back. I
yield to Mr. Walberg.
Chairman Walberg. Thank you. I see good time on the board.
Thank you. Ms. Sprick, let me go on with some practical
examples coming from your experience. What are some specific
actions that OSHA could undertake if they were willing to help
your company further improve on its safety program? The program
you defined a bit, how could they help?
Ms. Sprick. I can use the example just in Oregon. We have a
very good and collaborative relationship with the Oregon
compliance officers in our area. We work with them continually.
Sometimes there is a difficult building configuration that
we want to make sure we are following procedures and we are
interpreting the regulations appropriately. We bring them in.
We set up a safety plan and get their suggestions and work with
them.
It is more of a collaborative effort that I feel in the big
picture will help everyone in the long run. What I think really
should happen is they should set up a task force with the
stakeholders that are involved, having to deal with these
regulations, bring in the trades, bring in the government,
National Safety Council.
People that have real life experience and know what it is
like out in the real world, they are just not sitting around a
table and coming up with these ideas and thinking this is a
good one on paper, when in reality, there is no reality.
I think that is the place they really need to put their
efforts, and also look at employers and incentivize and reward
those companies that are doing the right thing versus being
punitive and punishing the good ones for the few bad apples
that are out there.
Chairman Walberg. Mr. Sarvadi, OSHA's public reporting
regulation also appears to create new whistleblower
protections. Did OSHA publish this in the proposed regulatory
text, and were stakeholders given an opportunity to evaluate
and comment on this provision?
Mr. Sarvadi. Unfortunately, Mr. Chairman, they did not. It
was added as a supplemental proposal, but they did not include
anything about the language that would be used or give people
an adequate opportunity to reflect on it.
I would point out that they already have sufficient
authority under section 11(c). The difference is under 11(c), a
complaint initiates the investigation and OSHA's actions. What
OSHA is trying to do is create an opportunity for them to issue
a citation when they think they have a retaliation claim
without waiting for the complaint.
I do not know if that is a good thing or a bad thing, I
think that is what the hearings and comments would have
addressed if we had the opportunity to do so.
Chairman Walberg. The gentlelady's time has expired. I now
recognize Ms. Wilson, Ranking Member, for her five minutes of
questioning.
Ms. Wilson. Thank you. First of all, let me thank you, Dr.
Sokas, for wearing red today. This is our ``Wear Red''
Wednesday. Thank you so much.
Your testimony noted that the Government Accountability
Office has issued several reports exploring the issue of under-
recording of workplace injuries and illnesses. One GAO report
examined employer and worker pressure on health care providers
to downgrade severity of injuries in order to ensure that the
injury would not be classified as an OSHA recordable incident.
What did GAO find, and is this something you have
encountered?
Dr. Sokas. Thank you. Yes, I am an active member of the
American College of Occupational and Environmental Medicine. It
has been on the radar screen for our members for years.
The GAO found that over half of the healthcare
professionals who were surveyed had experienced some pressure
from management to downgrade the treatment being offered in a
particular instance in order to make it not recordable, use
Steri-Strips, not sutures, that kind of thing, to the point
where they felt uncomfortable. Almost half felt the same
pressure from the employees.
As a practicing physician, I felt the same thing, where the
workers are too afraid to have either a workers' comp case
filed or to have anybody call their worksite, because they are
afraid of being fired, of punitive responses.
The pressure from both the workers and from the employers
has impacted the practice of occupational medicine and
occupational health nursing and other people as well,
clinicians in general.
I did also want to mention that I think the detailed
information on context for reporting is available already in
the OSHA Form 301, and that is what the larger companies are
now being required to submit. The fact that the smaller ones
are not being required to submit it, I do not think it would be
difficult to submit it voluntarily if people wanted to do that,
to address that one concern that was raised.
Ms. Wilson. GAO issued a report in April 2012 and called
upon OSHA to clarify its guidance on safety incentive programs.
Did GAO find that safety incentive programs that are tied to
low injury and illness rate may lead to underreporting, and how
has OSHA accomplished this in its rule?
Dr. Sokas. Exactly. That is exactly the distinction between
the good incentive programs that encourage people to recognize
hazards and do something about them and give training, and the
bad programs that are based on a single number that encourages
people not to report the injury, not to report the illness
because somebody is going to lose money in their bonus or
somebody will lose the ability to participate in a positive
manner.
