South Carolina’s Job Safety Program Fails, Prompting Union Action
South Carolina does such a poor job of enforcing worker safety laws, especially at job sites where large numbers of Black people labor, that a union wants the federal government to step in.
Citing the state Occupational Safety and Health Administration’s own data, the union says the state is failing workers generally, but especially Black employees.
The Occupational Safety and Health Act allows states to run their own OSHA program provided the state program is “at least as effective as” the federal OSHA program. That law also requires the federal OSHA budget to provide up to 50% of the costs of states running OSHA programs.
The same questions apply more broadly, because 21 states plus Puerto Rico run their own OSHA programs. When federal OSHA doesn’t adequately enforce the requirement that these states run effective programs, tens of millions of American workers will receive inferior protections at work.
In a petition sent to federal OSHA, the union requested that federal OSHA revoke South Carolina’s state plan “because the Plan has failed to maintain an effective enforcement program.”
The petition was filed Dec. 7 by the Union of Southern Service Workers (USSW), an affiliate of the Service Employees International Union (SEIU). The union held a rally to publicize the union’s petition.
The petition marked USSW’s latest challenge to the South Carolina OSHA. In April, USSW filed a civil rights complaint that accused the state agency of racial discrimination by failing to routinely inspect workplaces with disproportionately large numbers of Black employees.
Federal OSHA is failing to use data it collects on state plan operations to ensure the effectiveness of South Carolina.
What’s going on in South Carolina? What options does federal OSHA have if a state is not effectively running its worker safety program? Why does Congress even allow state OSHA programs? And what can be done to improve OSHA’s oversight over state OSHA programs?
The same questions apply more broadly, because 21 states plus Puerto Rico run their own OSHA programs. When federal OSHA doesn’t adequately enforce the requirement that these states run effective programs, tens of millions of American workers will receive inferior protections at work.
There are substantial disparities between the level of protection provided to workers by South Carolina OSHA compared to nearby states do and what federal OSHA does.
Federal OSHA officials know about the poor performance because they get detailed reports from South Carolina. Yet federal OSHA officials allowed disparities in enforcement to grow increasingly wide. The disparities are so wide now that the Palmetto state consistently fails to meet the requirements of the federal law or the federal regulations implementing that law.
South Carolina is one of the few states that initially failed to adopt OSHA’s 2021 Emergency Temporary Standard to protect heath care workers from COVID-19.
Later, OSHA issued emergency COVID vaccination and testing standards in 2021. They were ignored on orders of South Carolina Govern Harry McMaster who tweeted “Rest assured, we will fight them to the gates of hell to protect the liberty and livelihood of every South Carolinian.”
McMasters promise was realized when the U.S. Supreme Court overturned the standard.
The Problem in South Carolina
The USSW/SEIU petition was based on data that OSHA compiles for the agency’s recent Federal Annual Monitoring Evaluation Report (FAME) as well as other data that OSHA collects but does not include in the FAME.
OSHA writes the annual FAME reports to evaluate how state plans are performing compared to the federal program. The data in the South Carolina report revealed numerous significant deficiencies. The union used that data to compare the state’s OSHA’s performance with the federal OSHA program as well as comparing South Carolina to Virginia, North Carolina, and Tennessee.
The findings are compelling:
- South Carolina Has an Inadequate Enforcement Presence
Enforcement presence is the number of safety and health inspections conducted, as compared to the number of employer establishments in the state. South Carolina’s enforcement presence was 50 percent below the acceptable level set by federal OSHA. And, according to the union report, in 2022, SC OSHA’s enforcement presence “dropped to an abysmal 0.32%”.
- SC OSHA’s Penalty Levels Don’t Meet Federal Requirements
Serious safety violations recently carried weaker sanctions in South Carolina than required. The state’s average serious penalty is $2,019 for all private sector employers, falling well below the national average of $3,259.
On average state plan penalty levels are lower than federal OSHA. The state serious violation average is $2,372.
Oregon lags with an average penalty of just $604 — hardly “at least as effective” as federal OSHA by anyone’s definition. Maryland isn’t much better with an average penalty of $892.
(In Oregon’s defense, the state legislature just passed a number of measures that should significantly increase penalties to some of the highest in the nation. The new law will come into effect next year so we shall see how it works. Maryland should follow Oregon’s example.)
- South Carolina Conducts Too Few Inspections.
South Carolina conducted 287 inspections in 2022, or about 1.9 for every 1,000 establishments — a figure the union said is less than one-third the rate in the surrounding states of North Carolina, Tennessee, and Virginia, and far fewer than the national average.
The state failed to conduct on-site inspections in response to more than 378 formal complaints involving South Carolina workplaces.
- South Carolina Has Too Few Inspectors to Maintain an Effective Enforcement Program.
