The issues around enforcement and incentives involve several balancing acts, and there is certainly room for healthy disagreement about the best approach to achieve compliance with the rules and to protect Oregon workers from hazards that could cause serious injury, illness or death. As the administrator of Oregon OSHA since the fall of 2005, I share Mr. Delmazzo's outrage at the number of workers who have died in Oregon workplaces from causes that could have been eliminated.

What troubles me about his post, however, is that he states very clearly that Oregon has the lowest average penalties in the country for a first time serious violation (which is true, although perhaps not as telling as he assumes). He then uses California as a comparison, without noting that California reflects the highest average in the country (in fact, California's average penalty is about 3 times higher than the second highest state, Kentucky).

He also criticizes Oregon for inspection frequency, but omits any comparison to other states, and actually makes it sound (without actually saying it) as though Oregon is also relatively unlikely to inspect a workplace compared to other states.

I assume he knows that the "24 years" figure quoted above gives Oregon the highest enforcement penetration in the nation, and that our enforcement presence compares quite favorably with California, where it would take 133 years for the state to inspect all worksites (still considerably better than last place Florida, which has actually improved to 228 years in the most recent report). None of those state figures suggest a massive enforcement presence, of course, but it's worthwhile to consider Oregon in context.

Oregon has historically relied upon relatively modest penalties (on average) and a relatively high enforcement penetration. Agree or disagree with that approach if you choose -- but it's important to share the whole story, rather than just to pass on the information that supports your point of view.

And yes, I admit that I'm an interested party. But my primary interest (and that of the rest of the staff at Oregon OSHA) is in identifying the best ways to secure employer compliance and a safe and healthful workplace. And whatever the right balance is, I'm certain that it is important to take into account both the potential penalties and the likelihood of inspection.

Michael Wood, CSP Administrator, Oregon OSHA

Michael,

While Oregon's inspection timeline is better than others in the latest report at least, it doesn't take away the fact that 24 years is a very long time.

Just because penalties in other state's are low doesn't justify Oregon's $292 for “substantial probability of death or serious physical harm to workers.” When it comes to a worker being forever harmed (or dead) even Californa's $5,102 is low.

Your justification is like saying because gas is as much as $5.80/gal. in Hawaii, we should be happy that it's $4.60 here.

Also, Oregon's rate of workplace fatalities per 100,000 workers was 4.8 in 2006 when the national average was 4. Total cases of workplace injuries and illnesses per 100 workers in Oregon was 5.3 when the national rate was 4.4. This doesn't bode well for Oregon workers. Pretty much all the statistics have worsened since the early 90's even though Oregon has lost many dangerous jobs (timber, etc,) and gained safe ones.

I'm the first to admit that Oregon OSHA needs more funding. Having 83 safety and health inspectors for a workforce of at least 237,617 is pretty sad.

Will you join me in pushing for legislation in 2009 that increases penalties?

As I said in my own comments, my concern was with what was left out, not with what was said. I am certainly concerned that there is a danger in complacency, and whatever the numbers are there is much work left to be done.

As far as fatality rates, I'm uneasy with year-to-year comparisons (and yes, I've been uneasy with them when they go the other way as well). I'm not sure what stats your comparing to the early 90s. I don't have a vested interest in those numbers since they predate my presence here, but long term trends I've seen since the early 90s are positive for Oregon, in both injuries and fatalities (at least within Oregon OSHA jurisdiction).

Your assumption that dangerous jobs have been replaced with safe ones may need closer consideration, by the way. While logging has gone down since the early 90s, it hasn't in recent years. And construction has increased almost two-fold.

With regard to increasing penalties, the statutory maximum for a first-time serious violation is $7000. If I were convinced that increasing them across the board would protect workers, I could take that action without legislative action. But I'm convinced that selective use of penalties for the most egregious behavior and the greatest risks (not necessarily the worst results) are the best way to protect workers. Have California's increased penalties of a few years ago resulted in safer workplaces? There isn't much data to support that contention.

