03/2013

OSHA Offers Few Protections for Poultry Workers

A remarkable transformation took place at one Alabama poultry plant whenever the U.S. Occupational Safety and Health Administration (OSHA) conducted an inspection.

“When the big shots visit the plant, we’re told to clean, work and follow policies,” a poultry worker said during this survey. “I’m told to work differently when OSHA comes to inspect. Supervisors are nice, and we pretend like everything is fine and we like our job. OSHA has never talked to [me or my co-workers] about our work conditions.”

As this worker’s story shows, though OSHA inspections are “normally” implemented without advance notice to employers, it is not always the case. And too often it means that companies are successful in hiding dangerous conditions.

Despite OSHA’s responsibility to ensure worker safety, it has no mandate to regulate processing line speeds to protect workers. The U.S. Department of Agriculture (USDA) is the only agency that currently regulates line speeds. But the USDA’s regulations are designed to guard against contamination of the product, not to protect workers from hazardous conditions.

OSHA, in fact, has no standards tailored specifically for the poultry industry. This means that only the “General Industry OSHA Standards” are used to regulate the industry. OSHA is the only source of health and safety regulations for Alabama companies.

OSHA is also severely understaffed. It employs enough inspectors to inspect each U.S. workplace, on average, once every 129 years.

Official worker complaints rare

In this survey, poultry workers were asked whether they were aware of a complaint to any worker protection agency, such as OSHA or another branch of the U.S. Department of Labor, that was made by themselves or a co-worker. Even though the overwhelming majority of the 302 workers surveyed told us of dangerous conditions at their workplace, only 17 (of 247 workers who answered the question) reported knowledge of a complaint filed with an agency such as OSHA.

Among these 17 workers, 11 indicated that nothing at all happened in response to the complaint, and only three reported any positive changes.

These data help show that many workers are unable to file a complaint because of the fear of retaliation and the complex complaint process. They also show that even when a worker files a complaint with OSHA or a similar agency, inspections and positive results are rare. 

A handful of workers reported that working conditions became more dangerous after an OSHA inspection. That’s because the company had slowed the processing line while OSHA officers were in the plant. Once inspectors left, the line speed was increased beyond its usual rapid pace to make up for the lost production.

OSHA conducts some planned inspections at worksites it strategically selects based on data or a random sampling, rather than in response to complaints filed by individual workers. However, over the past five years, it has conducted only two planned inspections in Alabama poultry processing plants. OSHA also inspects sites that have received worker complaints. Though OSHA investigates employee complaints, several factors prevent the agency from effectively addressing many of the abusive conditions workers described in this survey.

A key flaw in OSHA enforcement is that it primarily investigates complaints from current employees. Complaints from former employees – the workers with least to fear – are rarely investigated. But the agency offers little protection from retaliation for current workers who bring attention to safety problems, and few in the poultry industry are willing to risk their jobs, particularly when they have little evidence that filing a complaint will improve conditions.

Even workers courageous enough to file a complaint may find they have waited too long to take action. Employees have only 30 days to file a complaint. David Michaels, assistant secretary for OSHA, has argued that it often takes more than 30 days for an employee to understand a hazard in the workplace, much less to formally file a complaint. The strict 30-day rule prevents many valid complaints from being reviewed.

Even complaints that are investigated face uncertain outcomes and weak enforcement. OSHA at times has sought to increase the number of inspections and the number of serious sanctions handed down each year, but very few health and safety cases are ever handed over to the U.S. Department of Justice (DOJ) for formal prosecution. According to William M. Murphy, a former top OSHA official, an objective to prosecute cases is “never communicated” to the OSHA staff.

This was apparent in 2003, when The New York Times reported that in 20 years, OSHA made referrals to the DOJ in only 7 percent of cases involving deaths caused by willful employer violations.

In addition, civil and criminal penalties are often so low that they fail to provide any deterrent. According to Michaels, OSHA’s most serious limitation is “the very low level of civil penalties allowed under our law, as well as our weak criminal sanctions.”

The low level of civil penalties is visible in the data on OSHA’s enforcement efforts in Alabama’s poultry processing plants, which have seen 20 inspections in the past five years, resulting in 78 citations and slightly more than $184,000 in fines actually paid. Twenty-two of these citations were deleted or excluded from the formal record. These 22 citations include three citations assessed at the most serious level.

Most fines are low, often $5,000 or less. These fines are often waived or greatly reduced during settlement. Alabama poultry plant employers paid the full fine issued for only 17 of the 78 citations issued for workplace safety violations during the past five years.

Quite simply, it is often cheaper to run an unsafe plant and pay minuscule fines than to protect workers from injury and illness. Without the threat of strong penalties for willful OSHA violations, the agency is unlikely to promote any real change. Without proper enforcement mechanisms, OSHA efforts cannot lead to safer workplaces.

