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Meatpacking industry got its way on COVID-19 policies, and workers died

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When the meatpacking industry was hit with major coronavirus outbreaks back in the spring, there was no question about making workers’ lives a priority—it was always out of the question. This is an industry with high injury rates and low wages for its vulnerable population of workers, with its many people of color and immigrants. Industry executives have built their careers on harming people. So when local public health departments and outcry over hundreds of COVID-19 cases threatened to close meatpacking plants, the industry asked for help from the federal government. And since Donald Trump was in the White House, that help came almost immediately, without any consultation of any group besides industry lobbyists and executives.

USA Today reports that Trump’s executive order keeping meatpacking plants open came just a week after a meat industry lobby group provided the U.S. Department of Agriculture with … very similar language for such an executive order. The North American Meat Institute’s defense boils down to “hey, we offer language for exactly what we want all the time.” But the federal government doesn’t usually use such language so directly or quickly, without input from other stakeholders, experts say.

According to Adam Culver, an attorney at Public Citizen, emails between Team Trump and the industry show a “degree of collaboration” that’s “astounding.” 

“Wealthy interest groups lobby decision makers in Washington all the time,” James Brudney, a professor at Fordham Law School and former U.S. Senate Subcommittee on Labor chief counsel, told USA Today. “They might get a draft from industry, but it wouldn’t just sail through because there would be other parties involved. That seems not to have happened here.”

Meanwhile, meatpacking plants have been tied to more than 40,000 COVID-19 cases and more than 200 workers have died, and the federal government has issued just two small fines. In one of those cases, Smithfield closed a Sioux Falls, South Dakota, plant after 350 positive cases, then used Trump’s executive order to reopen a few weeks later. By now, that plant has had 1,300 workers get sick, and four die. The company was fined about $13,000 for those workers’ deaths, in yet another message that the Trump administration does not care about the lives of meatpacking workers.

“These tiny fines are nothing to [meat plant owners]. They give an incentive to make these workers work faster and harder in the most unsafe working conditions imaginable,” Kim Cordova, the local union president at the other plant Trump’s OSHA bothered to fine, told The Washington Post. But why would we expect the government to fine companies for behavior that it had essentially signed off on in advance?

”To have government regulatory agencies intervene in a public health matter on behalf of a business interest is appalling,” Lawrence Gostin, director of the World Health Organization Collaborating Center on National & Global Health Law, said. “As a result, people die. It’s not just an ethical breach or something that’s a sterile issue of good governance, which it is. It also costs people’s lives, and that’s unforgivable.”

This blog was originally published at DailyKos on September15, 2020. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


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Kavanaugh Still Doesn’t Get It

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Good news!

Supreme Court nominee Brett Kavanaugh does not think it is unreasonable for workers to expect to come home safely at the end of the day, even if they work in the entertainment industry.

So he claims in his response to a written question from the Senate Judiciary Committee.

Unfortunately, “expecting” isn’t doing. And Kavanaugh, in his dissent from the SeaWorld case, in his testimony before Congress, and now in his written responses, seeks to take away the the ability of workers to make that expectation a reality.

Now, I’m not an attorney, but I do get to play one in this blog — and, at least when it comes to occupational safety law — I seem to have a better understanding of occupational safety and health law than a certain person who may take a lifetime seat on the Supreme Court of the United States before the autumn leaves start falling. And that’s disconcerting.

Background

For those just tuning in, in 2010 SeaWorld killer whale trainer Dawn Brancheau was dismembered and killed by a killer whale during a live show in front of hundreds of horrified spectators, including small children.

OSHA, which had proven that SeaWorld was aware that the whale that killed Brancheau, had been involved in previous trainer fatalities, and that killer whales in general were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHA’s favor.

Kavanaugh dissented from the majority opinion, arguing in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress — and only Congress — could give OSHA that authority.

And during last week’s Senate confirmation hearing, Kavanaugh doubled down on some of the arguments in his dissent while lying about other parts.

The tort system is not an alternative to OSHA protections

Kavanaugh focuses his responses to the Committee’s questions on two shaky assertions that I addressed in my previous post on his responses to Senator Diane Feinstein’s (D-CA) questions at last week’s confirmation hearing: use of the tort system and asserting that close contact in whale training is just as “intrinsic” to whale shows as tackling is to football or fast driving is to auto races.

