02.24.17

By: Jordan Barab
Source: Economic Policy Institute

Why records matter to worker safety

Another week and Congressional and White House attacks on worker rights and safety continue. Here’s another proposed Congressional action guaranteed not to make headlines, but which will nevertheless have a damaging impact on worker safety.

Last week, Rep. Bradley Byrne (R-AL) introduced a “resolution of disapproval” under the Congressional Review Act (CRA) to overturn the “Volks Rule,” which allows the agency to continue prosecuting recordkeeping violations as it had done in the first 40 years of its existence.

Overturning the Volks Rule will result in more workers being injured, and it will penalize responsible employers.

Since 1972, OSHA has required many employers to record workplace injuries and illnesses, and to keep those records for five years. The ability to accurately identify who is getting hurt in the workplace, where and why, is essential information that workers and employers need to target injury prevention efforts and assess their effectiveness. OSHA also uses these statistics to develop standards and target enforcement at the most dangerous workplaces. And the Bureau of Labor Statistics uses these numbers to determine national trends in workplace safety and health. Requiring employers to keep these records for five years was the only way OSHA could ensure that accurate records are being made and maintained by employers, and the only way that workers and employers can evaluate over time whether improvements are working.

And it goes without saying that workplace-specific injury records are only useful if they are complete and accurate. Unfortunately, however, employers have an incentive to cheat because high injury numbers can result in increased workers’ compensation costs, denial of government contracts, more OSHA inspections and sometimes the loss of monetary bonuses.

The 40-year history of OSHA is filled with examples of serious breaches in employers’ willingness to keep accurate records. Starting in the Reagan administration and continuing into the Obama Administration, OSHA has issued large penalties after identifying a pattern of inaccurate recordkeeping. In all of these cases, the strong enforcement action taken by the agency resulted not only in significant changes in the recordkeeping practices of the companies but also in major improvements in working conditions the companies’ safety and health programs.

In 2012, a court decision overturned OSHA’s 40-year recordkeeping practice making it impossible for OSHA to effectively enforce against recordkeeping violations and rendering meaningless the OSHAct’s provision that OSHA require employers to keep accurate records.

The Occupational Safety and Health Act says that OSHA must finish all enforcement actions within 6 months of when a violation is identified. So if an OSHA Inspector identifies a problem, for example, a machine without a guard, the agency has only 6 months to issue a citation.  OSHA has always considered any inaccurate or missing records during that five-year period to be a record keeping violation.

But without being able to enforce any violation within the five-year period, enforcement of recordkeeping accuracy would be almost impossible. Suppose, for example, OSHA inspected a workplace and among other health and safety problems, the inspector found a pattern of numerous serious and intentional recordkeeping violations over the past five years. The last recordkeeping violation identified, however, was 3 months before the inspector arrived. If it takes OSHA more than three months to issue the citations (not unusual as OSHA inspection procedures can be extensive) the six-month period from the last recordkeeping violation would have passed and the pattern of serious violations that the inspector had identified would go unaddressed. It would be impossible for OSHA enforce the law against employers with widespread recordkeeping abuses. The losers would be the workers because there would no longer be any way for OSHA to force employers to keep accurate records that could identify hazardous conditions. Not surprisingly, the impact of the court’s decision has been significant and detrimental: recordkeeping violations dropped 75 percent after the decision.

One of the three judges in the Volks case, however, ruled that it was only the language in the existing recordkeeping rules that prevented OSHA from treating violations as continuing, allowing OSHA to amend its rulemaking standard clarifying the five-year retention period is an ongoing violation. OSHA issued the amendments last December.

Across this country, there are many responsible employers who recognize that protecting the safety and health of their employees is a core value. These employers, who maintain accurate injury records, deserve a level playing field. If this rule is overturned, then responsible employers will be at further disadvantage competing with employers who cut corners on safety.

Rep. Byrne’s CRA resolution against OSHA’s Volks rule is another in a pattern of Congressional attacks on worker protections.

Jordan Barab is the former Deputy Assistant Secretary for OSHA from 2009-2017.