Posts Tagged ‘DOL’

Reading the tea leaves: The Trump administration and OSHA

Wednesday, November 30th, 2016

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Employers are in a state of limbo between one presidential administration and another, trying to intuit the potential impact as potential names of candidates for the  cabinet and key administrative posts are floated, debated and named. Much is still in the realm of speculation.

One thing is becoming clear: Despite the ambiguity that Trump’s recent comments about possibly preserving some parts of Obamacare, it’s clearly on the chopping block. Any doubts were laid to rest in naming Representative Tom Price of Georgia as the secretary of Health and Human Services. An orthopedic surgeon, Price is an ardent foe of the ACA. He is likely to set his sights on Medicare and Medicaid,  too.

But what of other workplace issues? A key indicator will be naming a prospective Secretary for the Department of Labor. Several names have been floated, but as of this writing, no definitive pick has been named. PA congressman Lou Barletta has been cited by many as leading the pack of those under consideration – there are some reports that he has been offered the position, but no confirmation yet. Other possible contenders include Andy Puzder, CEO of CKE Restaurants (parent company of Carl’s Jr. and Hardee’s) and Victoria Lipnic, a commissioner on the Equal Employment and Opportunities Commission and former assistant labor secretary under George W. Bush. Wisconsin Governor Scott Walker’s name has also been raised by some, a selection that would be chilling to labor unions.

At EHS Today, Sandy Smith offers a not-to-be-missed insider view of Transitioning to a Trump Administration: What It Could Mean for the Department of Labor and OSHA.

Her article offers informed perspective by Former Assistant Secretary of Labor Edwin G. Foulke Jr., who spearheaded OSHA under George W. Bush. He also was the chair of Occupational Safety and Health Review Commission (OSHRC) during the transition from George H. Bush to Bill Clinton.

Foulke talks about the immediate process, offering a detailed look at the steps and timeline involved in the transition. He also offers his thoughts on what labor and OSHA issues he expects that the Trump administration will revisit. Here are the items he lists, but click through for the details.

  • Walking-Working Surfaces Standard
  • Respirable Silica Standard
  • Recording and Reporting Occupational Injuries and Illnesses
  • Whistleblower Statutes
  • Increased OSHA Penalties
  • OSHA Enforcement
  • Non-Company Personnel Participation in OSHA Inspections
  • Restroom Access for Transgender Workers
  • Compliance Assistance
  • Fair Pay and Safe Workplaces
  • The Occupational Safety and Health Review Commission

For another take on this, labor and employment law attorney Mark S. Kittaka also looks at Trump’s Potential Impact on OSHA in an article in the National Law Review. Kittaka rehashes some of Trump’s stated priorities and notes that,

“Even without changing a single regulation, Trump could simply limit OSHA’s enforcement ability by cutting their budget. This was a tactic used by President Ronald Reagan and with a Republican majority in both the House and Senate, this is a distinct possibility.”

He identifies the following areas as likely to come under scrutiny:

  • Electronic Recordkeeping/Non-Discrimination Provisions
  • Recordkeeping as a Continuing Violation
  • Silica
  • Interpretation Letters

In other news, CNN reports that Trump will tap billionaire Wilbur Ross for Commerce secretary, As the administration’s chief business advocate, he’s the type of appointment Trump promised: a non-politican executive from the business community. Ross would be expected to help Trump reshape global trade and revive steel and coal, both industries in which he has experience.

But in coal industry, there were some problems. According to CNN:

Ross’s foray into the coal industry, however, ran into trouble in January 2006 when 12 miners were killed after an explosion at the Sago Mine in West Virginia. His company, the International Coal Group, had taken over the mine a couple months earlier.

According to federal reports, the mine had recorded 96 safety violations in 2005 that were deemed “serious and substantial.” The mine was fined nearly $134,000, an amount later reduced in court.

