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PROTECTING AMERICA’S WORKERS: AN 

ENFORCEMENT UPDATE FROM THE 

OCCUPATIONAL SAFETY AND 

HEALTH ADMINISTRATION 

HEARING 

BEFORE THE

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

COMMITTEE ON EDUCATION 

AND THE WORKFORCE 

U.S. HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTEENTH CONGRESS 

FIRST SESSION 

HEARING HELD IN WASHINGTON, DC, OCTOBER 7, 2015 

Serial No. 114–30 

Printed for the use of the Committee on Education and the Workforce 

( 

Available via the World Wide Web: www.gpo.gov/fdsys/browse/ 

committee.action?chamber=house&committee=education 

or 

Committee address: http://edworkforce.house.gov 


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COMMITTEE ON EDUCATION AND THE WORKFORCE 

JOHN KLINE, Minnesota, Chairman 

Joe Wilson, South Carolina 

Virginia Foxx, North Carolina 

Duncan Hunter, California 

David P. Roe, Tennessee 

Glenn Thompson, Pennsylvania 

Tim Walberg, Michigan 

Matt Salmon, Arizona 

Brett Guthrie, Kentucky 

Todd Rokita, Indiana 

Lou Barletta, Pennsylvania 

Joseph J. Heck, Nevada 

Luke Messer, Indiana 

Bradley Byrne, Alabama 

David Brat, Virginia 

Buddy Carter, Georgia 

Michael D. Bishop, Michigan 

Glenn Grothman, Wisconsin 

Steve Russell, Oklahoma 

Carlos Curbelo, Florida 

Elise Stefanik, New York 

Rick Allen, Georgia 

Robert C. ‘‘Bobby’’ Scott, Virginia 

Ranking Member 

Rube ́n Hinojosa, Texas 

Susan A. Davis, California 

Rau ́l M. Grijalva, Arizona 

Joe Courtney, Connecticut 

Marcia L. Fudge, Ohio 

Jared Polis, Colorado 

Gregorio Kilili Camacho Sablan, 

Northern Mariana Islands 

Frederica S. Wilson, Florida 

Suzanne Bonamici, Oregon 

Mark Pocan, Wisconsin 

Mark Takano, California 

Hakeem S. Jeffries, New York 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Juliane Sullivan, Staff Director 

Denise Forte, Minority Staff Director 

SUBCOMMITTEE ON WORKFORCE PROTECTIONS 

TIM WALBERG, Michigan, Chairman 

Duncan Hunter, California 

Glenn Thompson, Pennsylvania 

Todd Rokita, Indiana 

Dave Brat, Virginia 

Michael D. Bishop, Michigan 

Steve Russell, Oklahoma 

Elise Stefanik, New York 

Frederica S. Wilson, Florida, 

Ranking Member 

Mark Pocan, Wisconsin 

Katherine M. Clark, Massachusetts 

Alma S. Adams, North Carolina 

Mark DeSaulnier, California 

Marcia L. Fudge, Ohio 


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C O N T E N T S 

Page 

Hearing held on October 7, 2015 ............................................................................ 1 

Statement of Members: 

Walberg, Hon. Tim, Chairman, Subcommittee on Workforce Protections ... 1 

Prepared statement of ............................................................................... 4 

Wilson, Hon. Frederica S., Ranking Member, Subcommittee on Workforce 

Protections ..................................................................................................... 36 

Prepared statement of ............................................................................... 38 

Statement of Witnesses: 

Michaels, Hon. David, PhD, MPH, Assistant Secretary, Occupational 

Safety and Health Administration, U.S. Department of Labor ................ 6 

Prepared statement of ............................................................................... 9 

Additional Submissions: 

Assistant Secretary Michael: ...........................................................................

Response to questions submitted for the record ..................................... 97 

Chairman Walberg: ..........................................................................................

Prepared statement of the American Petroleum Institute .................... 42 

Questions submitted for the record ......................................................... 94 

Letter dated October 8, 2015, from State of Michigan, Department 

of Agriculture and Rural Development. ............................................... 51 

Letter dated October 7, 2014, from the National Roofing Contractors 

Association. ............................................................................................. 53 

Letter dated October 7, 2015, from the Fertilizer Institute .................. 56 

Report ‘‘Workplace Injuries and Illnesses Safety (WIIS) Report’’ 

American Petroleum Institute .............................................................. 59 

Ms. Wilson: ........................................................................................................

Letter dated October 7, 2015, from Canada, Michelle, United Support 

Memorial for Workplace Fatalities (USMWF)—Family Members .... 90 

Letter dated October 5, 2015, from Fergen, Debi, Outreach Director 

USMWF—United Support Memorial for Workplace Fatalities ......... 83 

Letter dated October 7, 2015, from Mattern, Amy, United Support 

Memorial for Workplace Fatalities (USMWF)—Family Members 

and Daughter of Deceased Worker ....................................................... 81 

Letter dated October 7, 2015, from McCardle, Linda, United Support 

Memorial for Workplace Fatalities (USMWF)—Family Members .... 88 

Letter dated October 7, 2015, from Rodriguez, Katherine, CPA, 

United Support Memorial for Workplace Fatalities (USMWF)— 

Board Members ...................................................................................... 85 

Letter dated October 7, 2015, from Honomichi, Trina, United Support 

Memorial for Workplace Fatalities (USMWF)—Family Members .... 91 


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PROTECTING AMERICA’S WORKERS: AN ENFORCEMENT UPDATE FROM THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION 

Wednesday, October 7, 2015 

U.S. House of Representatives 

Committee on Education and the Workforce 

Subcommittee on Workforce Protections 

Washington, D.C. 

The subcommittee met, pursuant to call, at 1:00 p.m., in Room 

2261, Rayburn House Office Building. Hon. Tim Walberg (Chairman of the subcommittee) presiding. 

Present: Representatives Walberg, Stefanik, Wilson, and Pocan. 

Also Present: Representatives Kline, Hartzler, and Rogers of Alabama. 

Staff Present: Janelle Belland, Coalitions and Members Services 

Coordinator; Ed Gilroy, Director of Workforce Policy; Jessica Goodman, Legislative Assistant; Callie Harman, Legislative Assistant; 

Tyler Hernandez, Press Secretary; Nancy Locke, Chief Clerk; John 

Martin, Professional Staff Member; Geoffrey MacLeay, Professional 

Staff Member; Brian Newell, Communications Director; Krisann 

Pearce, General Counsel; Lauren Reddington, Deputy Press Secretary; Molly McLaughlin Salmi, Deputy Director of Workforce Policy; Alissa Strawcutter, Deputy Clerk; Loren Sweatt, Senior Policy 

Advisor; Olivia Voslow, Staff Assistant; Joseph Wheeler, Professional Staff Member; Tylease Alli, Minority Clerk/Intern and Fellow Coordinator; Christine Godinez, Minority Staff Assistant; Brian 

Kennedy, Minority General Counsel; John Mantz, Minority Labor 

Detailee; and Richard Miller, Minority Senior Labor Policy Advisor. 

