One sign that anti-OSHA conservatives are getting nervous about articles (and television appearances) highlighting the declining number of OSHA inspectors are articles questioning whether government plays a useful role in protecting workers. In this case, the Reason Foundation, which “advances a free society by developing, applying, and promoting libertarian principles, including individual liberty, free markets, and the rule of law,” has concluded that reducing the number of OSHA inspectors has no effect on workplace safety.
When I see an article entitled Will Deregulation Kill Workers? by Reason Magazine assistant editor Christian Britschgi, normally I wouldn’t bother to give them any undeserved attention, but some of the arguments he uses are, unfortunately, still commonly used by conservatives in the media and Republicans in Congress, and from time to time we need to expose them.
Based on writings by Bentley University economist John Leeth, Britschgi is basically saying that OSHA isn’t needed because “Employers have much stronger incentives than OSHA to provide a safe workplace.” What are these “stronger incentives” that make OSHA enforcement superfluous?
Workers Compensation: Workers comp, they note, grows more expensive with new injuries and accidents. And it’s much more significant than OSHA penalties because “workers comp policies cost employers $91.8 billion in 2014…. Total OSHA penalties in that same year totaled only $143.5 million.”
OK, well first, if those numbers are relevant, then that sounds like a great argument to increase OSHA penalties significantly. But the fact is, because State legislatures and courts have undermined workers compensation benefits for injured workers, workers comp covers less and less of the real cost of workplace injuries and illnesses, according numerous studies cited in a 2015 OSHA report, Adding Inequality to Injury:
workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.
Moreover, most workers injured or made ill on the job don’t even receive workers compensation and vulnerable and low-wage workers fare even worse. Finally, compensating workers for occupational disease is almost non-existent. One study estimates that as many as 97 percent of workers with occupational illness are uncompensated.
Labor markets: Workers would rather work where it’s safe, so they will naturally take jobs working in safer companies rather than unsafe companies. Unsafer companies will therefore be forced to pay workers more to attract them to their unsafe workplaces. This will provide a natural incentive for employers to make their workplaces safer because if their workplaces are safer, they won’t have to pay workers as much.
Now I’m not a credentialed economist, but even I can find major holes in this theory. First, such a theory relies on workers having perfect information about which companies are safer than others. Now, this is interesting, because that’s exactly the theory the Obama administration used when issuing its electronic recordkeeping standard. Companies would be required to send their injury and illness information to OSHA and OSHA would post that information, allowing workers to choose safer companies. What’s interesting is that corporate America and Trump’s OSHA has done everything it can to ensure that employer safety records are not made public, from discouraging press releases to opposing the OSHA recordkeepign regulation, claiming that such information unjustly “shames” employers.
The “labor market” theory also assumes that workers would be able to simply and easily move from one (unsafe) employer to another without any loss of income –even assuming there is a safer employer down the street. Obviously that’s often not possible and in any case, that’s easier for high wage workers to lose a little income by changing jobs than lower wage employees who may be living paycheck to paycheck. And if there are enough desperate workers who need a job, any job, that higher paying, unsafe job isn’t going to pay more for very long. You’ll have the more common race-to-the-bottom, rather than a race to the top.
Finally, this equation puts workers in a position of choosing between safe jobs or better pay. If you happen to be in a post-Obamacare world with no health insurance and have a sick kid, you might be inclined to take the unsafe, higher paying job. This is not a choice that we want workers to be forced to make — either from the viewpoint of morality, or the general public welfare. The whole point of the Occupational Safety and Health Act was to eliminate the need for workers to ever have to choose between their jobs and their lives, or better pay and their live.
The ability to sue over workplace injuries and health hazards: Huh? Employees don’t have the ability to sue over workplace injuries. The deal when workers compensation laws were first created is that this would be a “no-fault” system; workers give up the right to sue their employer, in return for relatively certain access to benefits following their injury. (Or at least that was the theory.) Britschgi would have known that (and taken safety and health more seriously) if he had read this article and listened to the accompanying video.
That fact that Britschgi, an assistant editor of Reason Magazine (and presumably his superiors) don’t know that workers can’t sue their employers should have sent this article directly to my Trash folder, so why am I bothering to even address it? I mean, for all I know, he’s 18 years old and this is his first job. Give the kid a break.
Because, as I said above, clearly he is not alone in his ignorance. There are undoubtedly lots of other people out there who think that workers can sue their employers. And easily move to safer jobs. And just rely on workers comp if they get hurt.
The bottom line is that more cops on the beat will make drivers drive more safely, just as more OSHA inspectors will make employers provide safer workplaces. It’s as American as law and order.
This blog was originally published at Confined Space on January 16, 2018. Reprinted with permission.
About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).