Read another profile of Ross from our go-to coal industry expert, reporter Ken Ward Jr., who speculated about a potential Ross appointment on his Coal Tattoo blog earlier in the month. Ward notes

“It is worth pointing out that if he got either the Commerce or Treasury slot, Ross would not be in charge of coal mine safety and health regulation for the Trump administration. Folks who are concerned about those issues would obviously be better off watching to see who President-elect Trump makes Secretary of Labor — and then who exactly is chosen to by Assistant Secretary of Labor for Mine Safety and Health.”

Superhero Health Wonk Review and other news of note

Friday, October 28th, 2011

Joe Paduda hosts The Superhero Edition of Health Wonk Review, in which he attributes superpowers to our regular health wonk contributors and cites them for doing battle with tough issues. My question is when are we going to get the costumes, Joe?
By the way, while you are at Joe’s blog, don’t overlook his smoking gun post Physican dispensing – boy do we have a deal for you!
Good news – DOL reports that private industry workplace injuries and illnesses declined in 2010. They fell to a rate of 3.5 cases per 100 equivalent full-time workers, down from 3.6 cases in 2009. But the more serious cases are holding constant: More than one-half of the 3.1 million private industry injury and illness cases reported nationally in 2010 were of a more serious nature that involved days away from work, job transfer, or restriction–commonly referred to as DART cases.
Wellness – Ezra Klein covers Cleveland Clinic’s wellness program in Health Care’s Brave New World of Compulsory Wellness. The program is not without some controversy, but it appears to be working: “Not only has the clinic cut its health-care costs, but its employees are also getting healthier in measurable ways. Workers have lost a collective 250,000 pounds since 2005. Their blood pressure is lower than it was three years ago. Smoking has declined from 15.4 percent of employees to 6.8 percent.”
See you there? – we’re getting close to two important industry events, and we’ll be at both. From November 9 to 10, we’ll be at the National Workers Compensation & Disability Conference in Las Vegas. If you are attending, why not meet up at Mark Walls’ Link UP reception at 5 pm on Wednesday? We’ll also be at the WCRI’s 28th Annual Issues & Research Conference in Boston on November 16 and 17. We’re looking forward to both. Drop us a line if you will be attending too.
Sneak peekBusiness Insurance has had a redesign and is offering an “open house” through the 31st of the month. Here’s the workers’ comp section – if you read Workers Comp Insider regularly, you know we are a Roberto Ceniceros fan. The whole publication is worth a glance, BI has an excellent staff of reporters many of whom have been with the publication for years.
Get your fright on – In honor of Halloween weekend, we thought this feature on 8 Terrifying Robots Now Stalking Your Local Hospital was appropriate – but be warned, the feature appears on an irreverent site and if you are at work, it might trigger your company’s net nanny filter. Also on a scary theme, we noted this recent study on Psychopathic bosses.
News Briefs

OSHA’s squeaky Whistleblower Protection Program

Tuesday, September 28th, 2010

Most people are aware that, since 1970, the Occupational Health and Safety Administration (OSHA) has been responsible for issuing and enforcing standards for workplace health and safety. But if I were a betting person, I would wager that far fewer are aware of OSHA’s responsibilities in relation to the Sarbanes Oxley Act. OSHA is charged with protecting workers ” …from retaliation for reporting alleged violations of mail, wire, bank, or securities fraud; violations of rules or regulations of the SEC; or federal laws relating to fraud against shareholders.”
This responsibility is part of the Office of Whistleblower Protection Program (OWPP),for which OSHA has oversight. OWPP was originally intended to protect workers from being retaliated against for such things as reporting safety violations to OSHA, requesting or participating in an OSHA inspection, or testifying in any proceeding related to an OSHA inspection.
Over the years, this responsibility has expanded to encompass oversight of the whistle-blowing provisions for eighteen other statutes, including violations of various airline, commercial motor carrier, consumer product, environmental, financial reform, health care reform, nuclear energy, pipeline, public transportation agency, railroad and securities laws.
And according to a recent report by the Government Accountability Office (GAO), OSHA gets failing grades for discharging its whistleblower protection responsibilities. The GAO cited lack of training, chronic inattention from OSHA leaders, and long delays in resolving cases, among other problems.
Some say the problems are no surprise: too few staff spread too thin, resulting in long case delays and staff demoralization. You can see charts depicting the growth of responsibilities while staff remained flat on pages 16-17 of the GAO Whistleblower Report. (PDF)
Some relief is in the offing – 25 new investigators are scheduled for appointment to OWPP. In addition, the Department of Labor (DOL) is conducting a “top to bottom” review and there is some discussion about whether the program should be moved to another part of DOL.
Whistleblowers are fundamental to workplace safety, but even with protections built into the laws, the reality is that protection for whistle-blowing employees can be a long time in coming, when and if it does. Read about truck driver John Simon’s whistle-blowing ordeal as a case in point. There are unfortunately many other similar stories. OSHA offers employees a a bill of rights to ensure safety, but fundamental to those rights are protections when and if they speak up in the cause of safety.