Chairman WALBERG. How is that for a gavel? I was mentioning 

to Loren that from my old Taekwondo days I did not want to bust 

the table in half here, but fortunately, I was not very good. 

A quorum being present, the subcommittee will come to order. 

Good afternoon, everyone. I would like to extend a special welcome to you, Dr. Michaels. We were just trying to decide how long 

it has been since we were in the same room together. It is right 

about four years, or a little less than four years, so it is good to 

have you back in front of us. We thank you for being with us to 

discuss an issue that is incredibly important to every one of us, ensuring the health and safety of American workers. And also, the security of their jobs. 


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We all agree that men and women working hard to make a living 

deserve workplaces that are safe and working conditions that protect their health and well-being. In the twenty-first century workplace, employees should be able to put in a day’s work without having to fear being injured on the job or having to worry whether 

they will be able to return home to their families at the end of the 

shift. That is why we continue to demand every American have 

strong and effective health and safety protections. 

We are here today to take a closer look at these rules and the 

enforcement process to make sure they are working well for both 

employees and employers. Providing for the health and safety of 

American workers is an important responsibility, but it is important to be responsible in carrying it out. Otherwise, we will end up 

with inadequate protections and unnecessary regulatory burdens 

that stifle productivity and job creation, while doing little to keep 

workers safe. 

That is why this Committee has long urged Dr. Michaels, his colleagues at the Occupational Safety and Health Administration, and 

others to engage in responsible safety enforcement. By identifying 

gaps in safety and working with employers and other key stakeholders to develop positive solutions, we can ensure that federal 

policies are effective and workers are safe, and these are both goals 

that I believe stretch across party lines. 

President Obama promised, and I quote, ‘‘an unprecedented level 

of openness in government,’’ and vowed to establish a system of 

transparency, public participation, and collaboration. That has not 

always been the case, and changing enforcement policies in one 

area in which we have seen a lack of transparency, public participation, and collaboration. In fact, on several occasions, the administration has used what it calls ‘‘enforcement guidance’’ to alter significant rules without public input. This one-sided approach is not 

the kind of responsible rulemaking and enforcement American 

workers deserve. 

When actions of the administration or other policymakers are in 

conflict with the best interest of the American people, it is our responsibility to speak out. So that is what we did with OSHA. We 

spoke out when they altered longstanding policies outside the public rulemaking process. We spoke out when they failed to conduct 

proper oversight of their own enforcement activities. We spoke out 

when they spent significant time and responses pursuing unsound 

and unnecessary regulatory schemes. OSHA, on several occasions, 

has listened to some of our concerns and we appreciate that. Not 

all of our concerns, but enough to say that we have made progress 

in a number of areas. 

As a result of our oversight, OSHA is pursuing a responsible approach to protecting the men and women employed on family 

farms. More small businesses are able to participate in an important safety and health program, and employees in the telecommunications industry have more clarity and certainty. Workers 

are safer because we spoke up, the agency listened, and steps were 

taken to promote smart, responsible, regulatory policies. 

However, while we have made gains, there is still work to be 

done. This brings us back to the reason we are here today. Standing up for workers and ensuring safe workplaces remain leading 


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priorities for this Committee. We have seen what we can accomplish when we work together to improve the health and safety of 

American workers, and this hearing is an important part of these 

efforts. 

I look forward to hearing from Dr. Michaels on his agency’s regulatory enforcement actions, and I welcome the opportunity to discuss ways in which we can better protect hardworking men and 

women and provide greater clarity to job creators. 

[The statement of Chairman Walberg follows:] 


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Chairman WALBERG. With that, I will now—I would recognize 

the Ranking Member Wilson for opening remarks but I believe we 

have altered that. When she arrives, we will have the opportunity 

for her to make those then. But we appreciate you sitting in for the 

seat here. 

Pursuant to Committee Rule 7, all subcommittee members will 

be permitted to submit written statements to be included in the 

permanent hearing record, and without objection, the hearing 

record will remain open for 14 days to allow the statements, questions for the record, and other extraneous material referenced during the hearing to be submitted in the official hearing record. 

At this point, let me also recognize our colleague, Representative 

Hartzler, who does not sit on this subcommittee. She wishes she 

did, but has a great interest in this issue relative to OSHA and the 

regulatory standards. And so without objection, I would ask my colleagues to allow her to be seated and participate with the members 

of the Committee. 

Hearing none, welcome. 

It is now my pleasure to introduce today’s witness. Dr. David Michaels is the assistant secretary of the Occupational Safety and 

Health Administration at the U.S. Department of Labor here in 

Washington, D.C. Before coming to OSHA in December 2009—that 

is an extensive record as we talked about, of still being here for 

this long. That is impressive. Dr. Michaels was professor of Environmental and Occupational Health at the George Washington 

University, School of Public Health and Health Services, directing 

the department’s project on Scientific Knowledge and Public Policy. 

Dr. Michaels, since you last appeared before us, we have now a 

policy where we swear in our witnesses, so I will ask you at this 

time to stand and raise your right hand. 

[Witness sworn.] 

Chairman WALBERG. Let the record reflect Dr. Michaels answered in the affirmative as we expected. We thank you for that. 

You may take your seat. 

Before I recognize you to provide your testimony, let me briefly 

remind you of our lighting system. You know, the lighting system. 

And while we have five minutes allotted as my Chairman of the 

full Committee says so often, I am averse to holding you to that. 

We are glad to have you here. Now, if you start to get to 15 minutes or so then we might gavel you down then, but we want to hear 

what you have to say and appreciate you being here. I recognize 

you for your testimony. 

TESTIMONY OF THE HONORABLE DAVID MICHAELS, PHD, 

MPH, ASSISTANT SECRETARY, OCCUPATIONAL SAFETY AND 

HEALTH ADMINISTRATION, U.S. DEPARTMENT OF LABOR, 

WASHINGTON, D.C. 

Dr. MICHAELS. Thank you so much. Good afternoon. Chairman 

Walberg, Representative Pocan, Representative Hartzler. Thank 

you for inviting me here today. I am honored to testify about the 

work we at OSHA are doing to improve the safety and health of 

American workers. 

Over the past 44 years since OSHA was created, we have made 

dramatic strides in reducing work-related injuries, illnesses, and 


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deaths, but there is still much work to be done. In the almost four 

years since I last appeared before this subcommittee, we have accomplished a great deal. Today, I would like to highlight some of 

the progress we have made and the challenges that still remain. 

First, after extensive outreach, public comment, and review, 

OSHA has finalized important and lifesaving standards. These include measures to protect those working in shipyards, construction, 

and around electrical hazards. We also finalized a rule expanding 

injury and illness reporting requirements, and we have made significant progress towards updating our decades-old silica standard. 

