“This is essentially telling the country that a pork shoulder is
worth more than a worker’s life,” said David Michaels, who ran OSHA under
President Barack Obama and teaches now at the George Washington University
School of Public Health.
OSHA claims that $13,494 is the
maximum penalty it’s permitted to impose under the law. That may strike you as
implausible, and so it is—it’s not true at all. The $13,494 fine is OSHA’s ceiling
for a single serious violation, but there have been plenty of
instances in the past when OSHA derived multiple “willful” violations out of
one bad action. The only reason OSHA regulators couldn’t, in this instance, was because
they were operating under the agency’s “general duty clause.” That clause is
embedded in the 1970 statute that created OSHA: It holds that employers must
keep workers “free from recognized hazards
that are causing or are likely to cause death or serious physical harm.” For
complicated reasons, OSHA can’t easily charge multiple “willful” violations
when it’s using the general duty clause. Hence the paltry Smithfield fine of
$13,494.
So why was OSHA
relying on the general duty clause? Good question! OSHA’s enforcement officials
consider the clause one of its weakest enforcement tools and have seldom used
it in the past, even under Trump. (In fiscal year 2018, the general duty
clause was applied in only 1.5 percent out of a total
of roughly 60,000 OSHA citations.) If the
Trump Labor Department, which oversees OSHA, were at all serious about
enforcing worker safety during the pandemic, then six months ago it would have
issued an “emergency temporary standard” to establish clear rules about what
employers must do to protect workers during this emergency. But OSHA refused
to, probably at the direction of the White House.
Now the Trump
administration has the nerve to claim that its hands are tied. That’s nonsense.
When OSHA uses more effective enforcement tools at its disposal, it can collect
upward of $1 million. Under Michaels, for instance, OSHA was able to level a $1.4 million fine in
2016 at a Wisconsin shipyard for multiple “willful egregious” violations
of lead safety standards. The state of California this week levied a
$200,000 fine for Covid-19 workplace violations that it said were committed by a
frozen food manufacturer called Overhill Farms.