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Responding to a complaint filed with the U.S. Department of Labor, the federal government has rebuked the way the Brown Administration has administered the Cal-OSHA program.

Cal-OSHA has been ordered by U.S. Department of Labor area director David Shiraishi to respond to four findings. The four findings essentially validate the allegations made by a Washington D.C. group, PEER (“Public Employees for Public Responsibility”) in a “CASPA complaint” to the U.S. Department of Labor. That complaint, and an analysis of Cal-OSHA’s problems from former OSHA official Garrett Brown, are linked below.

Brown also filed a whistleblower complaint with the California State Auditor.

The U.S. Department of Labor finds fault with Cal-OSHA in four areas:

1. An inadequate number of inspectors

2. Failure to follow up inspections of companies with serious violations

3. Failure to issue safety and health citations in a timely manner, leading to delays in abatement and prolonged employee exposure to hazards

4. Failure to respond to worker complaints in a timely manner

What’s the background on this controversy and why is it important for California workers’ comp?

Unsafe workplaces are more likely to lead to work injuries, period. The best way to cut down on workers’ comp claims and expenses is to prevent injuries in the first place.

Cal-OSHA was a contentious issue under Governor Schwarzenegger.In 2009 legislative hearings focused on Cal-OSHA enforcement problems, particularly with the Cal-OSHA Appeals Board and the administration of then Cal-OSHA chief Len Welsh.

Health and safety advocates had high hopes in 2011 at the beginning of  Governor Brown. They expected that Brown would usher in a new era of strong commitment to Cal-OSHA.

In part their concern was the sheer lack of adequate Cal-OSHA staffing. As Brown’s administration began, it inherited an understaffed Cal-OSHA. In early 2011 Cal-OSHA had 196 inspectors and 14 vacancies. The ratio was approximately 1 inspector per 81,000 workers. To get a measure of comparison (using some 2006 figures), the average inspector to workers ratio of all U.S. states was approximately 1 inspector to 66,000 workers. Nevada had one inspector per 33,000 workers, Washington 1 inspector per 26,000, and Oregon 1 inspector per 22,000. British Columbia had 1 inspector per 10,000.

For whatever internal reasons, it appears that the Marty Morgenstern-led California Labor and Workforce Development Agency did not make upgrading Cal-OSHA a priority between 2011 and 2013.

This was during the time of negotiation, enactment and implementation of the 2012 workers’ comp reforms, and perhaps the focus of Morgenstern and Christine Baker was on the workers’ comp reforms which were supported by a broad employer coalition, some of whom would not favor tougher OSHA enforcement.

In any event, Cal-OSHA continued in turmoil, with morale problems and infighting over staffing and budgetary issues.

Ellen Widess, whose appointment in 2011 as Chief of Cal-OSHA had been applauded by many in the occupational health and safety community, was forced out in 2013, replaced by Juliann Sum as Acting Chief. Widess was controversial with some employers. For example, a blogger at caloshablog.com charged that “Widess was seen by employers as fostering a divisive atmosphere in California’s safety and health community, seeking to punish “bad” employers while doing little to encourage good ones.”

Supporters of Widess charged that  the California Chamber of Commerce, Grimmway Farms and other large employers had convinced Marty Morgenstern and Christine Baker to axe Widess due to unhappiness with Widess’ plans for aggressive OSHA enforcement. Detailed allegations as to the circumstances  of the Widess departure can be found in this article “Former Cal OSHA Staffer Says He Witnessed Political Coup That Forced Out Agency Head”:

http://www.ishn.com/articles/99079-former-calosha-staffer-says-he-witnessed-political-coup-that-forced-out-agency-head

Morgenstern departed in 2013, succeeded by David Lanier.

And so in February 2014 PEER filed a CASPA complaint with the U.S Department of Labor.

Although the U.S. Department of Labor did  not issue findings on the CASPA complaint til June 2015, a 2013 U.S. Department of Labor Monitoring report (prepared by Federal OSHA Region IX) was sharply critical of Cal-OSHA. Here is a summary of that report’s findings:

“The major issues discussed in this report include the failure to fill vacant staff positions, the low rate of serious violations, and the long citation lapse time. In addition, the report addresses issues in the investigation of claims of retaliation against workers who raise safety and health concerns, and the accounting of funds received through the federal grant.

Cal/OSHA remains understaffed and, as a result, is challenged to fulfill its important mission. The lack of staffing affects the citation lapse time, the number of inspections conducted, and the response time to complaints. In particular, the number of inspections conducted by current Cal/OSHA staff is well below the federal average. To compound this problem, there has been a steady decrease in inspectors since FY 2011. Although steps are being taken to fill positions, there are still a significant numbers of field compliance staff vacancies.

Cal/OSHA inspections result in a rate of serious, willful or repeat violations significantly lower than the federal average. This suggests that the agency’s limited resources are not being applied most efficiently and effectively. It is likely that several factors contribute to this low rate, including the targeting of low hazard industries in the Labor Enforcement Task Force initiative, and the inappropriate designation of non-enforcement activities as inspections in the Integrated Management Information System (IMIS) database. This report recommends that Cal/OSHA examine the cause of the low frequency of these violations and implement corrective actions to improve inspection targeting.

Cal/OSHA experiences a long citation lapse time, the time between the start of an inspection and the issuance of a citation. While many employers abate serious hazards on-the-spot when they are pointed out by a compliance officer, some employers will not abate the hazard until they receive the citation, thus continuing to expose employees to the hazard.

Review of Cal/OSHA’s program to protect whistleblowers from retaliation found that documentation of the cases was often not adequate, and that, in four of the nineteen cases examined, that the ultimate conclusion of the investigation was not supported by the evidence.

Finally, Cal/OSHA utilized funds under the grant for activities such as crane permits, pre- job safety meetings and inspections conducted in exempt NAICS codes. In addition, the time spent by Senior Safety Engineers supporting and assisting compliance officers was being allocated against program costs instead of administrative costs.

 Many of these serious concerns have been raised in the 2012 and earlier FAMEs, as well as directly with Cal/OSHA leadership by federal OSHA officials. A total of 26 findings and three observations are identified in this FAME Report. Of the 15 findings from the FY 2012 FAME Report, 10 are still outstanding and have been carried over, one was converted to an observation, and four were verified as complete.”
Although the Brown Administration has made some efforts since 2013 to bring on more inspectors, the U.S. Department of Labor makes it clear that it will be looking carefully at how Cal-OSHA conducts business. This would seem to greatly raise the ante for those currently at the helm over Cal-OSHA, Lanier, Baker and Cal-OSHA chief Juliann Sum.
Theoretically, California could lose control of its OSHA program. This happened in Hawaii, but is unlikely to happen with a state as large as California.
The Federal rebuke does create a stain on the record of the Brown Administration.
Here is a link to the July 2015 U.S. Department of Labor findings on the CASPA complaint:

Cal-OSHA2015

A summary of Garrett Brown’s allegations which were at the heart of the PEER complaint can be seen here:

Cal-OSHA.GarrettBrownSummary

A pdf of the  2013 report on Cal-OSHA is here:

Cal-OSHA2013FederalMonitoringReport

Garrett Brown’s whistleblower letter to the California State Auditor is here:

Cal-OSHA.GarrettBrownAuditorComplaint

Stay tuned.

Julius Young

www.workerscompzone.com

www.boxerlaw.com

Julius Young

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