Study reveals widespread labor law violations for low-wage workers

Tuesday, September 8th, 2009

According to the Department of Labor’s site on the history of Labor Day, the holiday is a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country. But for low wage workers, there isn’t much to celebrate this holiday. A 2008 study of 4,387 workers in low wage jobs in Chicago, Los Angeles and New York – Broken Laws, Unprotected Workers (pdf) – revealed widespread violations of basic wage and labor laws. These violations affected all worker, regardless of legal status, race, or gender. The study found numerous violations of minimum wage and overtime laws; workers who log hours without being paid for their time; workers who are denied earned breaks and meal time; charges illegally deducted from worker pay; retaliation by employers for complaints; and denial of workers’ compensation benefits, including encouraging employees to commit fraud.
Nearly two-thirds of all workers surveyed had experienced a wage violation in the week prior to being interviewed. About one in four had been paid less than the minimum wage the week before being surveyed; about one in seven had worked off the clock; about three in four who had worked overtime were not paid the proper amount.
Stating that the workers’ comp system is not functioning in the low-wage labor market, the report’s executive summary noted the following:

    Of the workers in our sample who experienced a serious injury on the job, only 8 percent filed a workers’ compensation claim.
  • When workers told their employer about the injury, 50 percent experienced an illegal employer reaction — including firing the worker, calling immigration authorities, or instructing the worker not to file for workers’ compensation.
  • About half of workers injured on the job had to pay their bills out-of-pocket (33 percent) or use their health insurance to cover the expenses (22 percent). Workers’ compensation insurance paid medical expenses for only 6 percent of the injured workers in our sample.

The economic toll
Study authors call these violations wage theft and paint a grim picture of the economic toll that these violations impose on the workers and on the communities at large. The average worker lost $51 from an average weekly earnings of $339, or about 15%. Assuming a full-time, full-year work schedule, we estimate that these workers lost an average of $2,634 annually due to workplace violations, out of total earnings of $17,616.
Survey authors estimated that approximately 1,114,074 workers in the three cities combined experience least one pay-based violation per week. Extrapolating from this figure, front-line workers in low-wage industries in Chicago, Los Angeles and New York City lose more than $56.4 million per week as a result of employment and labor law violations.

When impacted workers and their families struggle in poverty and constant economic insecurity, the strength and resiliency of local communities suffer. When unscrupulous employers violate the law, responsible employers are forced into unfair competition, setting off a race to the bottom that threatens to bring down standards throughout the labor market. And when significant numbers of workers are underpaid, tax revenues are lost.

The report recommends three principles that should drive the development of a new policy agenda to protect the rights of workers:

  • Strengthen government enforcement of employment and labor laws
  • Update legal standards for the 21st century labor market
  • Establish equal status for immigrants in the workplace

OSHA under fire from DOL Inspector General reports

Tuesday, April 7th, 2009

OSHA has come under withering criticism in a report from the Department of Labor’s inspector general for improperly enforcing safety and health laws against high risk employers with a history of safety violations and/or fatalities. In summarizing the report, Occupational Health & Safety notes: “The March 31 report says EEP [Enforced Enhancement Program] was mismanaged so badly that OSHA did not comply with EEP’s requirements for 97 percent of sampled cases qualifying for it. No appropriate enforcement action was taken in 29 cases, the IG found — and those employers subsequently experienced 20 fatalities, of which 14 deaths shared similar violations, the report states.”
The report – Employers With Reported Fatalities Were Not Always Properly Identified and Inspected Under OSHA’s Enhanced Enforcement Program (PDF) – summarizes the results of an audit of 325 work place inspections conducted under EEP from 2003 to 2008 in the Atlanta, Chicago, and Dallas regions.

