Rollback of Fair Pay and Safe Workplaces order is ‘opening salvo of the war on workers’

Not violating federal labor law seems like a commonsense precursor for being awarded lucrative federal contracts. House Republicans, however, disagree.

Last week, majority members in the House of Representatives successfully passed a resolution to get rid of federal disclosure requirements included in President Barack Obama’s Fair Pay and Safe Workplaces Executive Order, which he originally signed in 2014. Those disclosure requirements directed businesses bidding for federal contracts of $500,000 or more to report any violations of 14 labor laws within the prior three years. Among those 14 laws are the Fair Labor Standards Act, the Occupational Safety and Health Act of 1970, the Migrant and Seasonal Agricultural Worker Protection Act, the National Labor Relations Act, a provision of the 1964 Civil Rights Act that bars discrimination, the Family and Medical Leave Act, and the Americans with Disabilities Act of 1990. Now that the repeal effort has passed the House, it moves on to the Senate.

Republicans were able to do this using the Congressional Review Act (CRA), which passed in the mid-1990s and allows Congress to get rid of regulations that have taken effect within the last 60 legislative days. The CRA is very rarely used; in fact, the last time Congress wielded it effectively was in 2001 to overturn OSHA's ergonomics rules. The Department of Labor previously described the need for the Fair Pay and Safe Workplaces' disclosure rules like this:

While the vast majority of federal contractors play by the rules, every year tens of thousands of American workers are unlawfully denied overtime wages, discriminated against in hiring or pay, put in physical danger on the job, or otherwise denied basic workplace protections by the federal contractors who employ them using taxpayer dollars. Taxpayer dollars should not reward companies that break the law, and contractors who meet their legal responsibilities should not have to compete with those who do not.

Debbie Berkowitz, a senior fellow at the National Employment Law Project (NELP), said the point of the executive order was to encourage companies to come into compliance before bidding for federal contracts. In fact, she told me that the order doesn’t even deprive companies that have violated the law from bidding or receiving a big federal contract. It simply requires disclosure of previous violations and even offers a process by which bidders can come into full compliance with these fairly basic labor laws. But because policymakers used the CRA to go after the order — and assuming the Senate and president follow House Republicans’ lead — it’ll mean the Labor Department can’t issue similar regulations unless Congress gives its permission.

Unfortunately, advocates such as Berkowitz worry that axing the Fair Pay and Safe Workplaces order is just a taste of the much larger assault on worker health and safety that's to come.

“Congress is completely giving in to the power of big corporations here,” Berkowitz said. “This is the opening salvo of the war on workers and the first big test of President Trump on whether he’ll stand up for workers.”

What’s at stake for worker health and safety?

The simple answer is a lot.

But to help us gauge just how much we have to lose on that front, NELP recently issued a short policy brief on gains during the Obama years. Let’s start with the basic numbers: Under Obama, workplace fatalities went down. In particular, the brief noted that the rate of workers being killed on the job dropped from 3.7 per 100,000 workers in 2008 to 3.4 per 100,000 in 2015. That translates to an average of 4,747 workers who lost their lives on the job each year from 2013 to 2015, compared to an average of 5,570 workers who lost their lives every year from 2006 to 2008. At the Mine Safety and Health Administration, according to the brief, workplace fatalities in the nation’s mines reached a record low during the Obama years.

On OSHA enforcement, the brief noted that after thinning resources during the George W. Bush years, the Obama administration and its partners in Congress allocated enough funding to add more than 200 people to OSHA’s staff. Even with the increase, it would still take OSHA more than a century to visit every workplace under its jurisdiction. That’s why during the Obama years, the Labor Department zeroed in on particularly egregious lawbreakers, directing their limited resources at employers with a history of serious and willful violations. One example of that effort is OSHA’s Severe Violator Enforcement Program (SVEP), which it established in 2010. In a 2013 agency white paper on SVEP progress, OSHA wrote:

On June 18, 2010, OSHA instituted the Severe Violator Enforcement Program (SVEP) to more effectively focus enforcement efforts on recalcitrant employers who demonstrate indifference to the health and safety of their employees through willful, repeated, or failure-to-abate violations of the OSH Act. The program replaced the Enhanced Enforcement Program (EEP), an earlier program that the Office of the Inspector General (OIG) found to be an inefficient and ineffective means of identifying and addressing the most severe violators. …

Following a preliminary evaluation of the new program’s initial 18 months in operation, OSHA has found that SVEP is already meeting certain key goals, including a significant increase in follow-up inspections and enhanced settlements. The program has succeeded in guiding OSHA enforcement toward recalcitrant employers by targeting high-emphasis hazards, facilitating inspections across multiple worksites of employers found to be recalcitrant, and by providing Regional and State Plan offices with a nationwide referral procedure.