Last year, at a DuPont Chemical plant in Texas, four workers 

were killed by a highly toxic chemical release. This came in the 

wake of the tragic explosion at the West Fertilizer Company that 

killed 15 people. Unfortunately, disasters like this are far too common. Since 2009, at least 28 significant chemical plant incidents 

have occurred resulting in over 79 worker deaths. 

To help prevent more tragedies, President Obama issued Executive Order 13650, instructing OSHA, the Environmental Protection 

Agency, the Department of Homeland Security, and other agencies 

to work together closely to improve chemical facility safety and security. Together, we undertook a comprehensive review of these 

programs, engaging in extensive stakeholder outreach to solicit 

feedback and identify best practices. 

As a result of these and other efforts, OSHA has taken steps to 

better protect workers at these facilities. First and foremost, we are 

working to modernize our process safety management standard 

that sets requirements for the management of highly hazardous 

substances. Towards this, OSHA issued a request for information 

on possible improvements. In addition, we issued memoranda explaining how we will apply the standard to certain chemicals, and 

clarifying the definition of retail facilities. We also memorialized 

our interpretation of the term, ‘‘Recognized and Generally Accepted 

Good Engineering Practices,’’ or RAGAGEP. 

At OSHA, we recognize that most employers want to do the right 

thing, and we are committed to ensuring they have the tools and 

the information they need. This is why we have made compliance 

assistance a priority, and we work diligently to provide training, 

educational materials, and consultation services to employers and 

workers. 

The cornerstone of this effort is our onsite consultation program 

for small and medium-sized businesses. Last year, over 26,000 employers took advantage of this free service, and through our VPP 

and SHARP programs, we recognize employers who have developed 

outstanding injury and illness prevention programs. 

Our enforcement programs specifically target the most dangerous 

workplaces and the most recalcitrant employers. Last year, Sarah 

Jones, a 27-year-old camera assistant was killed by an oncoming 

train during the filming of the movie, Midnight Rider. The 

filmmakers had been denied authorization to film on live railroad 

tracks but decided to do so anyway. Sarah Jones paid the ultimate 

price for that decision. We issued a fine of almost $75,000, sending 

a message to all employers that willful disregard for workers’ safety is unacceptable. 


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OSHA is also charged with enforcing the whistleblower provisions in 22 statutes that protect the safety, health, and well-being 

of the American public. If a worker who is covered by these laws 

is punished for raising a concern about toxic chemicals fouling our 

drinking water, the safety of passengers on railroads, accounting 

fraud, or a food manufacturer’s contaminated products, OSHA is 

charged with protecting that worker. 

Over the last few years, OSHA has significantly strengthened 

this program. To begin with, we established the whistleblower protection program as a separate directorate and increased staffing. 

We developed an online complaint form, enhanced training, and 

streamlined procedures. We have reduced our backlog, improved 

enforcement, and enhanced the consistency of our investigations. 

As the structure of employment relationships in this country undergoes dramatic change, workers are put at increased risk. OSHA 

has long addressed situations where more than one employer has 

a role in preventing injury and illness. When these employers fail 

to fulfill their responsibilities, the results can be tragic. 

Take the case of Day Davis, a 21-year-old recent Job Corps graduate. He was hired by a staffing agency and sent to work at a Bacardi Bottling plant in Jacksonville, Florida. It was his first day at 

a paid job ever. And Day Davis’s first day at work was his last day 

on earth. He was crushed to death just hours after he arrived because neither the temp agency nor the host employer provided him 

adequate training. Day Davis’s death and the shared responsibility 

of host and temporary employer for workers’ safety demonstrates 

why we must continue working to address the realities of the twenty-first century workplace. 

But we cannot fully address these challenges alone; we need your 

help. The OSH Act has not been updated in more than 44 years. 

There are areas where legislative improvements could help prevent 

needless injuries and deaths. These include increasing civil and 

criminal penalties to provide a real disincentive for employers, protecting the 10 million public sector employees who currently do not 

have the right to a safe workplace, and updating the whistleblower 

provisions of the OSH Act to more closely align with modern statutes that protect whistleblowers. 

So thank you again for the opportunity to testify today. I would 

be very pleased to answer any questions you may have. 

[The statement of Dr. Michaels follows:] 


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Chairman WALBERG. Thank you, Dr. Michaels, for your testimony, and I think as I listened, and I am sure my colleagues as 

well, we appreciate the fact of the task that you have. And when 

we hear the illustrations as well, that is where I think we link 

arms, join hands together in saying let us enforce, let us make sure 

we enforce and come alongside and make sure that our employers 

are following the regulations and the laws that are in place. I guess 

it is a question today in a big way is what we have relative to the 

plans moving forward. So I recognize myself for five minutes of 

questioning. 

In a recent Senate hearing, a Department of Labor official suggested the guidance documents did not change the underlying PSM 

standard, insisting these are simply clarifications. Fundamentally, 

these documents had changed the type of entities and drastically 

expanded, at least as I read them, the number of entities that are 

covered by the regulation. Let me ask you how OSHA can justify 

this as just simply a clarification? 

Dr. MICHAELS. Thank you for that question, Chairman Walberg. 

We are actually talking about I suspect three documents, and they 

are all quite different, so it is a little complex to answer that question about all three. But the basis of this is understanding that 

after the explosion at the West Fertilizer Plant, President Obama 

issued a directive, the executive order, telling us to look at these 

issues and make sure workers are protected. And we have done a 

number of things, and part of that are three memoranda that all 

follow the law very carefully but essentially tell either OSHA or 

tell employers how they should make sure workers are protected. 

The first of these, and probably the one that there is the most 

discussion about is around the retail exemption. 

Chairman WALBERG. Correct. 

Dr. MICHAELS. And that is probably the one that is most—— 

Chairman WALBERG. That was the largest. That was a drastic 

change. 

Dr. MICHAELS. Well, when you go back and look at the process 

safety measurement standard, it is clear to us the standard was 

being misinterpreted. Essentially, what the standard said was that 

retailers who are really identified as, for example, gas stations, entities that sell small amounts and keep small amounts of a material onsite should be exempt, but when we went back and looked 

at how that was being interpreted in one of our policies, we 

thought the way we were doing this was clearly wrong. West, for 

example, had 50,000 pounds of anhydrous ammonia onsite and 

they sold large quantities of it. Other facilities with 10,000 pounds 

onsite are not exempted from process safety management. In fact, 

there have been terrible events that have occurred at far lower 

quantities than those onsite at West. 

So we went back following the law very carefully and getting tremendous public input. You know, President Obama talked about 

this two years ago. We have held countless public meetings and 

meetings with stakeholders talking about what the meaning of that 

‘‘retail’’ exemption is and how to fix it. And so it was no surprise 

when we put out this memorandum changing this interpretation. 

