Modern Oil Co. of Shawnee, OK, which operates about 30 Kwik Stop Convenience Stores, faces a federal lawsuit for firing an employee who complained about workplace safety.

An employee complained to her manager that beverage boxes stacked too high posed a safety hazard. Then the employee took the complaint to OSHA.

OSHA claims a month after receiving the complaint, the store manager figured out which employee filed the complaint and fired the worker.

In addition to back pay and reinstatement, the lawsuit seeks compensatory and punitive damages for the employee.

“Employees should be free to exercise their rights under the law without fear of termination or retaliation by their employers,” said William Burke, OSHA regional administrator in Dallas. “This lawsuit underscores the Labor Department’s commitment to vigorously take action to protect those rights.”

That’s the situation Sodexo, a Maryland company that provides facility management services to school districts, finds itself in.

Brian Barker was employed by Sodexo as manager of grounds keeping for the South Plainfield School District in New Jersey. Barker says he warned his managers at Sodexo about safety conditions, but the company didn’t take action. Then, Barker went to OSHA.

OSHA issued nine serious violations to Sodexo, including ones for:

• not having a working lock system on a cabinet used to store gasoline and diesel fuel
• failing to perform an assessment to determine if protective gear was needed by employees working with gasoline, diesel, weed killer and field-marking paint
• lack of safety training for workers
• failing to confirm that employees were competent to operate forklifts
• an overhead electrical junction box without an appropriate cover, and
• failing to develop, implement or maintain a hazard communication program for workers handling chemicals.

OSHA initially issued Sodexo $10,800 in fines. Sodexo recently settled the matter for $8,100.

Barker says four days after OSHA issued its findings to Sodexo, his position was eliminated without any justification, and he was fired.

Sodexo says it took immediate action to address the OSHA citations. It hasn’t issued any comment on Barker’s situation.

OSHA recently made it easier for employees to find information on the web about filing a retaliation complaint. It now has a dedicated web page with instructions on how to file a complaint at www.whistleblowers.gov

Separate interviews with former BP employees back up the findings of the internal investigations.

Included in ProPublica’s report:

• BP’s internal 2001 report warned that the company faced a “fundamental culture of mistrust” by its workers, in part because senior management lacked a structure of accountability.
• The 2004 internal investigation stated, “Pressure on contractor management to hit performance metrics (e.g. fewer OSHA recordables) creates an environment where fear of retaliation and intimidation did occur.”
• Once again in 2007, a report echoed BP’s previous internal investigations, finding, BP pressured its contractors and employees to save money. “Many of the people interviewed indicate that they felt pressured for production ahead of safety and quality,” the report said.

The BP situation has caught the attention of OSHA head David Michaels, and he ties it to one of his predominant current themes about injury logs.

At the recent American Industrial Hygiene Conference in Denver, Michaels said he was struck by the fact that top executives at BP were on the offshore oil rig in the Gulf of Mexico handing out certificates and awards to people for having worked seven years without a recordable injury, the very night before the rig blew up.

Michaels called for reforms that stop measuring safety performance by injuries or lack thereof, and instead start measuring risk of significant events occurring.

ProPublica’s article is here.

How do you encourage employees to let management know about hazards? Let us know in the Comments Box below.

In the wake of the Upper Big Branch Mine disaster that killed 29 workers, Gov. Joe Manchin announced the launch of the Mine and Industrial Accident Safety Hotline/Tip Line.

“I want all miners and workers from any other industry in West Virginia to feel empowered to report problems in the workplace without fear of retribution,” Manchin is quoted in a state press release. The governor says he wants more workers to become involved in strengthening workplace safety.

The West Virginia Division of Homeland Security and Emergency Management will staff the hotline 24 hours a day. Callers can remain anonymous.

Manchin wanted an agency not affiliated with a regulatory body to receive the calls. The Homeland Security workers who will answer the hotline are trained to handle calls involving safety. Tips will be forwarded to the proper agency for investigation.

Do you think this hotline can help avoid future disasters like the one at the Upper Big Branch Mine? Let us know in the Comments Box below.

“Unscrupulous employers often consider it more cost effective to pay the minimal OSHA penalty and continue to operate an unsafe workplace than to correct the underlying health and safety problem. The current penalties do not provide an adequate deterrent.”

Those words came from OSHA administrator David Michaels in his testimony in favor of the Protecting America’s Workers Act (PAWA).