I'd be happy to discuss this further with you in detail at any time. If you're interested in meeting, you can reach me via e-mail at [email protected] or via telephone at (503)974-7400.

I appreciate that we share the same commitment to preventing worker fatalities. I hope I'll see you in a few hours at the Worker Memorial Day ceremony in Portland.

Ernie, I don't devalue workers nor their safety, but the fines I've seen on construction sites have nothing to do with $292, an untied ladder - $2500, a worker outside a safety line on a roof - $2500. That number may come from averaging in appealed fines or dropped fines into a total number of instances but the reality is that an OSHA fine is no game to employers and insurance companies don't like it either (higher premiums).

Injuries and fatalities of any number are too many and some employers don't care enough, but that is not a rule.

According to the AFL-CIO’s “Death on the Job: The Toll of Neglect”, the national average of penalties for safety violations that created a “substantial probability of death or serious physical harm to workers in 2007 was $909, while Oregon penalties averaged $292. So, Oregon's not only the state with the lowest average fine, it's average is less than 1/3 the national average. Would this qualify us as the "Mississippi of Worker Safety"?

Chuck Butcher's post on fines against construction companies reminds me of the time I worked on adding a top floor to the downtown Portland Nordstrom's building. Sent over the roof edge to do demolition [at night and in the rain], I was told to put on a safety harness and throw the line back over the top so it would appear to any OSHA inspector who happened by that I was secured. Why? Tieing-off properly would take too much time.

The Oregon OSHA Administrator said: "The issues around enforcement and incentives involve several balancing acts..."

Unfortunately, this is a mindset I saw from Michael's predecessor. The statement implies that rock-bottom penalties are an incentive for employers to provide a safe workplace. Yet a penalty is only accessed - though sometimes one isn't - when an employer is in violation of safety laws.

I don't see any real-life logic in this policy. It seems to run counter to universal thinking that crime should bring some kind of punishment and punishment itself is a deterrent to illegal behavior.

I'm wondering: Does Oregon OSHA still give employers one or more day’s notice before a "surprise" inspection? For a decade, I’ve heard from workers who were told by employers to fix “known” safety hazards because OSHA was coming. Obviously, this reduces the number of problems found, therefore lowering employer noncompliance incidents and percentages.

Tom Civiletti's posting was right-on as usual.

Again, I would be happy to meet with you to talk about the issues. I'm not sure that exchanging comments on a blog -- while a valuable way to raise the issues -- is the best way to discuss the complex interrelationships. My understanding of the "balancing act" is in some respects different from my predecessors, but it is foolish to deny that there is a balancing act involved. And it is a mistake to suggest that only the penalty amount affects deterrence -- the frequency of inspections, in which Oregon leads the country, also matters.

Don't misunderstand me. I believe in punishments for violating the law, and I believe in effective use of penalties as an incentive for employer compliance (I don't use the word "crime" because in most cases these are not crimes, any more than a moving violation on our highways is a "crime" in a legal sense). But I just don't think it's as simple as saying "make the penalty higher and workplaces will be safer." I think it will work much more effectively to make some penalties higher, as I indicated in my first post.

And I am well aware that our system does not work as well as it should. I spent last evening speaking with families of workers who were killed on the job in Oregon, and I candidly acknowledged that the system -- and I -- had failed them. But I am suspicious of simply solutions.

Of course, there are problems with relying on "average" statistics. For example, in the case described by Mr. Civiletti, if that fact pattern was identified in an inspection, it SHOULD result in a willful violation with substantial penalties (up to $70,000 for a single violation). The $292 statistic involves serious violations that were not cited willful, however, so the average would not be changed (that's not to say that we frequently cite willful violations -- we have not used that tool often or effectively enough; that will be changing). not). Of course, the $292 statistic also disregards the size of employer, which certainly affects the deterrent value of the penalty (and states with substantially higher average penalties generally do not inspect nearly as many small employers as does Oregon OSHA).