Chairman WALBERG. To 3,800 businesses that were exempt beforehand, it was no small change for them. So I would suggest that 


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that is the challenge that I see, that that small change in how we 

defined retail and the exemption that came with that had a fairly 

significant impact. Financially, it can have a tremendously negative impact up to costing the business the opportunity to move and 

grow. I think that is the concern about the clarification process 

that goes on. And I think that is where best practices, bringing the 

stakeholders in for an extended period of time to look at this if this 

is going to be treated basically as a rule is important. 

How many lawsuits are pending related to the PSM guidance 

documents? 

Dr. MICHAELS. I cannot tell you how many lawsuits. I know there 

are several lawsuits. I do not know the number. But I believe that 

there are three documents, and there have been lawsuits associated with each one. I do not know if they are separate lawsuits or 

the same lawsuits, but there are several lawsuits. 

Chairman WALBERG. How many comments did you receive regarding December 2013 request for information regarding the retail 

exemption? 

Dr. MICHAELS. Well, you know, we raised the issues of the retail 

exemption in numerous public meetings. We held a dozen public 

meetings around the country and then two more, and so we had 

a huge number of meetings. I cannot tell you though. I would be 

happy to get back to you with how many written comments we got 

from the request for information, but we had countless meetings 

with our stakeholders. We formed a new alliance with the Fertilizer Institute, the Agricultural Retail Association, the firefighters, to discuss these issues, so we have had a huge amount of 

input. And I can give you more detail later on. 

Chairman WALBERG. I would be interested to know how many 

were in favor of these changes, especially looking at the example 

of West and the destruction that went on outside of the loss of life 

that was tremendous. Still with that, I would be interested to know 

the numbers that were in favor of any changes that went on as 

well. 

Yesterday, OSHA released an update of the Field Operations 

Manual. Does it contain any new multi-employer citation policy? 

Dr. MICHAELS. What are you referring to? 

Chairman WALBERG. Field Operations Manual. 

Dr. MICHAELS. That update simply memorializes many of the directives that we put out. There was nothing new in that. What that 

does is that puts in one place lots of documents and memos we had 

sent out to the field that we put on the web. 

Chairman WALBERG. But you are going to issue a new instruction manual then subsequent to this? 

Dr. MICHAELS. Well, the Field Operations Manual is actually a 

guide for our staff on what to do. You know, how do they operate 

in the field? And so there is nothing new in there. It is their instruction manual. 

Chairman WALBERG. My time is expired, and so now I recognize 

Mr. Pocan for your five minutes. 

Mr. POCAN. Sure. Thank you, Mr. Chairman. And thank you, Mr. 

Michaels, for being here. 

Let me ask you a general question about budget and then let us 

come back to the OSH Act updates, a couple of them that you menVerDate Sep 11 2014 01:55 Sep 17, 2016 Jkt 096821 PO 00000 Frm 00030 Fmt 6633 Sfmt 6602 E:\HR\OC\A821.XXX A821

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tioned. If I understand it, you have sufficient resources right now 

to inspect each jobsite once every 140 years on average. 

Dr. MICHAELS. That is about right. 

Mr. POCAN. And I believe the appropriations bill that was passed 

this year by the House cut that by about 15 percent, 32 million, 

and it is about 7 percent less than last year’s budget’s—last year’s 

levels. How is this going to impact you? Briefly, what is the impact? 

Dr. MICHAELS. Well, the concern I have, of course, is how that 

impacts the safety and health of workers across the United States. 

We would certainly do significantly less enforcement, and we know 

that enforcement has an impact. You know, there is a study done 

by business school professors from Harvard and Berkeley that was 

published in Science Magazine a couple years ago that showed that 

our random inspections, every single one of them, reduces injuries 

at the workplace we visit by 24 percent and saves the employer 

money. And so the fewer inspections we do, the more injuries are 

going to occur and the more costs are going to go up. And so we 

know that this is going to have a bad impact on workers. 

Mr. POCAN. Thank you. 

On the OSH Act updates, one of the things you mentioned were 

the civil and criminal penalties. And again, painfully low. If I understand it right, you are the only agency in the Department of 

Labor who is prevented from automatically adjusting the maximum 

penalties for inflation. If I remember right, according to the ‘‘Death 

on the Job’’ report, in 2014, there was a penalty for a fatality case 

that was $5,050. Could you just talk a little bit about the needs to 

adjust those? 

Dr. MICHAELS. No, that is sadly not uncommon. We do not issue 

penalties because there is a fatality, but because we see a violation. 

And the maximum penalty for a serious violation is $7,000, and we 

always discount it for small employers and for history and good 

faith. And so even when there are significant events where workers 

are killed and we have multiple violations, the fine is very low. I 

mean, an example, a few years ago we had a terrible incident at 

an oil refinery half owned by Shell and half owned by Saudi 

Aramco. You know, these are big companies. A worker named Jeff 

Davis was essentially virtually dissolved in an acid spill. His body, 

you could barely find it, and eight other workers were hurt. The 

total penalty against this multinational company was $175,000, 

which is pretty low. In comparison, EPA followed us in because 

crab and fish were killed by this acid spill. Their penalty was $10 

million. The value of human life seemed so low in that case. 

Mr. POCAN. Sure. Thank you. 

Also, you mentioned public sector employees. Eight to 10 million 

public sector employees not protected. Can you talk a little bit 

about that? 

Dr. MICHAELS. Yes. The way the OSHA law is written is if a 

state has federal jurisdiction as Wisconsin has or Missouri has or 

Florida has, the state and local workers have no coverage. Fortunately, public sector workers in Michigan do have coverage because 

there is a state OSHA plan, but in the other states, unless the 

state decides to have an OSHA plan themselves, those workers 

have no coverage. So we are pleased that Maine, for example, just 


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signed on, and Illinois and New York and New Jersey and Connecticut have them, but most of the states where we have jurisdiction, those public sector workers do not have the right to a safe 

workplace. When one of them is killed, there is no investigation. 

Nothing happens. 

Mr. POCAN. And some large employers, if they have operations 

in multiple states at some of the facilities in one of those 29 federal 

OSHA states and at some of the 21 state OSHA state plans, when 

considering whether a violation is repeated, does OSHA have the 

authority to consider the history of an employer’s violations from 

a state plan? 

Dr. MICHAELS. We cannot. And that is a big issue for companies 

which are in multiple places. We think it is very important to look 

at the history, and if an employer violates the law in one part of 

the country, they should not be allowed to violate without major 

penalty somewhere else, but that is unfortunately the way the law 

is written. 

Mr. POCAN. I see the yellow light but the time is—oh, I see I 

have a minute left. Okay. So let me go to really quickly on OSHA 

updating new safety and health standards. I know this says 10 to 

20 years in order to do that. Can you just address that issue? 

