Worker Safety
Benjamin Franklin
The request for information, which appeared in the Federal Register (71 Fed. Reg. 69504) and on DOL's Web site, sets a Feb. 2, 2007, deadline for interested groups and individuals to comment on a wide-ranging information request about the 13-year old law. It is the first major examination of the regulations since DOL issued implementing rules in 1995.
Business groups--who have been pushing for changes in the law--quickly praised DOL's announcement that it was seeking information, but questioned whether the request would delay a possible regulatory fix.
"[The Society for Human Resource Management] hopes this is heading towards a regulatory proposal," SHRM's director of government affairs Michael Aitken told BNA Dec. 1. "We feel the record has been pretty well-established that there needs to be a revisiting of the rules, but this is a good step."
Echoing those sentiments, Jason Staczewksi of the National Association of Manufacturers told BNA Dec. 1 that the request for information showed that DOL was "listening to our pleas for help in the past" and that there was hope that a regulatory fix was in the works.
The decision not to issue a proposed rule but instead ask for more information was considered the most puzzling part of the Labor Department announcement since advocates on both sides of the debate assume that revising the regulations is part of DOL's plan.
Deven McGraw of the National Partnership for Women & Families in Washington, D.C., told BNA Dec. 1 that her group, which advocates on behalf of working women, was surprised that DOL chose to request information instead of issue a proposed rulemaking.
"We know that the business groups have been pushing for regulatory changes and we have been bracing for the Labor Department to take the issue on," said McGraw, who is the partnership's chief operations officer. "The fact that they requested information instead slows that process down, but we are still alarmed at the breadth of the information request."
Asked if her group was relieved that there were no proposed FMLA changes in the announcement, McGraw responded "it could have been a lot worse."
The FMLA has been on DOL's regulatory agenda since December 2002 after the U.S. Supreme Court struck down a portion of the regulations in its decision in Ragsdale v. Wolverine Worldwide Inc., 535 U.S. 81, 7 WH Cases 1153 (2002); 54 DLR AA-1, 3/20/02. DOL held stakeholder meetings with 20 groups in late 2002 and early 2003, but has failed to craft changes to the regulations despite a series of legal setbacks and widespread criticism from employer groups.
When the request for information was announced Nov. 30, Victoria A. Lipnic, assistant secretary for DOL's Employment Standards Administration, emphasized that the request was not a proposed rule and that it should not be seen as an indication that a regulatory fix was imminent.
When asked about the likely reaction by business and employee groups, Lipnic acknowledged it was "a reasonable assumption" by interested parties that proposed regulations were in the works, but reiterated that DOL's current step should not be seen as a precursor to something larger.
Rumors of possible FMLA revisions have been swirling through the business and employee advocate communities ever since the Ragsdale decision, where the high court said a regulatory fix was needed. In Ragsdale, the Supreme Court invalidated the Labor Department's regulation requiring that an employee's 12-week allotment of FMLA leave only begins running when the employer notifies the worker that time off will count as leave under the law.
The talk about looming proposals hit a crescendo in April 2005 as business groups, organized labor, worker advocates, and Congressional Democrats all went on the offensive over what was seen as a signal by DOL that an overhaul was coming.
Labor Secretary Elaine L. Chao testified before the House Appropriations Committee's Subcommittee on Labor, Health and Human Services on March 17, 2005, that recent court decisions had prompted DOL to review the FMLA. Challenged by Rep. Nita M. Lowey (D-N.Y.) over possible changes, Chao said "no decision has been made" and that "any changes have to go through the administrative rulemaking process." Chao promised that she would testify before Congress regarding any changes that DOL ultimately decides to propose.
After that testimony, 100 Congressional Democrats sent a preemptive letter discouraging Chao from touching the FMLA and reasserting their commitment to the law.
"We urge you not to make any regulatory changes that would undercut the critical protections [the law] provides to working women and men and their families," the April 12, 2005, letter said. Reps. Rosa L. DeLauro (D-Conn.) and George Miller (D-Calif.), the co-chairs of the House Democratic Steering and Policy Committee, led the effort. Miller is the incoming chairman of the House Education and Workforce Committee.