And while violations that can cause the workers death are appropriately classified as "serious" and included in the average, it does not follow that all serious violations risk the worker's death. The $292 figure is not a reflection of those violations where Oregon OSHA determined that the worker's life is at risk, but also includes other serious harm (including temporary disability).

Still, it is undeniable that Oregon has low penalties compared to the rest of the country. But would we be better off if we were "average" in penalties? Would a $900 average penalty triple the deterrent effect? It's unlikely it's that simple. And, while I'm not certain of the best balance to strike between penalties and the likelihood of inspection, I AM certain that we would be worse off if we had average penalties and an average enforcement presence (tripling our penalties and reducing our inspections by about 75 percent). Because the perceived risk of inspection matters.

Finally, we do not give advance notice of inspections, nor was it ever agency policy to do so (it is a violation of the law, except in very limited circumstances). And I get complaints from employers about the fact that we don't -- but unpredictability is the essence of enforcement. We do, in some circumstances, respond to worker complaints by contacting the employer for more information. But even in those limited cases the employer does not actually know whether we will inspect, or when we will inspect, at least not from us.

Again, I would be happy to meet to talk about these issues.

From the same 2007 AFL-CIO study:

A state-by-state analysis of fatality investigations shows that penalties in cases involving worker deaths vary widely from state to state. In FY 2007 Delaware had the lowest average penalty for fatality investigations, with zero penalties assessed, followed by Alaska ($750) and Oregon ($793). Missouri had the highest average penalty ($106,348), followed by Oklahoma ($95,811) and Minnesota ($33,426).

[I]n cases involving worker fatalities ... for the state OSHA plans, the average penalty was $7,525 in FY 2007.

In cases of worker death, Oregon's penalties are also very low, about 1/10 of the national average. So, Mr. Wood's reminder that the $292 average penalty refers to more than just deadly situations does not make a particularly strong point.

Certainly, statistics do not capture every nuance of a complex situation, but their ubiquitous use in business, government, and academia suggests that statistics are the best information we usually have on complex matters.

correction: the AFL-CIO study, “Death on the Job: The Toll of Neglect”, is dated 2008, while the statistics are federal OSHA numbers for 2007.

The Oregon OSHA Administrator states:

"I AM certain that we would be worse off if we had average penalties and an average enforcement presence (tripling our penalties and reducing our inspections by about 75 percent)."

Are we to believe that increased penalties will reduce inspections radically worse than one every 24 years? It seems logical that more revenue to the state in penalties will increase the agency's budget so more inspectors can be hired and inspection time frames are therefore lowered.

How about legislation that increases the agency budget using the increase in penalties as a source?

Mr. Civiletti is correct that the Oregon average in fatality cases is also considerably lower than the national average. I find that statistic much more troubling than the average for all serious violations. And I am perfectly willing to acknowledge that we should use our penalty authority more effectively (and yes, that means higher penalties) in those cases where there is a significant risk that death will occur. That is exactly the sort of situation I referred to in my previous posts when I indicating that I more interested in focusing on targeted use of penalties than I am in increasing the average for all serious violations.

I don't, however, think the test of that strategy should be simply increasing the penalties when death occurs -- if we're actually going to prevent the deaths, we need to target significant penalties in those situations when the risk of death is significant, even if it doesn't actually happen.

This exchange is also a good illustration of my earlier suggestion that these are complicated issues to discuss in a blog format -- particularly if we want to discuss possible strategies rather than advocate for particular predetermined approaches. To make it clear, my offer of a meeting to talk about these issues is not limited to Mr. Delmazzo, but includes Mr. Civiletti and anyone else who is interested in taking a serious look at how to use the enforcement tools available to Oregon OSHA in the most effective manner possible.

