What Can We Do?

• Jurisdiction: United States,Federal
• Publication year: 2016
• Citation: Vol. 3 No. 3

What Can We Do?

Jonathan D. Karmel

WHAT CAN WE DO?^†

Jonathan D. Karmel^*

As a country we face a great challenge; the challenge to do everything possible to make Americans safe at their workplaces. But, what is the measure of that challenge? How can we know when we have done everything possible? While there is no doubt that reported deaths and injuries have declined over the years, is there a number that is acceptable as the cost of doing business? At what point can we say that we have done enough? Is one preventable death acceptable? Are more rules and regulations going to move the statistical needle? Or, without meaningful deterrence and enforcement, are more rules and regulations just thousands of words on the pages of the Federal Register? Does protecting American workers extend beyond their physical safety at a work site, to caring for the workers, and their families, when they become injured, disabled, or die?

Before addressing these questions, it is important to consider the arguments of those who oppose robust and effective health and safety laws, and a larger role for government oversight and leadership. To begin with, there is a popular, if not prevailing, view in America that throws up its hands and reduces the complexity of worker safety to the simple notion that life is inherently and randomly dangerous, and we cannot be expected to protect every worker, nor should we. Accidents happen. Trains derail. Cars crash. Workers get injured, and die at their jobs.

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This fatalism has been widely appropriated by politicians and policy makers as the go-to rebuttal to practically any social problem that could be fixed or ameliorated by the hand of government. This do-nothing attitude is most often expressed in the gun debate; any type of gun control regulation will not stop all killings, so why increase regulation at all? It is the marching beat of the big government that destroys our freedoms. Workers, and worker safety, have not escaped the broad brush of this public policy nihilism. But it is an inherently unsound and immoral argument, especially when it comes to worker health and safety.

Two prominent conservative think tanks, the Cato Institute ("Cato") and the Mercatus Center at George Mason University ("Mercatus"), are archetypical of those who espouse and promote this "anti-government organizing" philosophy and, in turn lobby politicians to codify its principles.¹ Cato was founded by the Charles Koch Foundation.² David Koch is a member of Cato's Board of Directors.³ When it comes to worker safety, Cato has argued that free markets "have done much better than governments at providing safety" for workers.⁴ Founded in 1980, Mercatus labels itself as a university-based research center for "market-oriented ideas."⁵ Mercatus' Board of Director, Richard Fink, is also an Executive Vice President of Koch Industries, Inc., and a member of its Board of Directors.⁶ He founded Mercatus in 1978, which was briefly housed at Rutgers University before relocating to George Mason in 1980.⁷ Charles Koch sits on Mercatus' Board of Directors.⁸ Since 1985, Mercatus and George Mason have received more than $30 million from Koch foundations.⁹

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Cato publishes a quarterly journal, Regulation, which boasts that it examines nearly every market, "and nearly every government regulation."¹⁰ Its contributors and editorial board include the most prominent conservative thinkers and academicians in America, including the late Supreme Court Justice Antonin Scalia.¹¹ In 1995, Regulation published an article with the make-no-mistake-about- it title "Abolishing OSHA".¹² The authors, Thomas J. Kniesner and John D. Leeth, argue that "OSHA can never be expected to be effective in promoting worker safety; that an expanded OSHA will cost jobs as well as taxpayer dollars; and that other means currently keep workplace deaths and injuries low and can reduce them even more."¹³ This conclusion neatly fits into Cato's anti-government and anti-regulatory construct, but it is a badly flawed.

One of the most inconvenient truths standing in the way of this argument is the indisputable fact that since OSHA's inception in 1970, workplace deaths have decreased more than 66% as of 2013.¹⁴ During this same period, occupational injuries and illnesses declined by 67%.¹⁵ All of this occurred at a time when the United States workforce nearly doubled in size.¹⁶ Fatalities went from 38 workers per day in 1970 to 12 per day in 2013.¹⁷ As of 2014, injuries and illness are down to 3.3 per 100 workers from 11 per 100 in 1970.¹⁸ How does Leeth address these facts? He argues that the decline in workplace injuries has more to do with temporal coincidence than anything attributable to OSHA.¹⁹ Faced with more than 40 years of data, Leeth asserts in a 2013 Mercatus article that OSHA is "not the major cause" of the decline. However, he did begrudgingly admit that OSHA has had a "modest" role in improving worker safety.²⁰

