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OSHA to Employers Who Violate the Recordkeeping Rule: No Problem!

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Fewer than half of all employers required to send their injury and illness information into OSHA last year sent in the information. “The Occupational Safety and Health Administration was expecting about 350,000 summaries to be submitted by Dec. 31, the agency numbers provided to Bloomberg Environment March 7 show. Instead, employers required to participate submitted 153,653 reports, OSHA said.”

The so-called electronic recordkeeping regulation, issued under the Obama administration, intended the information to be used by OSHA to help target the most dangerous establishments, and the information would be posted to help employers compare themselves with others in their industry, and to inform workers and the public about employers’ safety records.

Employers with 250 or more employees, as well as worksites with 20 or more employees in high hazard industries, were required to send in their annual summary report — the OSHA Form 300A — by December 15, 2017.

But despite this huge crime wave, and a warning from Tom Galassi, OSHA’s director of enforcement, that “Those employers that were required to submit records and failed to so do may be subject to citation,” it seems likely that most employers who failed to comply with the law will receive no more than a slap — or maybe a slight caress — on the wrist. According to a memo sent to the field, employers are only subject to enforcement if OSHA begins an inspection before June 15 — six months after the December 15 due date for the submissions. If an employer is found not to have submitted the information — but gives it to the inspectors when they arrive — the employer will receive an “other than serious” citation, but no penalty.

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is. 

Given that employers are required to provide that information to OSHA inspectors at the beginning of every inspection anyway, it’s hard to see what the downside of not complying is.

The memo also states that if the employer did not submit the 2016 data, but has already submitted the 2017 data, again, no penalty. The only way an employer can earn a penalty is if they refuse to give the inspector any data. The maximum penalty is $12,934, although it is highly unlikely it would reach that level. If the employer can show that the information was not sent due to technical difficulties, no citation would be assessed.

Former OSHA head Dr. David Michaels who issued the original regulation, said in an interview with Bloomberg, “OSHA is making a serious mistake. By not making meaningful efforts to enforce this legal requirement, OSHA is encouraging law-breaking employers, most likely those with the highest injury rates, to ignore OSHA’s regulation.”

Indeed. One wonders why even have a regulation if there is no penalty for ignoring it. The Trump administration and its business overlords have expressed their displeasure with the regulation, especially OSHA’s original intention to post the information, and is considering rolling back the next phase which would require more detailed information to be sent to OSHA.

Industry attorneys speculate that the reason so many employers are not complying is because they’re confused about whether they’re covered, or they thought OSHA would postpone the requirement again (after several previous postponements), or that they feared sending in information would increase their chances of getting inspected (which it would, if they have a poor record.)

Or maybe they just thought that this law-and-order administration doesn’t really take enforcing the law seriously.

The 2017 data is due to OSHA by July 1, 2018.

But then again, who cares?

This blog was originally published at Confined Space on March 9, 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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Getting Heard on Workplace Violence

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Image: Richard NegriI was recently with the Nurse Alliance of California for its annual Legislative Conference. It is always an honor for me to share information with nurses about online tools we can and should employ as activists. Although I think my breakouts at the conference went over well, one of the themes of the conference — which many of you know I’ve been somewhat absorbed with — is workplace violence and workplace violence prevention. My goal here is to tie in information about this important subject matter and couple it with the online tools in our educated union member tool box.

With the advent of workplace violence among the top issues we face every day, would you agree that it is incumbent on us to start up and/or maintain the drumbeat about this discussion?  When one of our sisters or brothers gets brutally beaten or killed on the job, our reaction is immediate and strong, but how can we get to talking up a storm on this every day of the week? In part, this is about getting us mobilized around a few entry points to the discussion; in part it is to help us focus on some online venues we can take advantage of to get the conversation off the ground. Are you in this with me?

What I Know…

If you have been a nurse for a couple of weeks or a nurse for the last 30 years, violence on the job is never very far from you. Unfortunately, there are not a lot of legal protections in place. The Occupational Safety and Health Administration (OSHA) recognizes workplace violence as a hazard, but has no federal regulations in place requiring employers to deal with the problem. While some states, like New York, have some laws in place (thanks to the Public Employees Federation (PEF) and other unions) if there is no accountability, the laws are just bundles of paper in a drawer somewhere.