The same day, a coalition of 200 organizations, including several labor unions, signed a letter to the Labor Department calling on regulators to maintain or expand the protections contained in the FMLA. The American Federation of State, County and Municipal Employees, Laborers' International Union, United Auto Workers, and United Steelworkers were among the signatories of the April 12 letter; others included a variety of groups advocating the interests of women, children, disabled persons, and other groups.
A day after the letters were released, representatives of NAM, the U.S. Chamber of Commerce, and SHRM held a joint news conference encouraging DOL to reopen the rule to public comment and consider changing some of its medical leave provisions.
A year earlier, an array of business groups sent comments to the Office of Management and Budget suggesting that the FMLA was overly burdensome to the business community and was an example of regulations that could be altered to save businesses money.
Critics of the FMLA rules in the OMB analysis, such as NAM and the chamber, complained that the regulations go beyond the original intent of the law. Key concerns cited were the Labor Department's broad interpretation of what constitutes a serious health condition qualifying for leave under the law and its failure to limit increments of intermittent leave.
Now that DOL has asked for comments on the FMLA, both business and employee groups are bracing for a major effort to provide data and information in an effort to stake out their position on the law.
"I like this idea of gathering information," said Melissa Josephs of Women Employed in Chicago. "It is better that they are doing it at this pace. This is at least slowing it down and allowing time for discussion and debate."
Josephs told BNA Dec. 1 that her group is concerned about any limitation on FMLA given the scope of the law now and suggested that reviewing the law's protections was "like picking at scraps to begin with" given the fact that the FMLA only provides unpaid leave.
She pointed to questions in the proposal around the issue of scheduled and unscheduled intermittent leave, a sticking point for the business community. Because business groups have proposed limiting small increments of leave, Josephs worried about the implication of forcing workers to take even larger chunks of unpaid leave when they actually only need an hour.
Rob Green, head of legislative and public affairs for the National Retail Federation, also praised the idea of getting more information about concerns surrounding the FMLA.
"It's a step in the right direction and an example of good government," Green told BNA Dec. 1. "When a regulation is more than ten years old, review is needed. DOL asked some very specific questions and really seemed to hone in on concerns."
NPWF's McGraw was much more skeptical about the kinds of questions being asked by DOL, but said her group was ready to work with allies to present as much information as possible to DOL to preserve and improve the law.
"The breadth of the request has created concerns," McGraw explained, "because they go well beyond the questions have that have been raised by the business community. One could conclude that these are all areas for potential regulatory action, and that's a real concern."
SHRM's Aitken emphasized that businesses were primarily concerned about the medical leave portions of the FMLA and that the family leave part of the act was working smoothly. He said SHRM planned to focus on issues dealing with chronic health conditions and how they were defined.
He said the vagueness of the "serious health condition" portion of the FMLA left employers uncertain about when conditions like stress, back pain, and other conditions that are unpredictable in nature but occur with some frequency are considered "serious."
But McGraw and Josephs emphasized that it was important not to scale back important protections and that workers' advocates needed to make the case for the importance of the FMLA and for maintaining what rights already exist.
"It's hard to argue with an objective need for an information request that is presented without an agenda," McGraw said. "But we can't take anything for granted and allow this to turn into something that would not be good for workers."
CWA, along with the IBEW, met with Verizon last month to talk about changes in education, training, tools and equipment to try to ensure that no one else is killed or disabled by telecom workers' proximity to power lines.
"They seem receptive to our concerns," said Ron Collins, assistant to District 2 Vice President Pete Catucci. "But it's going to be up to the union leaders and union members at Verizon to hold management accountable, to follow through."
More injuries and near-misses also have been reported by CWA members at AT&T, particularly in California. Leaders there have met with the company and have seen some improvements in its published safety policies and practices. National and local leaders hope to hold future meetings with the company.
The most recent electrical injury among CWA technicians occurred in December in northern California. In that case, a member of Local 9431 suffered severe burns and nerve damage in his hands when he came in contact with a power line while working to install telephone wire for AT&T.
