In Defense of OSHA Enforcement: The View from the Top; Richard Fairfax, the Director of OSHA's Enforcement Program, Addresses the New York Times Articles Sharply Critical of OSHA Enforcement and What the Agency Is Doing to Bolster Its Inspection Programs
Nash, James L., Occupational Hazards
OH: According to the New York Times, since 1982 there have been 1,242 cases where a worker died because of a willful violation of OSHA rules, and only 7 percent of these were referred to the Department of Justice (DOJ) for criminal prosecution. Specifically, you were charged with having little contact with William Sellers IV, the man at DOJ who handles most OSHA cases. Is this accurate?
Fairfax: I don't agree with the Times that we aren't in close contact with DOJ. As soon as our compliance officers suspect we have a criminal case, it starts a whole process. The case moves up from our local office to the regional office and they're in close contact with the solicitor's office and they start informal conversations with DOJ. It's the Department of Labor's solicitors, not OSHA, who ultimately make the referral to DOJ. And remember, you must meet a higher standard of proof for criminal than for civil cases.
OH: Has the Times series led you to re-examine any of your practices with respect to these cases?
Fairfax: They raised a number of issues, which was good. I don't think we need to change the law or the OSH Act. It has led me to re-examine a number of things, and I'm talking with people inside and outside the agency to get new ideas.
Currently our inspectors are trained to do civil investigation, so we are developing a new course on criminal investigations with the OSHA Training Institute. These investigations require much more evidence than our typical civil cases to document willfulness. I am shooting to have two people in each area office who will be trained to handle criminal cases.
The articles questioned our data tying willful violations to fatalities. I didn't agree with them, but people in my office will take a look
OH: Are you doing anything else to improve OSHA's record of going after the truly bad actors?
Fairfax: One year before the original Times piece, we started working on an enhanced enforcement program to deal with recalcitrant employers, and now we're fine-tuning it. So far we have used it with about 40 companies. It has a number of elements.
Follow-up inspections are mandatory in almost all cases. We also expect more from companies who settle these cases; they must hire a consultant and provide us with injury and illness records. …