The number of South Carolina inspectors has been dwindling, South Carolina has admitted that it cannot conduct the expected number of inspections until it increases its staffing, yet its staffing levels have remained consistently below Federal benchmarks since 2017.
- SC OSHA Fails to protect worker rights.
The state OSHA doesn’t protect workers against retaliation. The program also fails to allow workers who file complaints to participate in the complaint process by using a designated “walkaround representative” during OSHA inspections and case closing conferences, which is where inspection findings are reviewed.
- South Carolina Fails to Issue Citations Under the State OSHA’s General Duty Clause for Heat, Violence and Other Hazards
Actually, it’s worse than that. The union’s search of OSHA data for South Carolina found no evidence of any General Duty Clause violations regarding any hazards in any industry for the last decade. This failure to employ the General Duty Clause leaves workers exposed to serious hazards for years.
- South Carolina Fails to Initiate Formal Inspections and Investigations in a Timely Manner.
OSHA is supposed to respond quickly to formal worker complaints, meaning those signed by workers. But OSHA also has the option of addressing complaints with a phone call or a fax to contact the employer about a complaint and simply ask them to fax (or these days e-mail) proof that no violation occurred or that the violation has been corrected.
When that evidence is not convincing or disputed by the complainant, OSHA is supposed to conduct a physical inspection.
The union analyzed the OSHA data and determined that South Carolina does too few on-site inspections and too many phone-fax investigations.
To protect workers, the union says OSHA needs to respond quickly to worker complaints. The union said documents show that South Carolina OSHA takes unreasonably long periods of time to respond to complaints.
- South Carolina OSHA Fails to Cite Employers for Workplace Health Hazards.
The state doesn’t focus its scarce resources on workplaces with the most hazards. It also fails to identify health hazard violations at the same rate as federal OSHA.
- South Carolina Frequently Vacates or Reclassifies Violations When Employers Contest Citations.
Employers always have a right to contest OSHA citations and OSHA may reduce or completely vacate the citations. But the union found that South Carolina vacates a far higher share of violations issued to private sector employers that contest the agency’s citations compared to North Carolina, Tennessee, and Virginia and to the national average for all state plans.
What if State OSHA Programs are not at least as effective?
The Occupational Safety and Health Act requires states to run programs that are “at least as effective as” (ALEA) the federal program, but the law does not define exactly what “at least as effective as” means. Disputes over what measures constitute ALEA remain fiercely fought to this day. The battles tend to be fought over whether Federal OSHA and the states are equal partners, or — as the law envisioned– whether the connection is more akin to a parent-child relationship.
ACTION BOX / What You Can Do About It
Tell the White House what you think using this online form.
Or call the White House switchboard at 202 456-1414.
Tell your representative or senators.
Call the U.S. House Committee on Education and the Workforce at 202-225-4527.
Call the Senate Health, Education, Labor and Pensions Committee at 202-224-5375
Some requirements are obvious: States must afford workers the same rights as the federal law provides and must designate a responsible agency to run the program. The states must have a whistleblower program to protect workers from employer retaliation. State plans also must cover public employees. (Public employees are not covered by federal OSHA.)
Another relatively clear requirement is that all state programs must adopt OSHA standards that are either identical or more effective that federal standards. Federal OSHA has a process for determining whether state standards are at least as effective.
But it gets fuzzier after that. How well funded does the state agency have to be? How many inspectors are required? How many inspections does it need to conduct? How is the inspection and enforcement process conducted? What penalty levels must states impose? Do the states need to participate in federal OSHA’s National Emphasis Programs?
OSHA has few practical tools to use when it determines that a plan — or even important parts of a state program — do not meet federal standards.
OSHA’s chief enforcement tool is the “death penalty” — withdrawal of approval of the state plan — for “failure to comply substantially with any provision of the plan” or where a state plan “consistently fails to provide effective enforcement of standards.” That leaves OSHA little flexibility to work with recalcitrant states.
In rare circumstances where OSHA decides to rescind all or part of a state OSHA program, the legal process is exceedingly burdensome and lengthy, making withdrawal an impractical threat in all but the most egregious circumstances.
Federal OSHA has never revoked a state OSHA plan, although it came close to revoking North Carolina’s plan after the 1991 Hamlet chicken processing plant fire that killed 25 workers trying to escape the inferno through locked emergency exit doors. North Carolina state OSHA had never inspected the plant in its 11 years of existence.
The Protecting America’s Workers Act, currently pending before Congress, would make it easier for OSHA to withdraw a state plan and provide the agency with more flexibility for sanctions it can take to correct underperforming states.
This article was adapted by David Cay Johnston from a longer article at Jordan Barab’s Confined Space blog.