The bill would include public employers under OSHA and increase whistleblower protections.

But the major attention has been paid to the parts of the measure that would increase OSHA fines. The bill would:

• increase the maximum penalty for knowingly violating a rule that results in the death of an employee to 10 years in prison
• increase penalties for willful or repeat violations that involve a fatality to as much as $250,000, and
• create automatic increases in fine amounts by tying them to inflation.

In his testimony before a U.S. House subcommittee, Michaels pointed out that the average OSHA fine is about $1,000. The median fine for cases in which a worker was killed is about $5,900.

Michaels went on to point out that other federal agencies have the ability to issue much larger fines for infractions that don’t include human death. For example, the Department of Agriculture can impose a $130,000 fine on milk processors for willful violations of the Fluid Milk Promotion Act. TV and radio stations can be fined $325,000 for indecent language. The EPA can issue $270,000 fines for Clean Air Act violations.

Michaels also supports PAWA’s provision to increase the number of criminal prosecutions for workplace deaths and serious injuries.

What do you think about Michaels’ assertion that OSHA penalties are too low to matter to most businesses? Should the penalties for the most egregious violations, those that result in serious injury or death, be significantly increased? What about prison time for company managers when a worker is killed on the job? Let us know what you think in the Comments Box below.

Washington’s Division of Occupational safety and Health (DOSH) fined Sacred Heart Medical Center in Spokane $8,000 for failing to follow state and national H1N1 flu safety standards.

The Washington State Nurses Association filed a complaint against Sacred Heart. Nurses at the hospital were reporting difficulty in accessing properly fit-tested N-95 masks when treating patients with H1N1 flu.

Specific violations include:

• inadequate written respiratory protection program
• not all employees who wear N-95 respirators were fit tested or trained on an annual basis, and
• no provisions were made for men with facial hair, which can interfere with the seal of N-95 respirators.

In the first year of the Obama administration, OSHA was busy handing out fines the likes of which hadn’t been seen for eight years. Here’s our rundown of 10 significant fines from the last 12 months, and what they mean for businesses:

