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“PROTECTING AMERICAN WORKERS ACT”

(PAWA)

AND

THE “SEVERE VIOLATOR ENFORCEMENT PROGRAM”

(SVEP)

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PAWA•UNIONS HAVE BEEN LOBBYING FOR

PAWA SINCE 1975

•ALL ATTEMPTS TO PASS THREATENED WITH VETO THROUGH 5 ADMINISTRATIONS

•SEEN AS TAKING MORE CONTROL OF PRIVATE BUSINESS

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PAWA

•SPONSORED BY AMERICAN PROGRESSIVE MOVEMENT AND LABOR TO INCREASE CONTROL OF BUSINESS AND TO INTIMIDATE OR SEVERELY PUNISH EMPLOYERS THOUGHT TO BE NONCOMPLIANT

•INITIATED BY CASS SUNSTEIN AND BLESSED BY SECRTARY OF LABOR

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DETAILS

•Protects More Workers

•Expands OSHA coverage to include state and local public employees and federal government workers

•CRIMINALIZES EMPLOYERS

•DOES NOT REQUIRE CONGRESSIONAL APPROVAL. (REGULATORY)

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DETAILS

•Requires OSHA to investigate all cases of death and serious injuries (i.e. incidents that result in the hospitalization of 2 or more employees

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DETAILS•Codifies regulations that give workers the right to

refuse to do hazardous work

•Clarifies that employees cannot be discriminated against for reporting injuries, illnesses or unsafe conditions, and brings the procedures for investigating and adjudicating discrimination complaints into line with whistle-blower laws (THIS MEANS MUCH HIGHER FINES)

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DETAILS•Provides workers and employee representatives

the right to contest OSHA’s failure to issue citations, classification of its citations, and proposed penalties.

•Gives injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations.

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DETAILS•Allows felony prosecutions against

employers who commit willful violations that result in death or serious bodily injury, and extends such penalties to responsible corporate officers.

•IDENTIFIES (AGENTS OF THE COMPANY) CFO, CEO, SUPERVISORS AND FOREMAN FOR PROSECUTION

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DETAILS

•INCREASES PENALTIES FROM $125,000 TO $250,000 FROM $70,000 MAX WILLFUL

•INCREASES PRISON TIME FROM 6 MONTHS TO 10 YEARS (20 years under certain circumstances)

•MISDEMEANOR TO FELONY

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DETAILS

•Allows any worker or their representative to object to a modification or withdrawal of a citation, and entitles WORKER to a hearing before the Occupational Safety and Health Review Commission

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DETAILS

•OTHER THAN SERIOUS $5000 TO $8000

•SERIOUS $7000 TO $12000

•DEATH CASES RESULTING IN SERIOUS VIOLATIONS INCREASES TO $50,000 EACH

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DETAILS•Another proposed change would alter the

definition of employer (who could be subject to criminal penalties) from “any responsible corporate officer” to an “officer or director.”

•PAWA attempts to broaden this definition so high-level officials (individuals) who act criminally in OSHA’s view can be prosecuted by the DOJ.

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DETAILS

•VICTIMS AND FAMILIES MUST BE NOTIFIED OF ANY CHANGES BEFORE THEY BECOME FINAL AND THEY HAVE THE RIGHT TO CONTEST

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CURRENT QUOTES

•”16 Deaths Per Day' Highlights Weak Penalties for Worker Fatalities “

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HYSTERICAL QUOTES

•Worker deaths show it's time to update OSHA !

•“HOWEVER, TOO MANY WORKERS ARE STILL DYING, GETTING INJURED OR BECOME ILL BY

WORKING IN UNSAFE AND UNHEALTHY CONDITIONS. THE PROTECTING AMERICA’S WORKERS ACT WILL PROVIDE ADDITIONAL

TOOLS TO ENSURE THAT OSHA CAN FULFILL ITS DUTY ENFORCE SAFE AND HEALTHY

WORKPLACES FOR ALL AMERICAN WORKERS”

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HYSTERICAL QUOTES

•“In Today's Workplace, Workplace Deaths are An Epidemic”

• •“Employers are ignoring safety requirements and killing their employees just to save money”

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MY THOUGHTS

•MUCH MORE POWER AND CONTROL OF PRIVATE CORPORATIONS

•SHAKEDOWN OF GOOD EMPLOYERS THAT EXPERIENCE A CATASTROPHIC FAILURE THROUGH NO FAULT OF THEIR OWN

•EMPLOYEE AT-RISK BEHAVIOR IS EMPLOYERS FAULT

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MY THOUGHTS

•ACCIDENTS WILL CONTINUE TO HAPPEN REGARDLESS OF EFFORTS BY EMPLOYERS

•INDIVIDUAL AT-RISK BEHAVIOR IS THE NUMBER 1 CAUSE OF TODAYS DEATHS AND INJURIES

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CASE IN POINT

•WORKER (FOREMAN) IS TRAINED TO USE TRENCH BOX. ELECTS TO NOT USE IT TO SAVE TIME. WORKER HAS RECEIVED EXTENSIVE TRAINING

•TRENCH COLLAPSES, DEATH OCCURS AND OSHA INVESTIGATES.