Kavanaugh continues to insist that even if OSHA can’t act, workers can still use the tort system and file lawsuits to ensure safe workplaces. In fact, his reliance on tort law as a remedy for worker safety problems has become his preferred method of avoiding answering questions about some of the more outrageous statements he made in his SeaWorld dissent:

QUESTION: You also wrote [in your dissent]: “To be fearless, courageous, tough—to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk— is among the greatest forms of personal achievement for many who take part in these activities.”

Do you believe that fearless, courageous, and tough people do not expect their employer to “furnish to each of [its] employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to [its] employees.”? If not, please explain.

RESPONSE: State tort law helps ensure that workplaces are reasonably safe. Congress may also regulate workplace safety, as it has done. And federal agencies may also do so within the limits of the statutes and precedents.

When asked how state tort law and our civil justice system help promote workplace safety, Kavanaugh responded:

In general, state tort law and our civil justice system can provide an opportunity for people who are harmed by the actions or negligence of others to recover damages. The tort system thereby helps deter negligent actions and encourages or requires reasonable safety measures. Of course, state tort law is often augmented by state or federal regulation. It was the scope of federal regulation that was at issue in the SeaWorld case.

Well, actually, no.  Kavanaugh has it exactly backwards. Tort law — the ability to file a lawsuit — is not a replacement for the Occupation Safety and Health Act.  One fact that Kavanaugh continues to ignore is that workers cannot sue their employers if they are hurt on the job.

A little history.  Prior to workers compensation, workers could sue employers after they got hurt on the job. Employers obviously had the upper hand with far more resources than individual workers. And their arguments — that workers got hurt because they were careless, or that workers had assumed the risk (and liability) when they took the dangerous work — often prevailed with juries.

On the other hand, employer sometimes lost — and lost big. Juries were unpredictable.

State workers’ compensation systems were created in the early 20th century to establish a “no fault” system where employer-provided insurance would reimburse workers for lost wages while providing first-dollar medical coverage and rehabilitation for work-related injuries. In return, workers gave up the right to sue their employer for any injuries (or — theoretically — illnesses) occurring on the job.

The workers compensation premiums paid by employers were supposed to be connected to the rate of injuries in a company (or in an industry sector) and were therefore supposed to provide a incentive for employers to keep the workplace safe. For a variety of reasons, that incentive was never sufficient to protect employees — a problem that led to passage of the Occupational Safety and Health Act (OSHAct) in 1970 which requires employers to provide a safe workplace — to prevent workers from getting hurt or killed on the job.

So what the hell is he talking about?

We’ve all heard of workers winning lawsuits that are large enough to change or destroy an industry. The most famous is probably the lawsuits against the asbestos industry following the deaths of hundreds of thousands of workers from asbestos-related disease over the past century.  Another example is diacetyl, a popcorn flavoring that destroyed workers’ lungs. Most use of diacetyl were discontinued after disabled workers or their families won massive lawsuits.

But it’s important to remember that those workers did not sue their employers, because suing your employer is prohibited by comp laws.  They sued a “third party,” the manufacturers of the asbestos or diacetyl — companies like Johns Manville.

You can certainly make the argument that lawsuits against companies that made asbestos or diacetyl ultimately contributed to making the workplace safer for employees who came after those killed or disabled.  But Kavanaugh is trying to make this extremely small tail wag a very large dog.

How is that?

First, legal victories in these lawsuits came long after workers suffered and died horrible and preventable deaths. And tens of thousands continue to die each year from asbestos-related disease, despite the successful lawsuits.

Second, the number of successful lawsuits brought by workers against the manufacturers of hazardous chemicals is tiny compared with the thousands of hazardous chemicals in use today.

Finally,  third party lawsuits are pretty much impossible to use in workplace safety incidents — like SeaWorld. What third party does a worker sue when the employer refuses to provide fall protection equipment, or when an employer forces a worker to go down into a deep, unprotected trench?

Clearly there was no third party for Dawn Brancheau’s survivors to sue after a killer whale dismembered and drowned her. (And third-party lawsuits against God — the whale’s creator — are rarely successful.)

Why doesn’t Brett Kavanaugh — or the staff that actually wrote these answers, or the clerks that work for him  — know all of these things?

No clue. Either they’re uninformed, or they hope the Senators (and the American public) are uninformed. Either way, it’s inexcusable.

Getting eaten by a whale is not the same as racing a car

The second thing Kavanaugh insisted on over and over again in his written responses was the erroneous argument that close contact between trainers and whale was “intrinsic” or essential to whale shows.