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This would be a major concession, albeit belated, from the author of Abolishing OSHA, except that the "modest" role might have been even greater if OSHA had been given more resources to protect workers, and not less. In a revealing moment of tone deafness, typical of those that spin facts to fit their belief systems without considering an alternative reality, Leeth writes that OSHA's inspection efforts have only reduced injuries by 4%.²¹ Stop and take a moment to think about that statement made in support of the ineffectiveness of OSHA. Then, consider the fact that OSHA is armed with very few inspectors; there are only about "2,200 inspectors responsible for the health and safety of 130 million workers, employed at more than 8 million worksites around the nation—which translates to around one compliance officer for every 59,000 workers."²² Given this miniscule enforcement resource, it is a wonder that inspections have reduced injuries by even as little as 4%.²³ Rather than argue for more inspections, the do-nothing "anti-governmenters" want fewer inspections, even as the data indisputably shows that employers who have been inspected have fewer safety problems later on. A study of more than 500,000 OSHA inspections found that total violations decreased by 28-48% from the initial OSHA inspection to the second.²⁴

Even for Cato and Mercatus acolytes, it is tough to continue to insist that OSHA "can never be expected to be effective in promoting worker safety" when faced with hard facts that assert otherwise.²⁵ Thus, the updated view offered by Cato, Mercatus and others, is that "OSHA can best complement the other pillars of the U.S. policy system by providing information to workers about possible hazards, particularly health-related hazards, and by gearing inspections toward worksites where dangers are hard to monitor and firms employing less mobile and less knowledgeable workers."²⁶ This hard won acknowledgement is long overdue, but is tempered by the persistent denigration of OSHA's funding and rule making authority. Instead, it is argued that OSHA is merely a complement to the other pillars of worker safety policy.²⁷ It is important to note, at this point no worker safety advocates have

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ever argued that OSHA is the only pillar in worker safety policy. Rather, they assert that OSHA is part of a comprehensive occupational health and safety regime.²⁸ Nonetheless, let us examine a policy system that the other pillars of the market-oriented proponents claim will protect American workers.

A 2008 Cato policy report argues that "[f]ree markets have done much better than government at providing [worker] safety, fairness, economic security, and environmental sustainability."²⁹ Simply stated, there is nothing that this single source solution could not fix if the government would just get out of its way. But in regard to workplace safety, Henderson writes, "[i]n short, there is and has been a 'market for safety. "'³⁰ Leeth similarly argues that the labor market is one of the four pillars in the U.S. worker safety policy system.³¹ "The positive relationship between wages and risk means firms with better safety records are rewarded in the market by being able to pay less to attract equally qualified workers than firms with worse safety records."³² Let us see if this statement holds true.

The argument is that workers demand job safety "by the wage premium we insist on to take a given risk." As this so-called risk-wage premium rose, employers found it cheaper to avoid the risk premium by increasing safety in the workplace.³³ One of the many fallacies of this argument is the assumption that workers are aware of the risks in their workplace, and armed with this information, can make an informed, rational decision about whether to work there and at what price. This is an enormous assumption that, in the real world, simply does not exist. We know that employers and employees underreport in substantial numbers.³⁴ Accordingly, true and accurate information is simply unavailable.³⁵ Moreover, in almost all instances, workers simply do not possess the information to demand a wage premium based on an assessed risk, accurate

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or otherwise.³⁶ Even if an employer's real safety record is known to a worker when completing a job application while sitting in the human resource office, workers are not insurance companies—they are unable to underwrite their expected wage rate based on the safety risk of their prospective employer. They simply are not armed with the ability to handicap their job risk, nor do they possess the bargaining power to use the information as leverage against a prospective employer.³⁷ As will be discussed, this inequality of bargaining power is even greater in the context of non-union workers.

Regardless, by the very nature of a particular job or industry some risks are patently obvious. Working in an underground coal mine, one thousand feet inside a mountain, poses an obvious risk for which a worker could demand a...