Dave LeGrande, CWA safety and health director, said CWA fears the risk is growing in part because employers are cutting costs by hiring fewer workers and pushing existing technicians to work faster. "We are concerned that management's productivity demands are causing some workers to cut corners and not adhere to safety procedures," he said.
Collins said he raised that issue with Verizon executives. "My question to them was, 'Do you tell your field managers to encourage your workers, our members, to perform all of their safety checks every day?' They said that they do. We said that's not happening, that there's a push to 'hurry hurry, hurry, let's get one more job done.'"
Collins said future meetings are expected between the unions and Verizon and that CWA wants to provide the company with concrete examples of supervisors failing to encourage safety checks and workers feeling forced to rush. He asked that members with such experiences tell their local leaders.
CWA's Safety and Health Department has listed various near-misses, injuries and fatalities in a new seven-page safety fact sheet that is posted online at
The paper discusses the need for various types of training, safety equipment and regular "tailgate" meetings as work is assigned to focus on health and safety issues specific to a job and worksite.
All locals whose members work near power lines are urged to post and distribute the fact sheet. LeGrande, who also attended the Verizon meeting, is continuing to ask locals to report all electrical accidents or near misses to him at
Near misses may cause injuries, or simply alert officials to potential dangers. In Redding, Calif., for instance, a Local 9419 member working on an aerial platform recently noticed an arcing bridle wire. He further inspected the area and discovered that one leg of the power line had broken away from its electrical insulator. He called the power company and notified AT&T.
Union leaders say the four Verizon deaths over the past eight months -- two CWA members and two IBEW -- are the most they've ever heard of in so short a time. LeGrande said four other members have died of electrocution over the past eight years.
The most recent death occurred last October when a Local 2100 technician installing fiber optic cable near Baltimore-Washington International Airport was electrocuted while working in an aerial bucket.
Acknowledging growing complaints from workers, the state said new rules were necessary to ensure that workers were not unfairly refused drugs, surgery and other medical procedures that their doctors recommended.
"An unfair delay or denial in medical treatment is probably the worst thing you can do to an injured worker," said Carrie Nevans, acting administrative director of the state Division of Workers' Compensation. "The issue of medical treatment affects 100% of the people in the system."
The changes come more than two years after the governor and Legislature heeded the calls from businesses and overhauled the workers' comp system.
Since then, injured workers and their advocates have complained bitterly about the sweeping new authority given to insurers to second-guess doctors and veto treatment plans.
As a result, workers' comp premiums paid by businesses fell by more than 50% and insurers earned their highest profits in three decades. But workers said it was sometimes at their expense.
Now, the state is proposing to require regular state audits of insurers and fines of as much as $50,000 for a violation.
The proposed regulations, which are undergoing public comment and could go into effect next year, have drawn strong support from worker advocates and opposition from insurers.
They represent "a first major thrust by the agency to balance out some of the potential downside of the reform legislation," said Frank Neuhauser, a researcher who studies workers' comp and other types of social insurance at UC Berkeley.
Among the proposed fines is a $50,000 penalty for insurers that do not have a medical director to oversee review decisions. Using people who aren't medical doctors to scrutinize files could result in a $25,000 penalty. A $15,000 fine could be levied for failing to provide an expedited review of requests for treatment. Smaller fines, in the hundreds of dollars, would apply to procedural errors. But they could be eliminated once an insurer fixed the problem.
Representatives of the insurance industry call the proposed regulations severe and contend that the high penalties could discourage companies from taking full advantage of the cost savings provided by the 2004 law.
"We want bad actors to be deterred and punished," said Nicole Mahrt of the American Insurance Assn. in Sacramento. "But we are concerned that the regulations are so severe that they would make it more difficult" to properly review cases. "If you make a tiny error, there's a possibility of facing very serious fines."
Business organizations say they support the penalties in principle but call the proposed fines onerous. "This seems to be a little overboard," said Jason Schmelzer of the California Manufacturers & Technology Assn.
Labor unions welcomed the state's proposed rules in written public comments. "This is a solid step in the right direction," said Angie Wei, a lobbyist for the California Labor Federation.
