Sunday, December 18, 2016

Safety in the Workplace

In Florida, we have heard various lamentations regarding the elimination of Florida's division of safety. Some prognosticate that Florida work places cannot possibly be safe without such state government intervention. In a letter to the editor last spring, coincident with the 105th anniversary of New York's Triangle Shirt Waist fire, an attorney again raised the issue of workplace safety in Florida. 

Florida's workers' compensation law used to include safety provisions. See Section 440.56, Fla. Stat. (page 154 of the 1990 statute). But as last spring's letter writer pointed out, the law was amended in 2000 and the "safety" provisions removed. The writer lamented perceived effects of that repeal, concluding "it appears that Florida employees are no safer on their jobs today than were the employees of the Triangle Company on March 25, 1911." But are workplaces safe?

In a 2011 report, the National Council on Compensation Insurance concluded that the frequency of "lost time" claims decreased 56.4% over the 1991-2009 period. The Occupational Safety and Health Administration says that since 1972, "workplace deaths and reported occupational injuries have dropped by more than 60 percent." Data from the Center for Disease Control also suggests that frequency of workplace death and injury is markedly decreased today, compared to 1911. The Bureau of Labor Statistics has similarly published data that supports work place accidents are decreasing in frequency. All of the data found supports that workplace injuries are decreasing. 

Where is the data that supports that accidents or injuries in Florida are increasing since the State safety provisions were removed in 2000? Is there empirical data that supports the contention that Florida employees are "no safer . . . today" than employees in 1911? The studies cited above seem to contradict that conclusion, though they are national in scope. Is there contradictory data somewhere?

With no data cited in support of this conclusion ("no safer . . . than 1911), this interesting conclusion appears to rest solely on the elimination of the Florida safety provisions in 2000. The logic seems to be simply that without the state law provisions, Florida employees are not safe. But, where is the data that demonstrates increases in injury or accidents since 2000? Of course, between the creation of Florida workers' compensation in 1935 and these thoughts on safety last spring, the world underwent a few changes. 

Most notably among these is the infirmity (it is too early to say it is dead, but it is not well) of America's manufacturing economy. As people moved from the farms in the mid 1800's and America witnessed the industrial revolution, manufacturing was a vibrant segment of the economy. But that turned, beginning in the late 1970s, and significant decreases in manufacturing employment have been noted. One writer claims that from manufacturing's peak in 1979, we have lost 7,231,000 manufacturing jobs in America. It is possible that the growth in the service sector, and decreases in manufacturing are making American workers safer.

Another interesting change is federalization of safety. For the first 195 years of our American history (1776 through 1971), people worked, goods were produced and transported, and people consumed. The protection of worker safety was arguably, and unfortunately, not paramount. Following a marked liberalization in the United States Supreme Court's view of the Interstate Commerce Clause, early in the 20th Century, federal regulation began to proliferate and override states' legislation and regulation of the workplace. One interesting example was the 1971 enactment of the Occupational Safety and Health Act, creating an "Administration" for safety. The "Act" and the "Administration" came be collectively referred to by the acronym OSHA. 

This national safety legislation, and the regulations enacted thereunder are broad. Found in the Code of Federal Regulations, Chapter 29, the OSHA regulations are divided into sections: General Industry, Construction, Maritime, Record-Keeping, and Agriculture. Each of those is also subdivided. In all there are about 134 subsections. If all the various OSHA tables of contents were combined, the resulting list would be 1,337 lines long. Single-spaced, with minimal margins (in a Times New Roman 10 pt font, about 63 lines of text fit on a page) the 1,337 lines of OSHA regulation tables of contents would stretch over 20 printed pages. It is a significant volume of regulation. 

General Industry (Section 1910) is divided into twenty-one subsections (labelled "A" through "T," and subsection "Z," with "U through "Y" currently reserved for more regulations to come). And, there are further sub-subsections under each. The table of contents is about 460 lines long. 

Construction (Section 1926) is divided into twenty-nine sections (labelled "A" through "CC." This table of contents is about 459 lines long. 

Maritime is divided into three (Sections 1915, 1917 and 1918). Section 1915 is divided in seventeen subsections "A" through "P" and "Z" with "Q" through "Y" reserved for further regulation. The Section 1915 table of contents is about 171 lines long. Section 1917 is divided into seven subsections "A" through "G," about 86 lines of table of contents. Section 1918 in ten subsections "A" through "J" has about 89 lines of table of contents. 

Record Keeping (Section 1904) is divided into forty-six subsections (with subsections 13 through 28 reserved for future regulations). This table of contents is a mere 48 lines long. 

Agriculture (Section 1928) is divided into four subsections "A" through "D" and "M," with subsections "E" through "L" reserved for future regulations. This is the shortest table of contents at only 24 lines. 

The Occupational Safety and Health Administration has the authority to fine employers for violations of the various regulations. Workers' compensation news cites frequently feature individual examples, and the OSHA website provides an ongoing parade of situations and fines. OSHA fines cannot be said to be rare. These fines result from complaints, whistelblowers, investigations, and site visits. Employers are being investigated and fined. The last instance listed on the OSHA website as of today proposes to fine the employer $138,430 (about 9,000 hours of labor paid at the much heralded hourly rate of $15.00; that is 4.5 full time employees for a year). Most employers would notice such a fine taken from its bottom line.

Whether OSHA is successful has been the subject of significant debate. Economist David Well addressed OSHA's effectiveness in a 2003 Frontline program, OSHA, beyond the Politics, produced by the Public Broadcasting Corporation. He concludes that quantifying the effectiveness of this vast safety effort is elusive. He notes that "studies that attempt to measure the agency's impact at a macro level generally find that its impact on injury and illness rates has been limited." But, "on a micro level -- that is, its impact on specific employers or workplaces over time -- one comes away with a more favorable impression of its effectiveness." He concludes that on this micro level "research shows that OSHA inspections and interventions can pack a significant punch in some situations."

Over the 45 years since OSHA was enacted, the federal government has invested billions of taxpayer dollars (detailed in OSHA, beyond the Politics) in the program. With this vast investment, the Public Broadcasting Corporation program concludes that its macro impact has been "limited." Its micro impact "can" be significant "in some situations." 

The analysis leads to questions. 

(1) With the establishment and effort of this vast federal safety program, was the Florida safety program necessary or redundant in 2000? Is there empirical data that demonstrates its necessity?
(2) Is there any empirical data to support that either frequency or severity of either accident or injury in Florida has increased since 2000?
(3) Is there any empirical data to support that Florida workers today are "no safer" than employees in 1911?

William Demming is credited with the phrase "in God we trust, all others bring data." In the discussion of workplace safety, and the efficient expenditure of resources, it is hoped that all sides of the debate will in fact bring data to support conclusions or opinions as to the need for a Florida state safety agency. Or as Cuba Gooding Junior prodded in Jerry McGuire, "show me the" safety! "show me the" safety!" Where is the empirical evidence of OSHA's ineffectiveness/insufficiency, the need for a state agency and the absence of safe practices today?




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