1. OSHA issues largest fine ever: $87.4 million to BP. This fine demonstrates OSHA’s intent to check up on companies once they’ve made serious safety mistakes. The agency evaluated BP’s progress after the 2005 fire and explosion that killed 15 people and injured 170 more at its Texas City, TX refinery. OSHA issued 270 “notifications of failure to abate” and identified 439 new willful violations at the plant.
2. Two executives face prison time and huge fines in deaths of five workers. Phillipe Goutagny and James Thompson, executives with RPI Coating, each face 2.5 years in prison and a fine up to $1.25 million if convicted. On Oct. 2, 2007, vapor from a solvent ignited inside a tunnel at a hydroelectric plant in Colorado. Workers survived the blast but were overcome by smoke and fumes and died of asphyxiation. OSHA says it will work more closely with the Justice Department in cases like these to bring criminal charges against executives with penalties that include prison time.
3. OSHA wastes no time in using new per-employee citations, issues $1.2 million fine. G.S. Robbins & Co. of St. Louis, MO, was hit with 21 egregious willful citations for hazardous chemical handling. Each citation was on a per-instance basis. Even during this period of difficult economic recovery, OSHA won’t hesitate to use per-instance, per-employee fines to hike total fine amounts. This wasn’t the only instance in which OSHA used per-instance citations in 2009 (see item #7 below).
4. Company hit with $1.14 million fine following employee complaint. Are the big fines relegated only to incidents involving deaths or multiple serious injuries? Hardly. OSHA began a December 2008 inspection at Milk Specialties in Whitehall, WI, in response to an employee complaint. Willful citations were issued for the employer’s failure to comply with OSHA’s confined space and lockout/tagout regulations. OSHA is taking employee complaints seriously.
5. After two similar incidents, owner and manager go to jail. ANC Roofing of Santa Rosa, CA, owner Kenneth Alton pleaded no contest to failing to protect employees from a hazard. He was sentenced to nine months in jail and a $248,000 fine. Supervisor Robert McAfee pleaded no contest to one misdemeanor violation and was sentenced to 30 days in jail. On May 11, 2006, an ANC employee backed into an unguarded skylight and fell 21 feet to his death. Four months later, another ANC employee suffered major head trauma when he fell 19 feet from an unprotected skylight.
6. OSHA fines Wal-Mart $7,000 for worker trampling incident. A Wal-Mart worker was trampled to death by a crowd of 2,000 shoppers on the day after Thanksgiving in 2008. OSHA said Wal-Mart should have recognized that its employees were exposed to being crushed by the crowd based on previous experience. Wal-Mart fought the fine. OSHA used the General Duty Clause to issue the fine and has said it will use the GDC in similar situations where safety was compromised but a specific regulation wasn’t violated.
7. Company faces $1.09 million OSHA fine for 202 willful violations. OSHA didn’t really need anyone’s permission to start issuing per-instance fines (see item #3 above), but it got the go-ahead in the form of a decision from the Occupational Safety and Health Review Commission (OSHRC). The appeals panel ruled OSHA properly cited Smalis Painting Co. on a per-employee basis for violations of the lead-in-construction regulations, in connection with a project near Pittsburgh, PA. OSHA monitored six Smalis employees for lead exposure. Based on that data, OSHA issued violations for all employees who would have been exposed to the same hazards.
8. OSHA is getting companies to agree to implement safety and health improvements above what’s required by regulations. A-1 Excavating of Bloomer, WI, agreed to make numerous changes in its work processes in exchange for lowering fines from almost $900,000 to $470,000. A-1 has to hire a full-time safety director, develop and implement site-specific safety and health plans for all major projects, identify all job sites to OSHA before work begins for the next three years, reduce the salary of job superintendents and project managers who fail to comply with OSHA requirements, and retain a third-party safety consultant.
9. Cintas agrees to pay $3 million in fines and to comply with other conditions. In some cases, it hasn’t been an either-or situation between fines and strict safety improvements. After a worker was killed when he fell onto an unguarded conveyor and was dragged into a 300-degree industrial dryer, Cintas agreed to the huge fine and to retain a team of independent experts to develop permanent fixes and review interim controls. Cintas also agreed to hire additional safety staff, conduct more frequent internal safety inspections, and establish new systems to examine employee complaints.
10. A construction company agrees to pay $750,000 in fines and cut the pay of unsafe supervisors. Broadway Concrete of New York, NY, agreed to reduce the salaries of senior job superintendents who failed to comply with job safety practices. Broadway also agreed to hire a full-time corporate safety director, develop a new corporate safety plan, and provide OSHA with information on major projects and access to all job sites for the next four years.

What do you think of OSHA’s recent enforcement tactics? Let us know in the Comments Box below.

“Sixteen workers are killed a day in the United States because of reckless negligence on the part of their employers,” according to a new Web site.

The statement on the home page of 16deathsperday.com goes on to say, “Under existing laws, these employers get a slap on the wrist, or walk away scot-free. Meanwhile, workers who blow the whistle face threats and retaliation at the workplace.”

A five-minute video profiles two workplace fatalities where companies paid relatively small fines and didn’t face criminal prosecution.

The group’s message: Companies would rather pay low OSHA fines rather than spend more money on worker safety.

To change that, the Web site endorses passage of the Protecting America’s Workers Act. That bill would:

• allow OSHA to pursue criminal charges against a company for an employee’s death, including fines and up to 10 years in prison for owners and managers. Criminal penalties for serious bodily injury to an employee could include up to five years in prison.
• increase the civil penalty for an employee death from $50,000 to $250,000, with a minimum $25,000 fine for companies with 25 or fewer employees
• raise the maximum fines for willful and repeat citations to $120,000, and
• increase OSHA fines every four years for inflation.

What do you think of 16deathsperday.com’s message? Let us know in the Comments Box below.

OSHA has filed a whistleblower lawsuit on behalf of an employee of Bering Sea Eccotech, based in Anchorage, Alaska.

The worker complained about safety violations after observing two dangerous explosions. The company barred the employee from being rehired.

An OSHA investigation revealed that the former employee’s complaint had merit. The company still refused to rehire the employee or pay back wages.

The lawsuit seeks to reinstate the employee, secure compensatory damages and lost wages, and require the company to post a notice for 60 days that explains employee rights under the whistleblower section of the OSH Act.

Bering Sea Eccotech specializes in unexploded ordnance clean-up, range management and remediation services.

The company is responsible for cleaning up unexploded ordnance at the Camp Pendleton Marine base in San Diego.