OSHA in this report, in this rule, is very carefully making
the distinction between those two kinds of incentive programs
and saying the ones that have the effect of chilling, of
reducing people's willingness to report, are the ones that they
are going to look at carefully. The other incentive programs
that promote healthy recognition of hazards and solutions to
them, they obviously encourage.
Ms. Wilson. It appears as if opponents of this rule contend
that underreporting is not systemic, it is not a systemic
problem in American workplaces.
They also claim OSHA has been unable to establish that
employer policies, such as safety incentive policies, drug
testing, or disciplinary policies in any way discourage
employees from reporting injuries and illnesses. Is OSHA
chasing a non-existent problem? What do credible studies tell
us about this?
Dr. Sokas. There are numbers of studies from the academic
literature and from the GAO reports that you mentioned, from
the Bureau of Labor Statistics itself, that show that
systematically there is underreporting in OSHA illness and
injury logs and in BLS data itself.
It varies depending on the methods that are used, but if
you go to a workplace and interview workers, or if you take any
survey where you interview people and ask the questions, you
will always find under-recording in the OSHA logs for a variety
of reasons. Either people do not want to report to their
supervisors or the supervisors do not want to record it, for
many different motivations, but the information--there is
always a difference there in all of the studies.
Ms. Wilson. Thank you.
Chairman Walberg. The gentlelady's time has expired. Now, I
recognize Mr. Pocan for your five minutes.
Mr. Pocan. Thank you, Mr. Chairman, I appreciate it, and
thank you to the witnesses. I am usually not too much at a loss
of words at a hearing, but this one, I have to admit, I am a
little surprised that there is opposition to this rule
specifically. I know it was mentioned we feel like we are back
to the 1930s. I was thinking more a little before that, the
turn of a century, when workers had absolutely no rights and we
did not record these sort of things, and there was no
recognition whatsoever.
When I hear people talking about OSHA and the ``madness''
and the ``arrogance,'' and how after six months something is
stale--losing a limb is not stale after six months, losing a
family member is not stale. Those words seem to drip in a
little bit of arrogance. I do have a little bit of non-
understanding on that.
I do have one question, Mr. Sarvadi. I know your
association is largely funded by the U.S. Chamber and NAM, and
both of those organizations opposed the creation of OSHA in the
early 1970s. Do those organizations still oppose the creation
of OSHA?
Mr. Sarvadi. I do not recall they opposed it, and I do not
know what their position is--
Mr. Pocan. They did. No problem, thank you. I will reclaim
my time.
Mr. Sarvadi. I would say--
Mr. Pocan. I reclaim my time, sir. Thank you.
Mr. Sarvadi. If I could--
Mr. Pocan. No, no. Actually, I am reclaiming my time, thank
you. The problem is both those organizations did. I understand
they have a beef with the overall concept.
You said it is not their job to save lives. I looked at the
mission of OSHA very clearly. I think the public expects--if
you read the mission, it is to make sure you are saving lives.
Of course, that does happen to the employer, and I am most
sympathetic to Ms. Sprick, because you list your concerns. I am
a small business owner as well.
I look at the things you brought up, and I think what came
out of the hearing--sometimes people like to create fear among
small business owners, and they come here--I am just really
glad we have a small business owner. Usually, they just bring
us lawyers, and they all get paid to say stuff. You and I are
just trying to make sure we are employing people and doing a
business.
Some of the things you brought up, I think, did come out
around the inadvertent public disclosure for individuals, that
information will not be collected, so we do not have to worry
directly on that.
On the context of information, if you are over 250
employees, you are going to have that incident where you write
down if it was a fall but there is going to be more written
about it, so you are going to have the broader context. If you
are under 250, which I would assume are most of the roofing
association's members, at least in my district, they are not
250 employees or more, it is not even mentioned, a fall. It is
very much days loss data, a simple line listing that is
published.
I do not think you are going to have that problem that is
out there. For the bigger employers, they will have the rest of
the context of information put there, and I think that is going
to be very helpful.
I believe there was a concern about the misuse, harmful to
employers. I understand what you are saying, but at the same
time, I look at the comments from the former head of Alcoa, who
talked about why this has been good for his business.