But labor officials also pointed out that the Schwarzenegger administration is addressing workers' concerns only after issuing a half-dozen sets of regulations over the last two years that helped employers quickly save money.
Complaints about medical care for workers center on a process the insurance industry calls "utilization review," first practiced by health maintenance organizations in the 1980s.
The 2004 law cleared the way for insurers to send workers' comp patients' medical records and treatment plans to be reviewed by specialized doctors to ensure that they meet guidelines for proper care.
The doctors, who review the cases but do not examine patients, have the power to deny surgeries, procedures, drugs and medical equipment that aren't specifically outlined in treatment guidelines identified by the 2004 law.
Backers of the workers' comp changes argue that such "evidence-based medicine" is essential to protect injured workers from undergoing unnecessary medical treatments, cut costs and prevent fraud.
An independent study released this year credited the review process with generating about a quarter of the estimated $8 billion that employers saved from lower premiums compared with what they paid in 2003.
But critics, including the California Medical Assn., contend that the guidelines approved by the state are incomplete and too restrictive. They say the reviewers, often from out of state and unlicensed in California, tend to automatically say no to many common procedures.
What's more, they argue that the reviews sometimes are performed by doctors working outside their medical specialties or, worse, by nurses or insurance company claims adjusters.
But insurers have nothing to worry about if they follow the rules and quickly correct technical violations, regulator Nevans said.
"This whole reform is built around getting prompt, effective medical treatment to get the injured worker back to work as fast as possible," she said. "Improperly handled utilization review does not meet the goals of prompt, effective treatment."
Schwarzenegger spokesman Darrel Ng said, "The administration supports doing the right thing for injured workers."
The notion that employers care little about worker safety, or are prepared to sacrifice worker health in the pursuit of profit is a dangerous myth. Last week, Timothy Carroll was sentenced to 28 months in prison for falsifying asbestos air sampling results. Carrol was falsifying the reports to help Alex Salvagno and his father, Raul, who conducted illegal asbestos removal in up to 1,555 buildings throughout New York over a ten year period. They even paid homeless persons $4 an hour to remove the asbestos. The Salvagnos were found guilty of racketeering and conspiracy to violate environmental laws for rushing asbestos-abatement.
Carroll admitted he falsified air sample results and destroyed documents that revealed the illegal relationship between Analytical Laboratories of Albany, which Carroll owned, and AAR Contractors Inc. of Latham. Charges included mail fraud, federal Clean Air Act violations and filing false income tax returns.
In 2005, Alex Salvagno was sentenced to 25 years in prison and his father, Raul, to 19 years. The falsification of the asbestos tests conducted by Carroll was essential to the scam.
During the five-month trial, former employees testified the Salvagnos ordered them to crudely rip asbestos from buildings and falsify up to 75,000 laboratory samples. By working without even minimal safety precautions, the Salvagnos saved on labor costs. The scheme worked for so long because of the Salvagno-Carroll connection.
When the U.S. Environmental Protection Agency began investigating, agents discovered everything from asbestos fibers to chunks of asbestos left behind at job sites where AAR Contractors had performed work. In one case, investigators found asbestos dust on a box of lollipops given out at a bank, according to prosecutors.
Be careful out there. There are a lot of bad people around, and most of them probably aren't getting caught.
California state regulations are similar to our BSP’s and require the use of insulated gloves whenever an employee is placing strand on a pole that has non-insulated power lines until the strand is permanently attached, tensioned, grounded and bonded. While there may have been some confusion as to whether or not self-supporting cable should be treated the same as strand, the attached BSP revision clarifies that the company requires the wearing of insulated gloves when placing self-supporting cable, whether or not the California regulations also require their use. Always treat self-supporting cable the same as bare strand whenever the BSP’s require the use of insulated gloves for handling bare strand. The polyethylene sheath on the self-supporting cable is not a substitute for insulated gloves.
Our work is often dangerous. Please keep a lookout for electrical and other hazards. If you have any questions, check with your supervisor.