This is important because OSHA’s enforcement efforts can serve as a critical insight into how an administration values and prioritizes worker safety. It gives us an opportunity to gauge whether an administration’s commitment to job creation includes jobs that don’t put workers at risk of preventable injury and illness for the sake of greater profits. In general, Berkowitz said the Obama administration viewed workplace injuries as events that could be prevented through safer workplace conditions, better training and compliance with OSHA regulations. Under Obama, OSHA could follow the data, which led it to focus on the most dangerous industries, the most vulnerable workers and the most recalcitrant employers. For example, Berkowitz reminded me, OSHA launched initiatives specifically for Latino workers as well as temporary workers in light of data showing both worker populations faced disproportionate workplace risks and abuses.

That was a marked practice shift from the previous administration, which focused much more on applauding workplaces with good safety records to the detriment of focusing on workplaces with poor safety records. Berkowitz said she expects to see a big drop in OSHA’s enforcement capacity under Trump. She also noted that the administration could easily get rid of a program like SVEP.

“Enforcement is where I think we’ll see the biggest swing coming,” she said. “I think we’ll see a shift away from enforcement toward exempting more employers from inspections and providing more resources for giving workplaces (accolades) if they have good safety records. …It’s a shame because enforcement is critical. It makes a difference, it works, it saves workers’ lives and it saves employers money.”

‘Radical departure from the commitment to protecting workers’

Beyond enforcement, OSHA also made progress in protecting whistleblowers and ensuring state-run worker safety programs were at least as effective as federal OSHA, according to NELP.

For example, OSHA under Obama amped up its efforts to protect workers who were retaliated against for speaking out about harmful workplace conditions. During the last three years of Obama’s presidency, the number of cases with a positive outcome for workers who experienced such retaliation was double that of a comparable period of time under the Bush administration, the brief reported. In addition, the amount of money awarded to workers who were retaliated against almost tripled.

Still, the brief noted that with more than 4,800 workers killed on the job in 2015, “more work is left to be done.” The brief drove that need home with this story:

Just this summer, for example, a young woman, two weeks away from her wedding, was working at an auto parts plant in Alabama when the assembly line stopped and she and three of her co-workers entered a robotic station to clear a sensor fault. The robot restarted abruptly, crushing to death the young woman inside the machine. An investigation by OSHA found that the company exposed her to a life-threatening danger and completely failed to protect her — they never developed or implemented the procedures for preventing machines from starting up when workers are inside. This is one of the oldest and most basic of all safety rules. OSHA levied more than $2.5 million in fines on both Ajin USA (the plant owner) and the two staffing agencies that provided workers to the plant.

This story — which is one among thousands in 2016 — should send a clear message to the incoming administration that strong enforcement of safety rules is a must to safeguard America’s workers. But Andrew Puzder, (President) Donald Trump’s nominee for secretary of labor, has spent years railing against regulations — especially those that protect America’s workers and the middle class. He speaks often of a cost-benefit analysis that gives short shrift to the value of the lives and health of workers.

On Puzder, Berkowitz told me: “They’ve nominated somebody who clearly shows that he’s hostile to the interests of low-wage and middle-wage workers. I think he has no concept of the kinds of dangers workers face in industry and that they can be prevented through better training and safer practices.” (Puzder’s confirmation hearing has been delayed multiple times.)

Berkowitz said despite the troubling outlook at the federal level, she expects states and localities will continue moving forward to promote safer working conditions, living wages and equitable workplace policies. Federally, she predicts worker health and safety will end up on the chopping block.

“I think we’re going to see huge budget cuts — I have no doubt about that,” Berkowitz said. “We’re going to see a radical departure from the commitment to protecting workers…and it’s never good for workers when OSHA rolls back enforcement. If workers can’t count on OSHA to cite an employer who’s endangering their safety, then there’s no real protection for workers.”

To download a copy of the NELP brief, click here. For advocacy resources on the Puzder nomination, visit http://antilaborsecretary.org.

Kim Krisberg is a freelance public health writer living in Austin, Texas, and has been writing about public health for 15 years.