In fact, he said when they had someone who passed away,
that made them really look at what they did, and during a
period of 13 years that he was there, they dropped the rate
from 1.86 to .20 loss rate, and their market value jumped from
$3 billion to $27 billion, and their net income went from $200
million to $1.48 billion. I think the context of the person's
comment is it actually made them focus on things.
If I go to New York City and I want to have Thai food, I
see two Thai restaurants, one has an A and one has a C, unless
they have really, really good Thai iced tea that I know is
worldwide at the C, I am probably going to the A. That is part
of why we collect that information.
I think many of your concerns will probably be more
addressed, and I think the fear factor is out there.
I do have a very specific question for Dr. Sokas. You
started talking about the one example with the nurses. This has
been collected now for a year. Can you provide how this rule is
having a difference? Do you have some examples that you can
offer? I think that might be helpful in the full context.
Dr. Sokas. There is a great report that OSHA put out, David
Michaels wrote, about what has happened with the 10,000 serious
cases that the Ranking Member already alluded to. One of the
companies, for example, had hospitalization for a heat stress
injury, and then they went back and they decided to change
their rest breaks. They had water available. They started
installing fans. It was a waste company. Another company had
the problem with the amputations, as you heard. What they did
was they went back and installed guards.
The goal of all of this is to find the problems, have the
employer, wherever possible, find and fix them, and then share
the information across the industry so other people do not have
to wait and experience their own tragedies before they can
identify a problem and then fix it.
The report is full of those kinds of examples. I think OSHA
used its scarce resources to go out to maybe 40 percent of the
locations reporting, but fully 60 percent or more wound up
having the employers themselves respond and fix it before the
next person could lose an arm.
Mr. Pocan. Thank you.
Chairman Walberg. I thank the gentleman. Now, I recognize
the gentleman from California, Mr. DeSaulnier.
Mr. DeSaulnier. Thank you, Mr. Chairman. I want to thank
the witnesses, too. Like my colleague from Wisconsin, having
owned small businesses, restaurants, for many years, I always
struggled with my aversion for unnecessary regulation and the
overhead that caused versus what Mr. Pocan said, if you do the
right thing, you do not have these problems.
I had a bigger problem with competitors, usually larger
food and restaurant companies, that clearly were run on a path
to the bottom.
Ms. Sprick, my sort of frustration is if you do the right
thing, as you do, in your industry, and certainly in
California, we have a lot of evidence that in the roofing
industry there are a lot of non-licensed contractors who were
not paying workers' compensation, were not paying payroll
taxes, and you are doing the right thing.
Certainly, there is a general conveyance or confluence of
interest where in your interest for your company and other
companies like this, you want to get rid of those people who
are non-licensed and are not doing workers' compensation much
less reporting those incidents.
Could you just comment on that?
Ms. Sprick. We have the same problem in Oregon,
unfortunately, of unlicensed contractors. It is not only the
reporting part but the non-context. If they are unscrupulous in
business practices, they are going to be unscrupulous in how
they are going to use that information and how they are going
to take that information out of context and use it however they
see fit. That is my concern.
The concern is not only the accident itself but the context
to size of business, how long they have been in business. You
are just looking at one side of the story, and as we all know,
how one side of the story can be swayed in any way, shape, or
form that you see fit. That is my concern.
My greater concern is the electronic reporting of this is
going to provide another conduit for breach of potential
privacy that I protect fervently in my company to protect my
workers, so you are exposing me to another way that I, myself,
could be held up for liability but more so, that my workers'
private information could be accessed either inadvertentedly--
the rule that I saw, it said the information will be redacted.
It does not say it will not be collected. That is where my
concern is as well.
Mr. DeSaulnier. If I could just interrupt, Dr. Sokas, can
you respond to that? There are contentions, not just as has
just been expressed, but that there will be frivolous lawsuits
because of this information. I understand the Department has
for 10 years gotten information from 80,000 employers. I am
just wondering if you could respond to both the concern, but
also the fact that we have already been doing this for some
period of time and it does not seem to have led to frivolous
lawsuits.
Dr. Sokas. Two things. One is that my understanding of the
rule--I think there is a little confusion because there is this
one page that I think says it differently. My understanding of
the rule itself is that they are not going to collect those
pieces of information, worker's name, address, all those pieces
of information would not be collected, and certainly not from
small businesses--they are not collected by anybody, even the
large businesses. That is not really--should not be a problem
at all.