Workers can’t file lawsuits 

Health and safety problems are mostly exempt from a significant protection enjoyed by workers trying to enforce other types of rights – the ability to file a lawsuit. A private right of action by an employee against an employer is not available under OSHA statutes. In a speech to a U.S. Senate committee, Michaels, the assistant secretary for OSHA, has argued that employees should have the right to file civil suits in federal court against employers for violating orders issued to provide relief to workers.

A private right of action would permit workers to protect their own health and safety instead of relying on an understaffed agency that has been, for several decades, increasingly unable to enforce health and safety standards in most American workplaces. Without a private right of action, these workers remain vulnerable.

This inability to bring a lawsuit extends even to the Occupational Safety and Health Act’s Section 11(c) – a section of the statute created specifically to protect whistleblowers filing OSHA complaints against employers. Without a private right of action, workers reporting health and safety violations largely do so at the risk of employer retaliation.


    OSHA, OSHA Fact Sheet: OSHA Inspections, available at http://www.osha.gov/OshDoc/data_General_Facts/factsheet-inspections.pdf.

   See, e.g., Human Rights Watch, supra note 5; OMB Watch, OSHA Must Improve Safety for Meat and Poultry Workers, Feb. 7, 2005, http://www.ombwatch.org/node/2262.

OSHA, “OSHA Poultry Processing Industry eTool: Standards and Compliance,” available at http://www.osha.gov/SLTC/etools/poultry/standards.html.

  Id.

          
The number of OSHA compliance officers per million workers dropped from 14.8 to 7.3 between 1980 and 2010. AFL-CIO, Death on the Job, at 73 (2012); AFL-CIO, Death on the Job, at 2 (2011).

          
OSHA attempted a third planned inspection, but targeted a plant that had already closed. See data obtainable from OSHA, Statistics & Data, supra note 14.

          
See 29 C.F.R. § 1903.11(a) (“Any employee or representative of employees who believe that a violation of the Act exists in any workplace where such employee is employed may request an inspection of such workplace . . .”) (emphasis added).

          
OSHA, “OSHA Whistleblower Protections Fact Sheet,”
available at http://www.osha.gov/OshDoc/data_General_Facts/whistleblower_rights.pdf.

          
Putting Safety First: Strengthening Enforcement and Creating a Culture of Compliance at Mines and Other Dangerous Workplaces: Hearing Before the Comm. on Health, Educ., Labor and Pensions (Apr. 27, 2010) (statement of David Michaels, Assistant Sec’y for Occupational Safety & Health), available at http://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=TESTIMONIES&p_id=1122.

        
Michaels proposed that legislators pass the Protecting America’s Workers Act (PAWA), an amendment to the Occupational Safety and Health Act of 1970. PAWA would extend the complaint deadline from 30 days to 180 days. Id.

        
David Barstow, “U.S. Rarely Seeks Charges for Death in Workplace,” The N.Y. Times (Dec. 22, 2003), http://www.nytimes.com/2003/12/22/us/us-rarely-seeks-charges-for-deaths-....

Id.

  Human Rights Watch, supra note 5.

  Putting Safety First, Michaels, supra note 41.

OSHA categorizes citations based on their level of gravity, with the most serious violations rated as 10, and the least serious rated as one. See OSHA Field Operations Manual, Dir. No. CPL 02-00-150, at 6-6, Apr. 22, 2011, available at http://www.osha.gov/OshDoc/Directive_pdf/CPL_02-00-150.pdf.

        
Even a “serious” violation, which is defined to mean “a hazard, violation or condition such that there is a substantial probability that death or serious physical harm could result,” 29 C.F.R. pt. 1960.2(v), can at most result in a maximum fine of $7,000. OSHA, OSHA Administrative Penalty Information Bulletin (effective Oct. 1, 2010), http://www.osha.gov/dep/enforcement/admin_penalty_oct2010.html.

   See data obtainable from OSHA, Statistics & Data, supra note 14.

   Michael S. Worrall, Meatpacking Safety: Is OSHA Enforcement Adequate, 9 Drake J. Agric. L. 299, 315 (2004).

    Putting Safety First, Michaels, supra note 41.

  The number of OSHA compliance officers per million workers dropped from 14.8 to 7.3 between 1980 and 2010. AFL-CIO, Death on the Job, at 73 (2012), available at http://www.aflcio.org/Issues/Job-Safety/Death-on-the-Job-Report. There are only enough federal OSHA inspectors to inspect each workplace, on average, once every 129 years. Id. at 2.

29 U.S.C. § 660(c)(2) (providing an investigation and possible litigation by OSHA as the only remedy for a worker who has suffered retaliation for exercising health and safety rights, and requiring the employee to file her complaint within 30 days).