Dr. MICHAELS. The requirements for OSHA to issue a new standard are very complicated. We put a tremendous amount of work 

into our standards. We have extensive public input. In fact, for our 

silica standard, we took public input for a year. But because of the 

requirements for a complicated standard, it easily could take 10 

years. The GAO estimated eight years and that is an underestimate. So it takes us a long time to make those changes. So most 

of our standards are really dramatically out of date and workers 

are paying the price. 

Mr. POCAN. Thank you. And I yield back because I have 10 seconds. 

Chairman WALBERG. I thank the gentleman. And now I recognize 

the Chairman of the Full Education and the Workforce Committee, 

Mr. Kline. 

Mr. KLINE. Thank you, Mr. Chairman. Thank you, Dr. Michaels, 

for being here and for your testimony. I know that Chairman 

Walberg has a working list of issues he would like to address, so 

I yield my time to him. 

Chairman WALBERG. Thank you, Mr. Chairman. I accept that 

yield. I do have a number of questions, and I know right now we 

are on borrowed time, and I appreciate the borrowed time we are 

on. 

Dr. MICHAELS. I will speak quickly. 

Chairman WALBERG. Representative Pocan, in your response to 

his question, brought up a question that I would like to address 

with you. OSHA is looking at the California, Oregon, and Washington State plans with respect to roofing and residential construction projects. BLS data suggests states governed by the federal 

OSHA plan with similar sizes have a higher incident rate than 

these three states—California, Oregon, and Washington. Why does 

OSHA think the federal standard requirement is more protective 

than these three states? 


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Dr. MICHAELS. That is a great question. There are lots of reasons 

for a fatality rate or even a fall rate. Compliance with a standard 

is really in some ways the key thing, and there are lots of areas 

where California, Washington, and Oregon have lower injury rates 

and lower fatality rates than the rest of the country. The standard 

is just a piece of that. When we look though at fatalities that have 

occurred that have been in violation of a standard, we see lots of 

them and we know they could have been prevented if our standard 

had been stronger. And that is why we actually changed the enforcement policy for residential construction a few years ago because people were dying because they were not following the new 

standard because we were not enforcing it. So we can see that our 

standard will have an effect in those places where it is applied. 

And I have no doubt that any state that strengthens their standard, they will actually reduce fatalities and falls as well. 

Chairman WALBERG. What criteria are you using to determine if 

the state plans are at least as effective as the federal rules? 

Dr. MICHAELS. That is certainly something that we have been 

working on. In fact, we are probably the first administration ever 

to develop metrics to say this is how to measure a state plan in 

comparison with the federal government. The law has been around 

for 44 years, but for the first 40, OSHA never said, ‘‘Do we have 

a rigorous way to actually measure the concept at least as effective?’’ So we have implemented that a year ago. We now are collecting data from the state plans, and I think we are doing very 

well. 

Chairman WALBERG. So it is still in progress? 

Dr. MICHAELS. Yes. 

Chairman WALBERG. Blacklisting. Last year the administration 

issued the Fair Pay and Safe Workplaces Executive Order, otherwise known as the Blacklisting Executive Order—I think that is an 

industry term—in an attempt to ensure labor law compliance by 

federal contractors. Earlier this year, OSHA issued a memorandum 

directing compliance safety and health officers to collect additional 

data during inspections regarding employers’ federal contractor status. The question I would like to ask you, do you think knowledge 

of an employer’s contract work is relevant to an OSHA inspection? 

Dr. MICHAELS. Well, you know, we have learned a lot in the last 

year since that has come out and I think we have had a very successful experience. Our interest is not ‘‘blacklisting’’ or barring an 

employer from federal contracts; we want to use any leverage we 

can to make sure workers are protected. And I have heard from 

some of our area offices in states where they do a lot of defense 

contracting, defense contractors have said, ‘‘Well, you know, we are 

a little concerned about this. Tell us what we need to do to make 

sure we do not get on this list.’’ And we are happy to work with 

them. Our aim is not to bar any employer from being a federal contractor but to work with them saying, ‘‘Look, we would like you to 

continue to be a federal contractor. Let us make sure you are in 

compliance with our law.’’ 

Chairman WALBERG. Well, it is one thing for the contractor or 

the contractor wanna-be but I think the concern is it is so easy for 

them to get caught up without even knowing the question to ask 


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and all of a sudden being on a list that could impact contract negotiations or even getting the contract. 

Dr. MICHAELS. My understanding is that comments have been received and they are still working out what the procedures are, but 

we are very much committed to setting up a system where we can 

work with employers to make sure that they are in compliance 

rather than being debarred. And that is our commitment. That is 

what we want to do. 

Chairman WALBERG. Let me ask you. Do the three guidance documents carry the force of law? This probably gets to the nub of our 

concern. 

Dr. MICHAELS. Yeah. Standards carry the force of law, but the 

way we interpret them and enforce them comes from those documents and other sorts of documents. So we will use those documents in issuing citations, for example, because it tells our inspectors what to do. 

Chairman WALBERG. But does it tell our employers fully what to 

do and what is expected, especially since they are guidance documents as opposed to rules or laws themselves? 

Dr. MICHAELS. Rules always need interpretation. We issue, we 

get requests from employers on a weekly basis to interpret our 

rules. In fact, we issue probably 100 letters of interpretation a year 

when an employer says, ‘‘Well, what does this really mean? Or 

what is the definition of this?’’ Essentially, this tells employers, 

‘‘Yes, this is the definition.’’ So it tells, for example, that employers 

who thought that they were exempt under the retail exemption 

now are not exempt and therefore, you know, they always should 

have been following the law; we just would not enforce it. Now, actually, they know we could make an inspection. 

Chairman WALBERG. Okay. Well, my time is expired for the second time. And now I recognize the new member of our Committee, 

the gentlelady from Missouri, Mrs. Hartzler. 

Mrs. HARTZLER. Thank you, Mr. Chairman. I appreciate you letting me sit in here today and participate in this very important 

hearing. And I certainly appreciate Dr. Michaels’ leadership you 

provide to keeping our workers safe across the country. 

But as you do the enforcement, I think it needs to be coupled 

with common sense. And I was just wondering your opinion about 

some citations that I have heard about. So do you think that a company should be fined thousands of dollars because the emergency 

eyewash station, the water was too cold? 

Dr. MICHAELS. You know, I would have to look at the specifics. 

Obviously, that does seem questionable, but there are lots of issues 

in any one inspection, and the facts drive that decision. And so we 

would have to—I would be happy to look at that. 

Mrs. HARTZLER. How about being fined thousands of dollars because you did not have a yellow line painted 10 feet from the edge 

of a flat roof? 