The issue with MSHA is even when they do present
information, that is available, you can go online. I am unaware
of any time when they have been sued or one mining company has
gone after another. There is a lot of other stuff that goes on
in mining, but that is not one of them.
Mr. DeSaulnier. Dr. Sokas, maybe you can explain, is there
anything else, that this information will help in terms of
research for prevention?
Dr. Sokas. There is a ton of stuff. For example--
Mr. DeSaulnier. What are a few of the things?
Dr. Sokas. One, for example, there is a lot of places that
are going to green cleaners for schools, for hospitals, all
kinds of places, to be more sustainable environmentally, and
the problem is you do not really know if the new procedures are
better or worse for the people who are doing the cleaning.
There are microfiber mops that use less water.
Does that reduce musculoskeletal problems or does it
increase them? Unfortunately, we do not have a musculoskeletal
column, but nevertheless, you could do total injury to see
across this whole industry, all these people are using green
cleaners, do they have fewer respiratory complaints? Do they
have fewer skin complaints? Those kinds of things.
Currently, you have to have a research assistant or a
student or you have to kind of traipse out to the place, talk
to the people, get the information, and it is virtually
impossible to do it on a scale that would allow you to get
meaningful statistics.
Mr. DeSaulnier. Thank you. I yield back.
Chairman Walberg. I thank the gentleman. I recognize myself
for five minutes of questioning. Mr. Sarvadi, safety experts
discussed the difference between leading indicators, such as
preventative risk management tools, lagging indicators, such as
injury and illness rates, leading/lagging, which indicate when
a worker has not been protected.
Do you agree injury and illness records are lagging
indicators?
Mr. Sarvadi. They are, certainly. We are looking in the
rearview mirror because we are only looking at what happened in
the past.
Chairman Walberg. Should OSHA be relying on lagging
indicators?
Mr. Sarvadi. I would say OSHA probably ought to listen to
its own advice. They have been telling employers for more than
10 years that employers should be providing and looking for
leading indicators and should be focused on the leading
indicators. I think they might take their own advice.
Chairman Walberg. Hard message but an appropriate message.
For calendar year 2015, I was struck with the fact that OSHA
received fewer than 11,000 reports of hospitalizations and
amputations, significant problems.
While the regulatory proposal suggests that OSHA would
receive 117,000, OSHA believes fiscal year 2015 reports
represent only 50 percent of annual occupational injuries. That
is a lot of cover, if that is true.
Have you seen any evidence from OSHA or other studies that
would justify OSHA's assumption?
Mr. Sarvadi. I have not. I think the numbers that they are
seeing are probably realistic based on my experience over the
years and in paying attention to the trade press and that sort
of thing. I think the numbers that we are seeing are probably
very realistic in terms of what is actually happening.
Chairman Walberg. We would certainly conclude there might
be some out there--there are construction workers under union
representation who indicated they held back reporting because
of fear of being hurt on the job or being fired, and yet they
had union representation to protect them from that, so that
seems a little bit strange, that would be an actual experience,
that would be something OSHA was hiding.
Mr. Sarvadi. I think the point that I was trying to make in
the testimony is we are focusing an awful lot on keeping track
of things that happened in the past and not taking advantage of
what we know already to make corrections in the future.
The anecdotes that we have heard about these things being
underreported, misreported, certainly, those kinds of things
happen, given the number of questions that we get in our office
from people in the employment community who are asking is this
case recordable, how do I record it, suggests there are bound
to be some errors.
My point is if the BLS approach is correct, and it is
statistically reliable, then all this effort to generate more
information about underreported or misreported cases is not
going to change the outcome. It is not going to change the
understanding of what the real significant problems are.
What I would suggest is OSHA take advantage of what it has
right now and refocus its efforts to begin looking at ways for
employers to work together with their employees to come up with
better systems, like the one Ms. Sprick has talked about.
Chairman Walberg. Thank you. Ms. Sprick, can you tell what
you do to protect your employees' personal health information?
Ms. Sprick. Can I? I am sorry, I did not hear what you
said. Yes. For hard copy, they have separate medical files that
are stored in separate locked filing cabinets in a separate
locked fireproof room within our office that has security
cameras and is also monitored with security systems.