•CITATIONS ARE ISSUED AS WILLFUL FOR LACK OF “ADEQUATE” TRAINING EVEN THOUGH YOU HAVE TRAINED AND RETRAINED.

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ACTUAL CASE

•OSHA DETERMINED THAT EVEN THOUGH THE FOREMAN WAS HIGHLY TRAINED, THE TRAINING WAS NOT GOOD ENOUGH BECAUSE THE FOREMAN COMMITTED A VIOLATION AND THERE WAS NO RECORD OF DISCIPLINE FROM THE PAST.

•IF THERE IS A BODY THERE WILL BE A CITATION ISSUED REGARDLESS OF THE FACTS

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MY THOUGHTS

•WE ARE NOT PAYING CLOSE ENOUGH ATTENTION TO WHAT OCCURS DURING AN INSPECTION AND ESPECIALLY WHEN AN ACCIDENT IS BEING INVESTIGATED

•SITE SUPERVISORS NOT PREPARED OR TOLD WHAT TO DO WHEN OSHA SHOWS UP

•NEED TO WORK SMARTER

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MY THOUGHTS

•OSHA BELIEVES THAT CRIMINALIZING ALL SAFETY-RELATED WORKPLACE ACCIDENTS WILL REDUCE THE HUMAN PROPENSITY TO TAKE RISKS

•NOT GOING TO HAPPEN!

•SUPERVISORS MUST BE RETRAINED TO THINK DIFFERENTLY AND SMARTER

* * 0 SAFETY DIRECTORS AND

INSPECTORS

•CAN BE HELD RESPONSIBLE

•USUALLY NOT TAKEN TO CIVIL COURT EXCEPT WHEN WORKING AS CONSULTANTS THEN NOT AS INDIVIDUALS

•SAFETY DIRECTORS MUST BE GIVEN UNILATERAL AUTHORITY FOR SAFETY

•MUST ONLY REPORT TO THE HIGHEST AUTHORITY

* * 0 “SEVERE VIOLATOR

ENFORCEMENT PROGRAM”

•HIGH EMPHASIS HAZARDS ARE TARGETED

•“INCLUDES FALL PROTECTION, CONFINED SPACES AND ELECTRICAL- RELATED ISSUES SUCH AS LOTO AND “LOW VOLTAGE WORK AND EXCAVATING”

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SVEP

•WILL CONCENTRATE ON EMPLOYERS THAT DEMONSTRATE “INDIFFERENCE TO SAFETY”

•INDIFFERENCE TRANSLATES TO A CSHO’S DETERMINATION OF AN EMPLOYERS WILLFULNESS OR REPEATED VIOLATIONS

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SVEP

•CSHO’S WILL ALSO USE THE TERM “HEIGHTENED AWARENESS” TO JUSTIFY THE SVEP PROGRAM. IN OTHER WORDS, IF THEY CATCH YOU ONCE AND THEN CATCH YOU AGAIN, YOU ARE RECALCITRANT AND YOU ARE A REPEAT VIOLATOR SUBJECT TO SVEP

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SVEP

•WILL APPLY TO ALL EMPLOYERS LOCATIONS AND SUBSIDIARIES

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SVEP CRITERIA

•ONE OR MORE WILLFUL/REPEATED VIOLATIONS WHERE A FATALITY HAS OCCURRED OR WHERE TWO OR MORE PERSONS ARE HOSPITALIZED

•WHERE A FATALITY HAS NOT OCCURRED BUT THE EMPLOYER IS ENGAGED IN A TARGETED OCCUPATION AND THERE ARE 2 OR MORE WILLFUL/REPEATED VIOLATIONS THEY WILL BE SVEP

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SVEP CRITERIA

•WHERE 3 OR MORE WILLFUL/REPEATED ”HIGH GRAVITY” VIOLATIONS ARE OBSERVED SVEP APPLIES

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SVEP CRITERIA

•NONFATAL INSPECTION OF A BUSINESS RESULTS IN ONE HIGH GRAVITY WILLFUL CITATION AND ONE LOW GRAVITY WILLFUL CITATION. THIS EMPLOYER WILL NOT BE SCHEDULED FOR SVEP

•THEREFORE THE CSHO HAS AN INCENTIVE TO CLASSIFY ALL WILLFUL CITATIONS AS HIGH GRAVITY

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SVEP CRITERIA

•ALL LOTO AND ELECTRICAL VIOLATIONS ARE CONSIDERED AS HIGH GRAVITY VIOLATIONS AND WILL LIKELY BE CITED AS ‘WILLFUL” CITATIONS