Dr. MICHAELS. Again, the same thing. But, you know, we have 

rules about protecting workers up on roofs, and we have too many 

fatalities, so we expect employers to follow that. If that were the 

only reason they got fined, we would have to look at it very carefully. 


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Mrs. HARTZLER. Or how about an extension cord that is in the 

wrong place? 

Dr. MICHAELS. Well, if the extension cord is frayed and someone 

could be tripping over it, we would have to—again, it is fact specific 

but I understand your concerns. 

Mrs. HARTZLER. Yeah, my concerns are, I was wondering, you 

said you had a field manual. So how much discretion is given to 

OSHA employees when enforcing the regulations. If they find 

something are they able to say, ‘‘Hey, why do you not unplug it and 

move it?’’ Do they have that authority? Are they supposed to just 

slap them with a fine of 6,000 bucks right there? 

Dr. MICHAELS. No. The discretion actually is with the area director. The inspector is supposed to report what they see, and then 

the employer is supposed to meet with the area director and talk 

about what are the implications of this? Have they in good faith 

tried to eliminate the problems? Things like that. And the area director has a great deal of discretion around the fines. 

Mrs. HARTZLER. So they have the discretion to totally eliminate 

it? 

Dr. MICHAELS. No. Here is the reason. If we had a policy where 

we said the first time we see a problem there is no fine, then everybody would say, ‘‘Okay, we will not do anything until after we are 

caught once.’’ We cannot allow that. But we think we have a tremendous amount of discretion. 

The other thing we tell small employers is, ‘‘Look, we have a free 

consultation service. Once you get into that service, you are exempt 

from inspections while you are using that service,’’ and that is 

what we want employers to do. 

Mrs. HARTZLER. And I do commend you for that service, but I 

think it does not make sense to go ahead and fine—in my case, I 

mean, the stories that I have heard, it is almost like extortion. 

Small businesses are told, ‘‘Okay, you are going to be fined for a 

nonserious violation.’’ That is what we are talking about, $6,000. 

‘‘But if you agree not to appeal it, if you pay today, it is only 

$2,000.’’ How is that different from extortion? 

Dr. MICHAELS. Well, you cannot be fined $6,000 for a nonserious 

violation. We have a very clear step system of penalties and the 

maximum penalty for a nonserious violation for the first time is 

quite a bit lower than that. 

Mrs. HARTZLER. Well, still, thousands of dollars. If you are a 

family-owned business, that can have huge implications. 

I guess another question, you talked about your whistleblowers. 

How many inspections are a result of the employee who has been 

fired? Do you keep track of that? 

Dr. MICHAELS. I do not think we do. We keep track of health and 

safety inspections that come from complaints, and then we have a 

separate database when a worker has alleged that they have been 

retaliated against. And we have to match the two, you know, if we 

get both sets of complaints. But I do not know the answer to that. 

Mrs. HARTZLER. I would encourage you to keep track of that because while there may be certainly legitimate cases, and we want 

to protect the worker in those cases, but then other times, would 

you concede that sometimes maybe retaliation does occur? Somebody got fired because of incompetence and something else and 


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then they are going to get back at them. We will call OSHA and 

boy, they will come in and get them. 

Dr. MICHAELS. When we investigate allegations of retaliation, we 

often find that the retaliation that is being alleged did not occur 

and the retaliation or the firing occurred for other reasons. We do 

an independent investigation of those, and that is a common finding. On the other hand, we also find that workers have complained 

about safety and health reasons and then they are fired. And so we 

have to take the allegation very seriously, but I think we do a good 

job parsing that out. 

Mrs. HARTZLER. Sure. Well, I just disagree with you, I guess, 

saying that you think that just doing away with a fine for something that is nonserious, that the company would not, you know, 

respond. I think you would have served your purpose in raising an 

awareness of a danger, but if it is something that could be fixed 

easily, the government should work with businesses, especially 

family-owned businesses instead of treating them like criminals 

and coming in with a clipboard and ‘‘we gotcha’’ type mentality. So 

I think OSHA and all government, we work for the people, and 

OSHA should have that attitude when they confront the businesses. 

Dr. MICHAELS. And we do. You know, we have a category of de 

minimis violations, ones where we issue no fine. But if someone 

could be hurt, we feel that there is some penalty that should be associated. It could be less than $100, but there has to be something 

associated with that. But again, we stress for these family-owned 

firms, we can help you for free. Let us do that before we send an 

inspector and before a worker gets hurt. 

Mrs. HARTZLER. Sure. Thank you, Mr. Chairman. I yield back. 

Chairman WALBERG. I thank the gentlelady. 

I now recognize the gentlelady from New York, Ms. Stefanik. 

Ms. STEFANIK. Thank you. And I yield my time to Mr. Walberg. 

Chairman WALBERG. I love this chairmanship. Great members. 

Thank you. 

The injury and illness hospitalization regulation went into effect 

as I understand it January 1, 2015. When does the agency expect 

the online reporting component of the injury and illness regulation 

to be available to employers? 

Dr. MICHAELS. I wish I could say. We are having some IT issues 

and it will not be available in the next few weeks I do not believe, 

but we are working hard on getting up there. 

Chairman WALBERG. As long as the IT issues are not emails. 

Dr. MICHAELS. That is correct. They are not. 

Chairman WALBERG. Okay. Well, we hope they come out as soon 

as possible. I know industry is waiting. 

Where in the final rule does OSHA explain how the agency 

would respond to the increased reports submitted under the injury 

and illness regulations? 

Dr. MICHAELS. Well, we do not explain in the final rule but I 

have explained it publicly many times and I would be happy to tell 

you what my approach to this is, which I think is one which most 

employers will welcome. What I tell our staff, our inspectors, is 

that if you get a report of a worker being injured, of a hospitalization or an amputation, you do not have to inspect. Obviously, fataliVerDate Sep 11 2014 01:55 Sep 17, 2016 Jkt 096821 PO 00000 Frm 00036 Fmt 6633 Sfmt 6602 E:\HR\OC\A821.XXX A821

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ties, we absolutely have to inspect, and certain really serious injuries we do as well. But there is an opportunity cost. If we inspect 

this one workplace, then we cannot inspect the other workplace because we can only do the same number of inspections. So what we 

would like to do is use these notifications as teachable moments 

where if we can work with the employer on the telephone and get 

them into the consultation system and get them to respond to us 

and do an incident investigation where they understand the root 

causes of the injury and solve the problem themselves. We do not 

have to go out there, and therefore, there is no inspection and there 

is no fine. Right now, we are inspecting less than 40 percent of the 

reports, and I would like to drive that down even further because 

we think this can have an impact on workplaces without us actually ever going out to visit them. And that is particularly important 

in those places where our inspectors have to travel great distances 

to get to the workplaces. So I think we are making some progress. 

We have gotten reports where we have not inspected, but employers have reported to us that they have set up whole new systems 

as a result of this and we are pleased. 