Our electronic data, our firewalls are continually tested
for hacking, which is my other concern, not only inadvertent
disclosure but intentional hacking is a very large concern of
mine, as it should be all of ours. We hear it in the news
almost daily.
My IT guy is a former professional hacker, so companies
actually hired him to sit outside their office and see how long
it took him to get into their system. That is my guy that
protects my electronic data from anyone being able to access
it.
Chairman Walberg. This would cause you some concern going
the direction--it is going away from the protection that you
are providing, including using a professional hacker?
Ms. Sprick. Absolutely, yes. For me, it is one more conduit
for somebody to be able to access information that is private.
Also, the concern about the information being redacted. I am a
small company. If one of my guys breaks their ankle and it is
posted on a Web site saying this person broke this ankle, it is
pretty easy to figure out which guy that is. Their personal
health and privacy has been breached, in my opinion. That is
another way that I am concerned.
Chairman Walberg. Thank you. I want to thank each of the
witnesses for your time and attention. You have been a valuable
reference tool and experienced tool for us today in developing
our context and understanding of what is going on.
Our time has expired, so now I recognize my friend and
colleague, Ranking Member Wilson, for her closing comments.
Ms. Wilson. Mr. Chairman, the law is clear: Section
8(c)(2), Section 8(g), and Section 24(a) of the OSH Act
expressly tasks the Secretary of Labor with, one, requiring
reporting and recordkeeping on serious workplace injuries; two,
ensuring this information is accurate; three, compiling,
analyzing, and publishing either in summary or detailed form,
all reports or information obtained under this authority.
OSHA's recordkeeping rule is clearly grounded in this
statutory duty and will promote safer workplaces. This rule
will give OSHA the ability to more quickly identify hazards and
target its limited funds to prevent injury reoccurrence.
Publicly available injury data will also help workers that
are advocates for improved safety conditions. It will allow
responsible employers to better understand and develop ways to
mitigate workplace hazards.
We must reject arguments that workplace safety transparency
is incompatible with good business. Nothing refutes this point
more than the work and words of Paul O'Neill, former Secretary
of Treasury under George W. Bush and former CEO of Alcoa, a
global leader in aluminum manufacturing based in Pittsburgh,
Pennsylvania.
In a recent op-ed, Mr. O'Neill wrote, ``Don't fear
transparency, embrace it. A focus on safety, even in the glare
of public scrutiny, will not only help your workers, but it
will also improve your bottom line.''
Mr. O'Neill, upon taking the helm of Alcoa, made a now
infamous inaugural speech declaring his commitment to worker
safety that would catapult Alcoa's profits. In the 13 years,
Mr. O'Neill made worker safety and transparency mission one,
Alcoa saw its market value climb from $3 billion to $27.53
billion, and net income soared from $200 million to $1.484
billion. Today, Alcoa's corporate Web site publishes real time
injury and illness rates.
As Mr. O'Neill states, bottom lines and safety transparency
are definitely compatible and sustainable.
Mr. Chairman, I ask unanimous consent to offer into the
record an op-ed from Mr. O'Neill entitled, ``Don't Fear the
Injury Data.''
Chairman Walberg. Without objection, it will be entered,
and hearing no objection, it is done.
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Ms. Wilson. The OSH Act clearly states that the Secretary
has a duty to ensure the accuracy of workplace injury records
and reports. This rule ensures accuracy by addressing
underreporting that stems from fear of retaliation for
reporting.
As we have heard, workplace safety incentive programs,
although sometimes well meaning, can actually undermine safety
by discouraging employees from reporting injuries. More
egregious policies and procedures punish workers instead of
focusing on addressing workplace hazards.
For example, I have a warning note sent to an employee
after he sustained several injuries over a three-year period.
This note chastises the employee and clearly discourages
reporting.
It states, ``The worker demonstrates a serious lack of
attention to the worker's own safety. The employee was
suspended for three days, stripped of operator classification,
and warned he would be fired should he have another OSHA
recordable injury.''
There is no mention of working with the employee to better
understand the cause of injuries or efforts to prevent injury
reoccurrence. Just blame, blame, blame; blame for the worker.
I ask unanimous consent to enter this warning notice into
the record.