The Pump Handle posts not just about this report, but also about a second report by the DOL Inspector General concerning the services provided by Randy Kimlin. Celeste Monforton discusses remuneration and oversight irregularities in regards to the consulting services of Kimlin, friend of OSHA chief Ed Foulke. According to investigative reporting by Washington Post reporter Jeff Smith, Kimlin’s salary for his contract was “higher than that received by Vice President Cheney, any member of Congress and Foulke himself during that period.” And the contract was awarded without competition: Procurement Violations and Irregularities Occurred in OSHA’s Oversight of a Blanket Purchase Agreement (PDF)

For more commentary and news on these reports:
Claims Journal: Labor Department Enforcement Lacking, Report Finds
OSHA Underground takes issue with the report on weak enforcement of fatalities: IG’s Report Links Weak Enforcement To Job Fatalities and suggests that OSHA Should Request Repayment From Consultant
Washington Post: Initiative On Worker Safety Gets Poor Marks – IG’s Report Links Weak Enforcement To Job Fatalities
AFL-CIO Now Blog: Sweeney: Bush OSHA Failure to Enforce Job Safety Law Cost Workers’ Lives
Associated Press: Labor Department enforcement lacking, probe finds

Your Government at Work – Worker injury research you can actually use

Monday, November 19th, 2007

A cornerstone of Lynch Ryan’s work for more than twenty years, a long-held mantra, has been that employees who work for good employers — employers who care for their workers and show it by the way they treat them — report all work injuries when they happen, get expeditious treatment and return to work faster. Moreover, their injuries cost significantly less than those of employees who work for less caring employers. A major driver for low workers’ compensation costs is the quality of the relationship between employer and employee.
We’ve seen this in our consulting work time and again, but it’s nice to have independent research confirm the mantra.
In the mid-1960s, the Department of Labor’s Employment and Training Administration (at that time called the Office of Manpower, Automation, and Training ) wanted to understand specific issues pertaining to the U.S. labor market, such as retirement, the return of housewives to the labor force, and the school-to-work transition. To do that it began conducting longitudinal studies, studies that look at a random group of like people to see how they develop over time. The Office began four such studies following groups of young men, older men, young women and, no, not “older” women, but rather “mature” women. The studies were originally targeted for five years, but, because they were yielding a mountain of data, they were extended until 1983, allowing other agencies to piggy-back along to glean even more information about how these first baby-boomers and World War II veterans were maturing in post-war America.
Because of the success of these studies, the Bureau of Labor Statistics decided to conduct an even more ambitious project, and in 1979 it launched the “National Longitudinal Survey of Youth 1979,” (NLSY79)
NLSY79 randomly selected and interviewed a cohort of 12,686 young Americans, 14 to 22 years old, all born between January 1,1957 and December 31, 1965, and it has been interviewing them regularly ever since, for nearly three decades now. As of 2004, there were 7661 people still in the survey group. These people have provided profound and relevant data about the aging of the last of the eighty million American baby-boomers.
What does this have to do with workers’ compensation? Actually, quite a lot.
Until I read Joe Paduda’s recent blog post, I was unaware that any researchers had ever mined the NLSY79 data for workers’ compensation insights. Thanks to Joe I have been enlightened. Thank you, Joseph.
In 2005, Darius Lakdawalla, Robert Reville and Seth Seabury of the Rand Institute for Civil Justice published “How Does Health Insurance Affect Workers’ Compensation Filing” (this is a Working Paper, meaning it has not been formally peer-reviewed). Using NLSY79 data, they confirmed Biddle and Roberts 2003 Michigan study (purchase required), which found that only about 55% of workers sustaining lost time injuries ever file claims for benefits, as well as an Oregon state-sponsored study of the 2002 Oregon Population Survey suggesting that 54% of workers reporting workplace injuries filed claims. They also found that unionized workers were more likely to file claims following work injuries.
Moreover, the Rand researchers found that workers without health insurance are about 15% less likely to file a claim than injured workers with health coverage.
A still more surprising finding may be that workers at companies that merely offer health insurance benefits are 50% more likely to file a claim after suffering a work injury than workers at companies that do not offer health insurance benefits.
However – and here is the major finding for me – lost time, as well as the cost of lost time for these workers who file more claims is about 20% less than for the workers who are not offered health insurance.
Finally, other types of fringe benefits – like paid vacation days – also seem to be associated with higher filing rates. For example, when both health insurance offers and paid vacations are present in the same employer, both variables are significant (at the 95% confidence level) and both have coefficients around .10 for claim filing.
What does this tell us? Well, for me it reinforces our mantra. These employees may report more injuries, but, as the NLSY79 data show, they return to work faster and their injuries cost significantly less than do the injuries of employees who work for employers who do not provide these benefits. Quod est demonstrandum.
The Rand study is compelling and instructive, but you do have to know a few things about statistical research to get the most out of it. Nonetheless, it should provide fuel for further workers’ compensation research using the NLSY79 treasure chest of demographic data. This stuff is too good to sit on a shelf gathering dust.