Chairman WALBERG. Did the August 2014 Injury and Illness 

Regulatory Proposal undergo OMB review? 

Dr. MICHAELS. It will. 

Chairman WALBERG. It has not yet? 

Dr. MICHAELS. Which one is this called? 

Chairman WALBERG. This is the Injury and Illness Regulatory 

Proposal, August 2014. 

Dr. MICHAELS. I think the one you are referring to—— 

Chairman WALBERG. For under 250 employees. 

Dr. MICHAELS. Yeah. That one will undergo OMB review. 

Chairman WALBERG. But it has not yet? 

Dr. MICHAELS. It has just been sent to OMB. We expect it will 

undergo it in the near future. 

Chairman WALBERG. Okay. Let me move over to online training. 

Coming off of this desire to have workplaces with you on that and 

reduce the need for inspection if they submit to doing the right 

thing. OSHA’s online outreach training program is the most broadly utilized online workplace safety training in the country. Since 

2001, these courses have been provided by OSHA authorized entities. In 2008, OSHA established rigorous guidelines for the ongoing 

approval and regulation of these programs. The question is how is 

it that continued use of the 2008 guidelines is not the most practical way forward? 

Dr. MICHAELS. I think what you are referring to is our move towards a new system where we select the providers. The reason for 

that is we had some significant quality issues with some of the providers, and under our old system—— 

Chairman WALBERG. You said quality issues? 

Dr. MICHAELS. Yes. We would get complaints from people who 

had signed up. The systems were not working. The quality of the 

online teaching really was not very good. And overseeing that quality was important because people would get a card that said they 

were an OSHA certified 10-hour or 30-hour participant. And so we 

have moved toward a system where we really can have better qualVerDate Sep 11 2014 01:55 Sep 17, 2016 Jkt 096821 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 E:\HR\OC\A821.XXX A821

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ity control, and we have gone through some real bumps on the 

road, and so we have to—— 

Chairman WALBERG. Talk to us a little bit more about that. With 

these failed procurements that you have had—I think we would 

call it that. 

Dr. MICHAELS. Yes. 

Chairman WALBERG. How are you going to address that? 

Dr. MICHAELS. Well, I believe, and I am not as up on this as others in the agency are, you know, essentially, most recently there 

has been a court decision that said that our description of what we 

wanted was fine except we had said that we would have access, essentially free access, copyright access to the materials developed by 

these contractors, by the people providing this online service. Everything else we asked for was fine. That, though, requires us to 

re-offer, to send out the offering again to get bids again. The rest 

does not have to change, but in the next procurement here, because 

it was a failed procurement, the next one has to say that we would 

not have the ability to essentially have free access and use to the 

educational materials developed by the contractor. 

So we will re-offer it, and then we will then go through the same 

process where applicants have to submit applications, and we will 

choose the applicants to fit each category and move forward. 

Chairman WALBERG. Okay. Well, I wish you well on that because, again, it is a popular approach when it works. 

My time is expired. 

While we await the Ranking Member—I am glad she has arrived 

and everything is okay. I would like to recognize Representative 

Mike Rogers, who is not a subcommittee member but has some 

great interest in OSHA. 

Mr. Rogers, do you have any questions you would like—or comments you would like to make? 

Mr. ROGERS. I would be happy to if I got a chance. 

Chairman WALBERG. We recognize you. 

Mr. ROGERS. Well, thank you. 

One of my concerns has been when OSHA comes in and does a 

plant inspection, just a regular annual or semi-annual plant inspection, there have been no accidents or injuries, and during an inspection they find that some machine or part of the plant is out of 

compliance with your rules or regulations for safety. They are told 

to bring it back into compliance and you will come back in to inspect it and confirm that has happened. But then, my experience, 

the company is not told exactly what they have to do to come back 

into compliance. My plants have told me that they are told, ‘‘Get 

a consultant. That is not my job to tell you how to fix it. I can just 

tell you, you are out of compliance.’’ They then hire a consultant, 

bring them in, fix the problem, call OSHA to come back in to verify 

that it has been corrected. OSHA says, ‘‘It has been corrected. Here 

is your $50,000 fine.’’ Why in the world would you not tell somebody what they have to do to come back into compliance? And then 

if nobody has been injured, they fix it within a reasonable amount 

of time, why would you fine them? And that has happened in two 

different companies in my district. 

Dr. MICHAELS. This in some ways is the same question that Representative Hartzler asked. There are a couple different issues. 


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First, one thing I discussed earlier, what we really would like small 

employers to do is to bring in a free consultant, which we will help 

them get. We fund the free consultants, but they are separate from 

OSHA and they are independent. When an employer asks for a free 

consultant, we do not inspect during that period, and they will 

make sure that they are in compliance. We tend not to tell, or we 

do not tell employers exactly what they must do to fix it because 

we actually hear from employers all the time, ‘‘Just, you know, do 

not be prescriptive. Your standards are there. Let us figure out 

how to get there.’’ And, you know, there are some standards which 

are very clear what they have to—if a lockout tag, they have to 

have the lock. It has to be tagged out. It is all pretty straightforward. But there are other ones that say you have to have a system to address the problem, and they could come up with that system in ways that will address the problem. We have guidance that 

will say, ‘‘If you do these things it will be effective.’’ But we like 

to give employers a lot of leeway. 

What we do not do though is give them back the money or say 

there is no fine because if we say the first time there is a problem 

and you only fix it after we found it, what is the incentive for employers to abate hazards before we get there? And that is really the 

issue. If every employer thought, ‘‘Well, I am not going to get fined 

until OSHA gets here the second time,’’ who is going to fix things? 

Mr. ROGERS. How are they going to know they are out of compliance? There is one particular plant that just stands out as egregious. The machine that OSHA came in and found to be out of compliance they had had for 30 years. Nobody had ever been injured 

on it. They did not know it was out of compliance. They had to 

paint a stripe on the floor and that brought them back into compliance. A yellow stripe that came out three feet, and they got a 

$50,000 fine. A $50,000 fine is obscene. 

Dr. MICHAELS. A $50,000 fine for no yellow line? 

Mr. ROGERS. Correct. 

Dr. MICHAELS. Again, I would be surprised. I mean, usually—— 

Mr. ROGERS. I was surprised, too. That is why I am here. 

Dr. MICHAELS. I would love to see—if you do not mind sharing 

that with me, we will take a look at it. 

Mr. ROGERS. I would be happy to. I just find that obscene. And 

it is different if somebody had been injured and you would be right 

with that logic, but if somebody is not injured and you just find it 

during an inspection, give them a reasonable amount of time to fix 

it. If they fix it, free pass. I just do not understand why you feel 

like you have got to penalize somebody for trying to do right. 