When asked to explain how close contact between whale and trainer was intrinsic to the killer whale shows at SeaWorld  — especially when SeaWorld had itself imposed the safety measures that OSHA was requiring — Kavanaugh simply repeated what he argued in his dissent, namely that “[t]he Department [of Labor] cannot reasonably distinguish close contact with whales at SeaWorld from tackling in the NFL or speeding in NASCAR.” 

Well, no. Wrong.

First, as I already explained earlier this week, killer whale shows are not sports.

Whale trainers are not athletes; they’re workers in the entertainment industry. There is no fight between whale and human (or there shouldn’t be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.

And second, close contact between whales and trainers is not ‘intrinsic” to whale shows and are not comparable to car racing or football. Obviously you can’t have a car race if cars can’t speed.  Football would arguably not be the same if you couldn’t tackle. But, as SeaWorld continues to prove every day, you can have successful, entertaining killer whale shows even without close contact between whale and trainer.

Finally, just because a hazard may be inherent to a job, doesn’t mean that OSHA can’t require feasible safety measures to prevent workers from getting hurt.  You can’t work on top of a tall building without the danger of working at a dangerous height, but you can protect those workers from falling without killing the construction industry. You can’t process chickens without cutting and hanging, but there are ways to prevent poultry processing workers from getting disabling musculoskeletal disorders while still allowing people to enjoy their wings and nuggets. You can’t have killer whale shows that don’t star a 12,000 pound wild animal with large teeth, but you can protect trainers from the hazard while spectators still enjoy the show. That’s why the OSHAct was passed in 1970.

A Comic Interlude

Now never fear, there is one bright spot to this whole sordid tale. If you think that spending your life incorrectly analyzing the law and taking away workers’ rights must be a dreary job, I learned that you can at least entertain yourself and others by occasionally saying phrases like “ipse dixit”  —  a Latin legal term meaning “an assertion made but not proved.”

Kavanaugh argues in his written comments that despite OSHA’s insistence that it would never ban tackling in football, 

that ipse dixit just brings us back to square one: Why isn’t close contact between trainers and whales as intrinsic to SeaWorld’s aquatic entertainment enterprise as tackling is to football or speeding is to auto racing?

Admit it. It’s not possible to say “ipse dixit” without smiling, just a little.

Conclusion: Kavanaugh is a human time machine

Kavanaugh’s responses to his written questions, ipse dixit, just bring us back to our original question: Why is someone who doesn’t understand occupational safety and health law, and who is hostile to worker safety being considered for the Supreme Court?

This blog was originally published at Confined Space on September 14, 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).


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Donald Trump’s policies will mean more workers dead on the job

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Donald Trump’s rollbacks of worker protections could cost lives. Kathleen Rest, executive director of the Union of Concerned Scientists and former acting director of the National Institute for Occupational Safety and Health, and David Michaels, a public health professor and former assistant secretary of labor, leave no room for doubt on that front. People die from workplace injuries and work-related diseases every day:

People like 25-year-old Donovan Weber who suffocated in a trench collapse in Minnesota. Or Michael McCort, Christopher Irvin, Antonio Navarrete and Frank Lee Jones who were killed at a power plant in Florida when molten slag reaching 1,000 degrees poured down on them as they tried to unplug a tank. Or Wanda Holbrook, whose head was crushed by a malfunctioning robot as she adjusted machinery in Michigan.

Each day in the United States, 13 people are killed as a direct result of hazardous working conditions. And, more than 10 times that number die of work-related diseases that are less sudden but no less devastating.

And Trump’s policies are going to make that worse:

Since January, we’ve seen delays and rollbacks in workplace protections. For example, the Occupational Safety and Health Administration has proposed weakening protections for workers exposed to cancer-causing beryllium and delayed enforcement of its silica rule, increasing the likely incidence of lung disease. It has delayed the electronic submission of injury and illness data and stopped releasing public information about enforcement actions, inhibiting public and researchers’ access to data that can inform prevention.

And Congress has permanently terminated OSHA’s ability to fine employers with a long-standing pattern of injury and illness record-keeping violations, a previously important signal to others in the industry.

Equally worrisome are proposed budget cuts for research, education and training designed to improve the health and safety of our nation’s workplaces — research that enhances knowledge on existing and future hazards; that underpins government policies and workplace practices; and that spurs innovations in workplace safety.

But Trump claims those rollbacks are going to be good for corporate profits, and that’s what he cares about. Certainly not workers’ lives.

This blog was originally published at Daily Kos Labor on August 15, 2017. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.


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