Finally, I ask each of you to remember the AT&T Safety Creed which has been a part of the Bell System since 1937:
Marvin Benson, a member of CWA Local 2100, was electrocuted while working in an aerial bucket attempting to place fiber optic cable near Baltimore-Washington International Airport. The accident sent electricity through the bucket and to the truck, where the tires caught fire and fuses blew with a second technician trapped inside.
Dave LeGrande, CWA safety and health director, said a third technician outside the truck yelled at the trapped man not to touch anything, and he managed to escape without injury once the electricity burned itself out.
District 2 Vice President Pete Catucci said Benson's death "is a terrible tragedy which must not be repeated. While we don't know precisely what caused it, we will be sitting down with the company to discuss a variety of safety and training issues."
Benson, 36, had worked for Verizon for about two years. In June, an IBEW member working for Verizon was killed in a similar accident in Rhode Island. In May, a CWA member in Elkhart, Ind., 35-year-old Brent Cheney, was electrocuted while working on the office mainframe trying to detect a customer's cable problem.
The Maryland incident is being investigated by the state's Occupational Safety and Health department, as well as by Verizon. Local 2100 Executive Vice President Mark Balsamo went to the site with company investigators and is monitoring their probe.
LeGrande's office recently surveyed locals about injury, fatality and near-miss incidents and is continuing to ask locals to report accidents and close calls to headquarters. A fact sheet is being prepared for all CWA technicians detailing the accidents and how to avoid safety hazards.
Nevertheless, we need to be aware of these cases and make sure that prosecutors across the country are aware of them when workers are killed on the job.
On August, 2005 28-year-old AT&T trainee Paul Charles Hurt was electrocuted while working on a joint pole — which combines power lines and phone lines -- near Lopez, California. An investigation found that he had not been wearing properly insulated safety gloves.
Earlier this week criminal charges were brought against the company, two misdemeanor charges alleging negligence and willful violation of a standard that led to Hurt's death.
The company faces up to about $1.5 million in fines and probation.
Most criminal prosecutions involving businesses claim an individual or individuals are responsible, not the entity, said Deputy District Attorney Steve von Dohlen.
In the case against AT&T, prosecutors believe the criminal charges recommended by the California division of the Occupational Safety and Health Administration fit the alleged crimes and that the company needs to address standards or practices.
"We feel that's an appropriate charge here because that was a serious incident -- serious because a man died," von Dohlen said.
Von Dohlen said the incident appeared to have been a failure by the company overall and not individual employees.
As in other cases where the company is charged with a crime instead of any individuals, it's hard to see what the point is. Clearly the fine can be higher than fines that result from typical OSHA citations, and then there's the stigma of being convicted of a crime. Otherwise....
AT&T may face probation that could require the company to change or adopt certain safety standards. If probation were violated, a judge could order additional fines against the company, up to the maximum of the original offense.
In 2005, Cal-OSHA recommended 49 criminal referrals to local prosecutors, with 11 of them being filed.
This was not the first time a court has convicted a company on criminal charges for the death of an employee. Last November, Far West Water and Sewer Company was convicted of negligent homicide and aggravated assault and fined $1.77 million. The president of the company was also found guilty by a jury of two counts of negligent homicide and two counts of endangerment, and sentenced to four years of supervised probation for one of the negligent homicide convictions and another four years for one of the aggravated-assault convictions. He was also fined $50,000 sentenced to teach 840 hours of safety classes.
In 2005, a Michigan judge found Lanzo Construction criminally responsible for the death of an employee in a trench collapse and put Lanzo "on probation." In that case, "probation" meant that the company could not receive any state government contracts until 2013.
As summer heats up, outdoor workers in California will continue to toil in temperatures that will rise to triple digits, leaving them vulnerable to heat-related ailments. After a spate of worker deaths last year, the state Division of Occupational Safety and Health has passed the first standards in the nation designed to protect outdoor workers from heat stress.
Under the new rules, which make emergency regulations set in 2005 permanent, employers must provide workers four cups of water per hour and access to shade for at least five minutes per shift. The standards also require that employers brief workers on preventing and identifying illnesses like heat stroke and heat exhaustion, as well as detailing an emergency plan if someone becomes ill.