New Overtime Regulations Impact Workers Compensation

Monday, October 4th, 2004

[We are pleased to welcome as a guest blogger today our favorite actuary, Don Bashline of Bashline & Associates, based in Watertown, MA. Don has some interesting thoughts on the federal government’s new regulations pertaining to overtime, which have a direct impact on workers compensation.]
On August 23, 2004, the U.S. Department of Labor’s new regulations defining worker eligibility for overtime pay went into effect. In a possible attempt at subliminal spin, the program is called “Fairpay.” Let’s say it’s “fair” for some and not so fair for others. For a critical view of the regs, see the white paper at the Economic Policy Institute. Although the net effect of the new regulations won’t be totally clear for a while, no one disputes that some low-wage workers (earning less than $23,660 per year) will gain overtime protection, while many others will lose it. Among the apparent losers: sous chefs, childcare workers and a very large number of supervisors…
The regulations are complex and employers will have some flexibility in implementing them. There have already been cases where employers have given raises (good news?) to employees near the $23,660 threshold, resulting in those workers losing eligibility for overtime (bad news!). Others have chosen to preserve overtime eligibility for workers in high-demand occupations (for example, nurses) that theoretically could have been exempted under the new regulations.
What does this mean for workers compensation? The net effect of the new regulations is to lower the wages of many workers. This will impact workers compensation in two ways: First, overtime wages are included in the calculation of an injured worker’s average weekly wage. With changes in eligibility for overtime, average weekly wages for many workers will decline. As a result, the weekly workers comp indemnity payments for these “exempt” injured workers will also decline.
In addition, these changes will impact workers compensation premiums, which are calculated based on a rate per $100 of payroll. With payrolls declining due to the new regulations, insurance premiums will also decline. Insurers, particularly those who have a high percentage of premiums in affected classifications, will need to think about calculating the estimated impact of these changes on both premium income and claim costs. Employers, especially those who are self-insured, might also need to assess the impact of the new rules on their projected workers compensation costs.
The impact of these new regulations on workers comp calls for careful scrutiny in the coming months. LynchRyan will keep you posted.

Workplace deaths decline

Monday, October 20th, 2003

The good news? In 2002, workplace deaths fell by 6.6% (excluding 9/11). This marks the lowest level in the ten years the census has been conducted. The bad news? Some jobs are still way too risky.

The Bureau of Labor Statistics just issued its annual report on the most dangerous jobs, on-the-job fatality rates, and other work-related injury and death statistics.

Another positive note in this year’s report is that workplace homicides continued to drop, falling to 609 – a sharp contrast to the 1984 high of 1,080. But disturbingly, homicide is the chief cause of workplace fatalities among women. Overall, highway accidents are the single biggest killer, representing a quarter of all work-related deaths. The full report can be accessed at the BLS site.