Dr. MICHAELS. Well, you know, it is interesting. We actually do 

not penalize employers because a worker has been hurt or killed 

or injured. We only penalize them for the violation. In fact, we 

have had fatalities where there is no citation issued because no violation occurred. On the other hand, if the violation could have led 

to a worker being injured, whether or not they were injured, we 

feel we should issue the citation because it is a warning to that employer and to other employers that they cannot let those violations 

occur because maybe a worker has not been hurt by that machine, 

but another machine like it probably has hurt many workers, and 

we know that. 


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Mr. ROGERS. And if you had any information that the employer 

had knowledge they were out of compliance, you should fine them. 

But if you have no knowledge that they had any reason to believe 

they were out of compliance, you should not fine them. And while 

I am not on this Committee, I intend to do everything in my power 

to fix it that way before I leave Congress. 

Thank you. I yield back. 

Chairman WALBERG. I thank the gentleman. 

And now I recognize the Ranking Member, Ms. Wilson, for her 

opening statement and questions. It is your floor. 

Ms. WILSON. One question. I think I will have time. 

Thank you so much, Chairman Walberg, for allowing me to make 

this opening statement, and I would like to welcome Dr. Michaels 

and thank him for testifying this morning. It has been four years 

since you last appeared before this Committee, so I thank you for 

coming back again and giving us the progress at the Occupational 

Safety and Health Administration. 

It is well known that your agency faces several obstacles to effectively enforce the rules that protect and promote worker safety. 

One of these major obstacles is budget constraints. OSHA only has 

enough inspectors to inspect each workplace in its jurisdiction once 

every 140 years. 

In my home state of Florida, OSHA has only enough inspectors 

to inspect each jobsite once every 256 years. I find it inexcusable 

that given these current conditions, a House budget bill would cut 

$32 million from OSHA’s already sparse enforcement budget. This 

14 percent cut would leave OSHA even less able to enforce standards that keep workers safe. Given its limited resources, OSHA 

must be able to use additional methods to monitor the health and 

safety conditions of our workplace. 

As a member of the Subcommittee on Workforce Protections, we 

are charged with examining the weaknesses in the OSH Act and 

proposing reforms to strengthen OSHA’s ability to protect American workers. Firstly, we must ensure that the eight million state 

and local government workers in 24 states with no OSHA protections gain coverage. These workers, including the 894,000 workers 

in Florida, deserve OSHA protections, especially where the states 

are not stepping up to protect workers. 

The truth is, most employers are deeply committed to worker 

safety, but for those few employers who callously disregard the 

well-being of their workers, we must ensure that OSHA has the 

tools to act. This means raising OSHA’s civil monetary policies 

which have not been adjusted for inflation since 1990. Penalties 

must serve as a strong deterrent, sending a clear message that if 

you do not value your workers you will surely pay. 

In preparing for the hearing, I was deeply saddened to hear Carlos Centeno’s story. Carlos was a temporary worker at a Chicagoarea factory. He was asked to clean a 500-gallon chemical tank 

with no safety gear other than latex gloves and rubber boots. An 

open hatch erupted, showering Carlos with a 185 degree solution 

of water and citric acid, burning over 80 percent of his body. Even 

though Carlos’s skin was peeling, his employer refused to call 911. 

It took more than an hour and 40 minutes for Carlos to arrive at 


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a burn unit. Sadly, he died three weeks later. As Carlos’s son put 

it, the employer failed to think of him as a human being. 

When we hear egregious stories like this, it is shocking to know 

that for employers who willfully violate a health and safety requirement that causes a worker’s death or fail to act to keep him 

from dying, the maximum criminal sanction under OSH Act is only 

a misdemeanor. Since 1970, there have been 390,000 workplace fatalities but only 88 prosecutions under the OSH Act. Mr. Chairman, reforms to address these and other weaknesses 

are included in the Protecting America’s Workers Act, H.R. 2090. I 

would welcome the opportunity to work with you on a bipartisan 

basis to identify the highest priorities and begin work to strengthen and improve the OSH Act. 

I want to thank Dr. Michaels for being here today, and I look forward to hearing how we, as the Subcommittee on Workforce Protections, can help OSHA in its efforts to promote and protect the 

safe and healthy workplaces all Americans deserve. 

[The statement of Ms. Wilson follows:] 


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Ms. WILSON. And I want to ask this one little question. What is 

the impact of this lack of coverage for this group of workers? What 

would you recommend Congress do to address this problem of incomplete coverage? I spoke about Carlos Centeno’s story and how 

his employer refused to call 911. Does OSHA support strengthening 

criminal sanctions in the OSH Act? 

Dr. MICHAELS. We do. We know that the threat of criminal sanctions changes behavior, and in so many other areas we see the effectiveness of this. I mean, right now there is a big discussion in 

the food safety area. The owner of a company that sold contaminated peanuts that resulted in dozens of deaths and hundreds of 

people being made sick by the peanuts just has gotten I think 28 

years in jail. And that sends a message out to other food manufacturers that they cannot get away with this. But there is no criminal penalty of any importance associated with the OSH Act. If a 

worker is killed and it is associated with a willful violation—in 

other words, the employer knew about this hazard and willfully left 

it there—the maximum penalty is a misdemeanor, six months, and 

it is aimed at the corporation. People do not go to jail for that. I 

think it would make a big difference if—and we are talking about 

the tiny number of employers who really treat their workers this 

way, but we need to send them a message because these workers— 

that is where workers are being killed. 

Ms. WILSON. Thank you. I yield back. I have to vote. 

Chairman WALBERG. I thank the gentlelady. We have votes coming, so we cannot belabor this. 

I want to say thank you, Dr. Michaels, for being here. Thank you 

for your work. I think this hearing, the value of this as we move 

forward and considering some of the things that are brought up 

today is to find a mechanism by which there can be a true partnership between business and industry and the government, specifically the regulator with OSHA. It is an important function. We 

hate hearing stories like that. We also hate hearing stories that 

were brought up by my colleague, Mr. Rogers, where maybe six 

months in jail would have been better than the $50,000 fine for 

painting a yellow strip. It just did not make sense. I think if we 

can promote the idea of that partnership that comes together with 

best practices from the industry and a working relationship from 

OSHA that says we are willing to listen to those and learn from 

those, in turn, that partnership might foster greater growth in our 

safety in the workplace. I do not think that any of us here at this 

dais want to stand in the way of the safety of the worker. And we 

do not want to stand in the way of the regulator that is working 

to the best interest, but we also want to be on the team with the 

employer who is not like that particular employer and is caring 

about their employees as well. 

Thanks again, and with no further questions before the Committee, it is adjourned. 

[Whereupon, at 1:56 p.m., the subcommittee was adjourned.] 

[Additional submissions by Chairman Walberg follow:] 


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[Additional submissions by Ms. Wilson follow:] 


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[Questions submitted for the record and their responses follow:] 


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Æ 


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