As Mr. Delmazzo notes, increasing penalties would not somehow reduce the available staff, and I apologize if I appeared to be suggesting that it would (although I suppose that an increase in penalties would generate increased litigation, which would have a marginal effect on productivity, but it probably wouldn't be very significant).

The point I was making was that we may want to avoid suggesting that we should simply strive to be like other states. And that (as I have perhaps repeated too many times) I believe that both the size of the penalty and the frequency of inspection must be considered when evaluating the likely impact of any enforcement effort.

As far as generating revenue, I'm glad that our penalty dollars do not go into the same fund from which our appropriation is made, and I would hate to see that change. It hurts our perceived credibility if employers think that we view our purpose as generating revenue, rather than compliance (given our relatively low penalties, it might surprise you how often that accusation is made). And it's good to be able to say that Oregon OSHA gets no monetary benefit from the penalties we collect (they go into the Worker Benefit Fund, which funds certain workers compensation benefits, as well as Oregon OSHA training grants and the Oregon Workers Memorial Scholarships).

The Oregon OSHA Administrator states:

"I AM certain that we would be worse off if we had average penalties and an average enforcement presence (tripling our penalties and reducing our inspections by about 75 percent)."

Are we to believe that increased penalties will reduce inspections radically worse than one every 24 years? It seems logical that more revenue to the state in penalties will increase the agency's budget so more inspectors can be hired and inspection time frames are therefore lowered.

How about legislation that increases the agency budget using the increase in penalties as a source?

Oops! Sorry for the last "repeat" post. I saw it in the form as thought the first one hadn't posted.

Just one small note regarding the original article:

"Sadly, Oregon workplace fatalities climbed from 60 in 2004, to 65 in 2005, and to 87 in 2006, according to the U.S. Department of Labor. And some occupations are not counted."

This last sentence is an incorrect statement.

The fatality information used in the AFL-CIO report comes from the Federal Bureau of Labor Statistics' Census of Fatal Occupational Injuries (CFOI). Oregon CFOI collects data on all occupational fatalities that occur within the state of Oregon, regardless of occupation, industry, compensation or regulatory coverage. CFOI captures data on occupational fatalities that are often not covered by Oregon OSHA or by Oregon Workers' Compensation, such as self-employed workers, federal employees, suicides, inmates on work crews, volunteers, etc. etc. As such it is the most comprehensive census of fatal injuries in the state.

One category that CFOI does not include is occupational illnesses, even when they result in death. This is because of the time lag it takes to verify that an illness is truly work-related. This is an unfortunate artifact of our inability (as safety and health professionals as a whole) to collect this type of information effectively.

The report footnote on page 81 here states, "1 Bureau of Labor Statistics, rate per 100,000 workers. National fatality rate comes directly from BLS."

It also adds "*BLS state fatality rates for 2006 are not yet available. The AFL-CIO calculated 2006 state fatality rates using the numbers of deaths reported by BLS for 2006 and the preliminary employment status of the civilian noninstitutional population 2006 annual averages from the BLS Current Population Survey (CPS)."

Wikipedia says, "The Bureau of Labor Statistics (BLS), a unit of the United States Department of Labor, is the principal fact-finding agency for the U.S. government in the broad field of labor economics and statistics."

I believe my statement is therefore correct.

Hi Ernie,

Was that response directed towards me? I am unclear as to how that addresses my statement. Could you offer further clarification?

Your original post states that "some occupations are not counted" which is incorrect. All occupations and industries are included in the CFOI counts, including some that you might not original expect (e.g. inmate work crews).

BLS contracts with various state agencies to compile statistics for each state. In Oregon the Suvery of Occupational Injuries and Illnesses (SOII) and the Census of Fatality Occupational Injuries (CFOI) are both done through the Department of Consumer and Business Services. This is why I refered to it as "Oregon CFOI" although the data actually belongs to the Feds. :)

As the person who has tabulated CFOI statistics for Oregon for the past two years, I would be more than happy to answer any further questions you might have.