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Agency Oversight: Division of Occupational Safety and Health

Posted on Feb 10, 2010
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A Weakened Enforcement Agency
The Division of Occupational Safety and Health (DOSH or Cal/OSHA) enforces the laws adopted by the legislature to ensure that workers’ places of employment are safe and healthy. Cal/OSHA also sets administrative regulations to implement the laws.

Inspector RatiosChronic Understaffing
Regrettably, Cal/OSHA has been chronically underfunded for over two decades, so much so that it has not been effective in doing its job of protecting California workers. The state has 17 million workers and one million worksites. Yet Cal/OSHA has been allotted only 203 inspector positions with only 187 positions filled. It would take Cal/OSHA 189 years to inspect every workplace in California. There are more Fish & Game Wardens (200) in California than Cal/OSHA inspectors.

The ratio of inspector to workers is one of the worst in the nation. In 2007, Cal/OSHA had one inspector for every 84,860 workers. By comparison, as shown in Table 1, other states that run their own OSHA programs have far higher ratios of inspectors to workers. As retiring Cal/OSHA Senior Safety Engineer Jack Oudiz stated in his 2009 farewell memo about the consequences of chronic understaffing:

“When workloads are too great for officers and inspectors, inspections and accident investigations are rushed, witnesses are not interviewed, evidence is not collected, citations are not issued or are given away to avoid time consuming appeals, inspections are conducted by letter rather then in person, some accidents even fall through the cracks and never get investigated.”

Total inspections and citations have steadily declined for 15 years. Table 2 shows that in 1992, there were 12,580 on-site inspections and 29,259 citations. In 2005, on-site inspections dropped to 8,176 and citations to 16,467 or a decline of 35% and 44% respectively.

DOSH inspections The number of days it takes for Cal/OSHA to begin inspections or investigations have increased. In 2009 in certain enforcement offices, despite a law that requires inspections be initiated within 14 days of a complaint or for serious formal complaints, within 3 days, it may take a month to three months from the time of a complaint to an inspection occurring. In many cases, complaints are never investigated. When investigations are done and final orders of citations are issued, inspectors often fail to conduct independent verification that a hazardous condition has been corrected. They instead rely on employers’ claims that they have abated the hazard.

The consequences of the agency’s understaffing can be serious for workers. Maria Isabel Vasquez Jimenez died in May 2008 from heat while working for Merced Farm Labor. Her employer was fined $2,250 in 2006 for serious occupational safety violations but Cal/OSHA never collected the fine. Nor did it check to be sure that her employer actually corrected the violations. Her employer’s repeated heat safety violations that went unpunished by Cal/OSHA ultimately led to her death. On July 30, 2009, the American Civil Liberties Union (ACLU) filed a lawsuit on behalf of the UFW and five farm workers against the State of California and Cal-OSHA. The complaint catalogs the illnesses and deaths of workers, including Maria, that could have been avoided.

Penalties Too Low to Change Behavior of “Bad Actor” Employers
When inspections occur and violations are found, the penalties that are assessed even for serious violations are too low to have a meaningful deterrent effect. For serious violations, the legislature set the maximum penalty at $25,000 per violation. Cal/OSHA's regulations set a base penalty of $18,000 from which numerous reductions can be made. These penalty amounts are too small to change the behavior of major corporations and, as a result, many continue to put workers’ lives at risk.

The legislature set the maximum penalty for general violations at $7,000 per violation. But Cal/OSHA starts with base penalties of $1,000, $1,500, or $2,000, and from there penalties have dropped to between $300 and $800. Penalties almost never reach the $7,000 maximum.

Cal/OSHA’s penalty structure is only part of the problem. The fact that the Appeals Board and its administrative law judges routinely overturn the inspectors’ penalty assessments has led to inspectors selecting penalty amounts that would withstand scrutiny by the Board. Knowing that they will only be slapped on the wrist with small penalty amounts, employers are not scared of Cal/OSHA. And as noted above in the death of Jimenez in the Merced Farm Labor case, even the reduced penalties are usually not collected by Cal/OSHA.

Underreporting of Injuries
When the chances of being inspected by Cal/OSHA are slim and the penalties are so small, employers are not afraid of Cal/OSHA. It is therefore not surprising, then, that underreporting of all work-related injuries is estimated to be as high as 70% despite laws that require the reporting of workplace injuries. Knowing that there are few consequences for their actions, employers engage in illegal intimidation of workers and put pressure on medical providers so that injuries go unreported.

An October 2009 Government Accounting Office (GAO) report revealed that 53% of medical providers reported that they were pressured by company officials to downplay injuries; and more than one-third were asked by company officials to withhold necessary medical treatment to injured workers so the injury wouldn’t be recorded on the OSHA log.

In addition, the health practitioners also reported that many workers said they were afraid of discipline or job termination for reporting injuries. The New York Times' coverage of the GAO report highlights the many factors that result in inaccurate data. In the article, Senator Patty Murray, Democrat of Washington and chairwoman of the Subcommittee on Employment and Workplace Safety states that there are no real consequences to employers for incorrect reporting because, "the system, to this point, has been all too easy to game.” When the nature and extent of workplace injuries are not accurately reported, policy makers do not know about and cannot address systemic problems.

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