Chairman Walberg. Without objection, it will be entered.
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Ms. Wilson. I applaud OSHA for finalizing rules to improve
worker safety and increase transparency. No working American
should head off to work wondering if today is the day she will
sustain an injury that seriously impacts her life or takes her
life. No mother, father, son, or daughter should dread getting
a phone call informing them that their loved one has been
seriously injured on the job.
We should support OSHA in its efforts to promote the better
injury and illness recording/reporting that leads to safer
workplaces. Instead of holding hearings attacking OSHA's
efforts to promote worker safety, let's hold hearings on ways
we can support OSHA by increasing its budget for better
enforcement, or passing H.R. 2090, Protecting America's Workers
Act, to strengthen OSHA's ability to protect workers.
Finally, Mr. Chairman, I ask unanimous consent to place
into the record letters in support of OSHA's rule from the
following organizations: Public Citizen, American Federation of
State, County, and Municipal Employees (AFSCME), United
Steelworkers, Harvard Kennedy School's Ash Center for
Democratic Governance and Innovation.
I yield the remainder of my time.
Chairman Walberg. Without objection, they will be entered.
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Chairman Walberg. I thank the gentlelady. I thank again the
panel, as well as my colleagues, in taking action or taking
part in this hearing. As we started out the hearing, I think we
made it very clear, Democrat/Republican, employee/employer,
bureaucrat, there is no one that I have met who wants an unsafe
workplace. There is no one who wants to see employees injured
in the workplace who wants to succeed in the workplace or as an
employer.
We are not, thankfully, in the 1920s and 1930s, or even in
the 1960s, as I remember working at U.S. Steel in a plant that
had carried on for many, many years, but workplace conditions
are not what I see now, at least from my perspective of taking
149 workplace visits this last year myself in my district,
seeing workplace environments in steel mills, manufacturing
sites, in small businesses, that do not compare to what went on
in the past.
They are clean. They are up-to-date. They are safe and,
frankly, they are always in an effort of improving.
We certainly do not fear transparency. We want
transparency. We do not fear accuracy in reporting. We want
accuracy in reporting. We also want our regulators to
understand that there are best practices that are better than
anything that are being offered, and there is a context that
needs to be considered as well if you are going to have
transparency and accuracy.
When you refuse to take the advice or even offer the
opportunity for people who live and work and provide jobs and
do those jobs in the real world, you have a problem that has
developed.
We saw the ability, I believe three years ago, when we had
a hearing in this subcommittee on fall protection, and we had
real world testimony coming from some of our Committee members
who were in the industry and knew what went on, and like Ms.
Sprick, had an unbelievably good safety record, were able to
instruct OSHA on the fact that they were going to hurt people
if they took an one-size-fits-all plan on fall protection. We
saw them thankfully back away. They heard good advice with
context, with accuracy, with transparency.
We are, however, in the twenty-first century, and there is
something we did not have back in the 1920s and 1930s, and even
to a great degree in the 1960s, and that is global competition,
massive global competition, that do not deal with some of the
things we put in the way of in certain cases success for our
own industry.
We saw last year $1.9 trillion annual costs to our
employers simply for regulatory compliance costs. We need
certain regulations, but we also need to understand that if we
over regulate or we regulate without rationality and regulate
even worse without context that promotes the value of that
regulation, those costs will increase. Those costs are not
found in our competitors. They have to come up to our
standards. Right now, they are just trying to beat us.
Partnership is what we are looking for. Best practices
primarily developed by business and industry and leading the
way for regulators to understand, pushing things like VPP.
There is a partnership that allows both sides to learn from
each other.
Rather than going in that direction, we continue to push
for more regulation for regulation sake, without consideration
of context and reality.
To my colleagues and others in the room, that is what this
hearing is about, not trying to make the workplace less safe or
give special benefit to employers over employees, it is rather
to make the workplace safe with rational, transparent, and
accurate regulation that comes in.
I, again, thank each one involved this morning in this
hearing, and hopefully, OSHA and other regulators are listening
to our concerns and the reality that comes in life itself.
With no further business to be carried on by the
subcommittee, the subcommittee stands adjourned.
[Additional submission by Mr. Sapper follows:]
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[Whereupon, at 11:37 a.m., the Subcommittee was adjourned.]
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