Milk Specialties Co. of Whitehall, WI, faces $1.14 million in OSHA fines in connection with a Dec. 2008 inspection. Inspectors visited the facility in response to a complaint alleging a variety of hazards at Milk Specialties’ whey processing plant.

OSHA issued 17 willful violations, totaling $1.07 million, for confined space and control of hazardous energy (lockout/tagout) requirements.

The citations say untrained employees entered confined spaces and performed maintenance and cleaning on powered equipment without protection from various hazards.

The company also faces 4 repeat and 17 serious citations that account for the balance of the total fine. Among the other citations:

• combustible dust hazards
• lack of exit route lighting and signage
• uninspected fire extinguishers, and
• deficiencies in guarding floor and wall openings.

Milk Specialties has been inspected by OSHA 15 times since 1974, including 4 inspections in Wisconsin between 2006 and 2008.

The company has 15 days to accept or appeal the citations.

You can read more about OSHA’s citation here.

OSHA wielded its more expensive willful, repeat and serious citations against this company that has a history of safety violations.

But, is a million-dollar citation enough, or should OSHA take further steps against the company such as closing this particular facility until safety improvements are made?

Let us know what you think in the Comments Box below.

No one should really be surprised that OSHA under the Obama administration is stepping up enforcement.

But for anyone who had any doubts, Barab is making it pretty plain.

In a recent speech to the Maritime Advisory Committee, Barab noted the funding increase OSHA has already received to boost enforcement.

He capped off the budgetary summary by saying, “I want to be absolutely clear: OSHA is back in the business of standards and enforcement.”

Barab also noted that the funding increases aren’t over. The fiscal year 2010 budget proposes another $50 million increase for the agency.

OSHA plans to use part of that increase to hire 200 more employees: 130 more inspectors, 25 more investigators assigned specifically to whistleblower cases and 20 more staff who will help develop safety and health standards.

A transcript of Barab’s speech is here.

The bill (H.R. 2067) would expand OSHA’s jurisdiction to public employees, including federal, state and local government workers.

Whistleblowers would also get more protection.

But some of the biggest changes would be made to penalties OSHA could issue:

• Fines for willful and repeat citations would increase, with the minimum changing from $5,000 to $8,000 and the maximum from $70,000 to $120,000.
• The maximum fine for serious, failure-to-abate and other-than-serious citations would increase from $7,000 to $12,000.
• The maximum for violations of posting requirements would also increase from $7,000 to $12,000.
• If a violation causes the death of an employee, civil penalty amounts can range from $50,000 to $250,000, with $25,000 as the minimum for smaller companies with 25 or fewer employees.
• OSHA could also pursue criminal charges against a company for an employee’s death, including fines and up to ten years in prison for owners and managers. Criminal penalties for serious bodily injury to an employee could include up to five years in prison.

The bill would also increase OSHA fines every four years for inflation.

In the first case, OSHA has ordered Southern Air, Inc., of Norwalk, CT, to pay nine former employees more than $7.9 million in wages, damages and legal fees. The air cargo carrier must also withdraw a lawsuit against the former workers.

After some of the workers raised safety concerns about the company, Southern Air filed a defamation lawsuit against them.

An OSHA investigation found the company’s lawsuit was filed in retaliation against the workers.

Southern must pay the employees $6.0 million in lost future earnings, $1.8 million in compensatory damages and $129,000 in legal fees.

In the second case, announced just three days later, OSHA ordered United Parcel Service (UPS) to immediately rehire, pay back wages, benefits, compensatory damages and $50,000 in punitive damages to a former San Francisco-area driver.

OSHA says the driver was wrongfully terminated after he refused to drive after raising safety concerns because of bad weather and visibility issues.

Party Rental Enterprises, Inc., dba Able Linen Service, must pay the former employee $20,000 in back wages plus $17,000 in punitive damages, and delete any references to suspension and discharge from the employee’s personnel file.

The company will also have to post the OSHA whistleblower poster at its locations in Auburn, Cicero and Liverpool, NY. Employees at the three locations must receive the OSHA whistleblower fact sheet, too.

The employee’s complaint dates back to 2005. OSHA ordered the employee’s reinstatement and payment of accrued wages and benefits.

However, the company didn’t respond to the investigation, the order, subpoenas, summonses and other legal action until the Department of Labor secured a default judgment from the court.

The Occupational Safety and Health Act protects employees’ rights to file a complaint with OSHA or to bring safety and health issues to the attention of their employers without fear of termination or other reprisal.