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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 OSHAs 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 OSHAs 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
  AMERICAS 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

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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

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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 CSHOS DETERMINATION
  OF AN EMPLOYERS WILLFULNESS OR REPEATED VIOLATIONS

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SVEP

• CSHOS 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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SVEP PROCEDURES FOR 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

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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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SVEP PROCEDURES FOR 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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SVEP PROCEDURES FOR OSHA

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

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SVEP PROCEDURES FOR OSHA

• CFOS AND CEOS 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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SVEP SETTLEMENT 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

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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

• CSHOS MAKE MOST OF THE DECISIONS UNDER SVEP
• CSHOS CAN REQUEST THAT AN SVEP VIOLATORS
  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

• CSHOS, (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. DONT 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