•MUST CONSIDER ALL SOURCES OF ENERGY, GRAVITY, PNEUMATIC, ELECTRICAL, HYDRAULIC ETC

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SVEP CRITERIA

•CONFINED SPACE ENTRY

•MACHINE GUARDING WHERE AMPUTATIONS ARE THE OUTCOME OF FAILING TO GUARD

•MACHINED GUARDING IS TARGETED

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OSHA

•ALL SVEP VIOLATORS WILL BE REPORTED TO THE REGIONAL OFFICE FOR TRACKING AND FREQUENT MANDATORY FOLLOW UP INSPECTIONS

•WHERE SVEP IS INITIATED AGAINST AN EMPLOYER OSHA BELIEVES THAT ALL LOCATIONS OF THAT EMPLOYER ARE RECALCITRANT AND WILL BE INSPECTED

* * 0 SVEP PROCEDURES FOR

OSHA

•OSHA WILL USE NATIONWIDE TRACKING METHODS THROUGH THE DODGE REPORTING SYSTEM, FEDERALLY FUNDED PROJECTS AND “OTHER” METHODS TO IDENTIFY AND TRACK DOWN SVEP EMPLOYERS

•IF A JOBSITE HAS FINISHED AND A F/UP INSPECTION HAS NOT BEEN DONE THEN THE NEXT JOBSITE WILL BE INSPECTED UNDER SVEP

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OSHA

•SVEP EMPLOYERS WILL HAVE HIGH PRIORITY NEXT TO FATALITY INSPECTIONS

•UNIONS WILL BE SENT COPIES OF ALL CITATIONS AND WILL BE INVOLVED IN ANY NEGOTIATIONS BETWEEN EMPLOYERS AND OSHA

•MAJOR NEWS ORGANIZATIONS WILL BE NOTIFIED OF CITATIONS

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OSHA

•FOR SVEP FATALITY MATTERS THE VICTIMS FAMILY WILL PARTICIPATE IN ANY NEGOTIATIONS FOR SETTLEMENT

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OSHA

•CFO’S AND CEO’S WILL BE TARGETED FOR PRISON TIME FROM 10 TO 20 YEARS FOR FATAL ACCIDENTS THAT RESULT IN SVEP ENFORCEMENT ACTIONS

•INCLUDES FOREMEN AND OTHER SUPERVISORS

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PROVISIONS

•EMPLOYER MUST HIRE AN OUTSIDE SAFETY PROFESSIONAL TO DEVELOP A COMPREHENSIVE SAFETY AND HEALTH PROGRAM

•EXPERT MUST DEVELOP SITE SPECIFIC SAFETY PROGRAMS FOR EACH FUTURE SITE AND PROVIDE SAME TO OSHA FOR EVALUATION

* * 0 ADDITIONAL SVEP

POTENTIALS

•A FEDERAL COURT MAY ISSUE A COURT MANDATED ORDER (ALONG WITH A LOT OF PRESS ANNOUNCEMENTS) THAT AN EMPLOYER “SHALL” COMPLY WITH FEDERAL OSHA STANDARDS EVEN THOUGH THE EMPLOYER IS COMPLYING WITH THE SVEP PROGRAM.

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SVEP DANGERS

•CSHO’S MAKE MOST OF THE DECISIONS UNDER SVEP

•CSHO’S CAN REQUEST THAT AN SVEP VIOLATOR’S CORPORATE STRUCTURE BE INVESTIGATED. THIS INCLUDES INVOLVING OTHER FEDERAL AGENCIES LIKE THE IRS, IN ORDER TO JUSTIFY NATIONAL INSPECTIONS

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SVEP DANGERS

•CSHO’S, (INCLUDING LESS THAN COMPETENT INSPECTORS) WILL HAVE INCREDIBLY BROAD POWERS

•THE EMPLOYERS FATE WILL BE IN THE HANDS OF POORLY TRAINED OVERZEALOUS INSPECTORS

•FINES WILL RANGE FROM $250,000 TO $500,000 AND HIGHER

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SVEP DANGERS

•THE FEDERAL GOVERNMENT WILL ENJOY A NEW SOURCE OF REVENUE

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GETTING CLOSE TO END

•RECORD, PHOTOGRAPH, VIDEO TAPE AND TAKE NOTES OF EVERYTHING THAT OCCURS

•ESTABLISH CLEARLY COMMUNICATED WORK RULES

•DISCIPLINE NOW AND KEEP RECORDS

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SVEP

•ESTABLISH AN OSHA INSPECTION PROTOCOL REGARDING WHAT TO DO WHEN OSHA SHOWS UP. THIS MUST BE STEP BY STEP

• DO NOT ALLOW START OF INSPECTION UNTIL YOU HAVE COUNSEL OR QUALIFIED REPRESENTATIVES AT THE SITE

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SVEP

•THERE WILL BE NO RELIEF AT INFORMAL CONFERENCES AFTER AN SVEP INSPECTION. DON’T WASTE YOUR TIME!

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SVEP

•LEARN TO “TAKE NO PRISONERS” WHEN IT COMES TO EMPLOYEES VIOLATING YOUR WORK RULES.

•ADOPT A ZERO TOLERANCE SAFETY POLICY AND ADVISE YOUR EMPLOYEES OF THE POLICY. IT IS NOT ENOUGH TO JUST WARN AN EMPLOYEE ABOUT VIOLATING SAFETY POLICIES

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THE END