Various papers, studies, scholars, union leaders, and other folks reiterate this point: Workplace violence is an epidemic that many outside our facilities or day-to-day life have no clue even happens, much less how often it happens. More healthcare professionals are either assaulted or killed on the job than any other profession or trade.

For many of us, it is tremendously difficult to talk about something if we don’t have a concrete definition of what “it” is. What does that mean? We can all talk about what we think and feel after a co-worker is beaten on the job. We can all attend rallies, services, light candles, shake our heads … but what is “it”?  What is the definition of workplace violence?

Jonathan Rosen, MS CIH, Director of the Occupational Safety & Health Department for the New York State Public Employees Federation (PEF), facilitated an amazing breakout session on workplace violence at the California legislative conference. One slide in his presentation defined workplace violence very succinctly:  “Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the work setting.”

Maybe as you read that, you thought about the countless times you felt threatened, were threatened, or were verbally abused at work. It’s likely that more than half of you have had first-hand experience with violence on the job.

This is probably not breaking news, but there are papers and studies out there that reveal that healthcare providers often do not report violence that occurs on the job. Another of Jonathan’s slides cited a National Crime Victimization Survey: “58% of harassed employees do not report incidents. Fewer than than half of workers report assault to the police. Only 25% of rapes at work are reported.”

Having the Discussion and Reporting the Problem(s)

Government statistics underestimate the true extent of violence at the workplace because:

* Data is collected on “battery” or incidents resulting in physical injury or death. Threats, verbal threats, and harassment are not reported to government agencies.

* In some jobs, assaults are so common that they are dismissed as “part of the job.”

* Other possible sources of information about violence — like hospital records or police reports — often fail to provide information about whether the injury was or was not work-related.

* Employers discourage employees from filing workers’ compensation claims for assault. In addition, many injuries do not meet the criteria for receiving workers’ compensation.

The reasons why our workplaces at times explode into violence add up to a growing list. According to the Safe Work, Safe Care Project, patients can become violent as a result of mental disorders, substance abuse, a past history of violence, head injuries, and confusion. The Project’s list includes about twenty issues — these are just the top five.

But why are we hesitant to report instances of violence on the job?  Many of us may have heard about the OSHA General Duty Clause — but, what is it?  It’s important!

OSHA’s General Duty Clause and EVERY Employer’s RESPONSIBILITY!

Every employer in the United States is responsible for creating and maintaining a safe and healthy workplace for its employees. The good news for us is this:  THERE ARE NO EXCEPTIONS.  That, sisters and brothers, that is the law.  It is your right as a worker.

Section 5(a)(1) of the Occupational Safety and Health Act requires that an employer:  “shall furnish to each of his employees employment and a place of employment which is free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”

This is what we refer to as the OSHA General Duty Clause.

In September 2011, OSHA issued procedures for its field staff to use when responding to incidents and complaints of workplace violence. We believe that this directive will help inspectors use the General Duty Clause when they can.

Start the Conversation with Thousands and Thousands of Nurses

Here are our talking points:

1) Workplace violence defined: “Workplace violence is any physical assault, threatening behavior, or verbal abuse occurring in the work setting.”

2) The Department of Justice says that fewer than half of all non-fatal violent workplace crimes are reported to the police.

3) Some known causes for under-reporting workplace assaults include:

“Part of the job” syndrome

Fear of blame or reprisal

Lack of management/peer support

Feeling it’s not worth the effort

4) OSHA and the OSHA General Duty Clause:

There are no OSHA standards regarding workplace violence (ain’t that something?) — however…as mentioned, in September 2011 OSHA issued directives for field staff when investigating incidents of workplace violence.

And …you have the right to a place of employment that is free from recognized occupational hazards which cause or are likely to cause serious harm, illness, or death.

5) Violence is recognized occupational hazard!

This blog originally appeared in Union Review on May 14, 2012. Reprinted with permission.

About the author: Richard Negri is the founder of UnionReview.com and is the Online Manager for the International Brotherhood of Teamsters.


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