When her grandson died in a 2012 construction accident, Mary Jane Collins began pushing state lawmakers to do more to prevent job-related fatalities.
Regulators fined the company that employed her 20-year-old grandson, Brett, but the firm negotiated the penalties to half of what the Wyoming Occupational Safety and Health Administration had proposed.
Those fines were based on the federal penalties for serious safety violations. Set in 1990, they hadn’t been adjusted until last year when Congress hiked the maximum fines 78 percent to adjust for inflation. State lawmakers adopted that increase earlier this year. It goes into effect in February.
Wyoming is perpetually ranked as one of the worst states for workplace safety. And while some hope the increase in fines will address that poor record, others contend the state’s small population and high-risk industries are to blame. Incentives, not penalties, will increase the state’s health and safety record, they maintain.
A state report found 34 people died on the job in 2014. Regulators have not released data for last year.
Lawmakers have debated whether to raise fines many times in the recent past, most memorably in a failed 2014 bill that began with the Collins family. That bill would have set a mandatory, nonnegotiable fine for violations that resulted in death. But, despite Wyoming’s workplace safety record, the effort to increase penalties never gained traction.
This year, Wyoming had no choice. Though the state runs its own OSHA division, its rules have to comply with federal regulations or surpass them.
Rep. Mary Throne, D-Cheyenne, favored the 2014 bill. Though the issue of workplace deaths requires further attention, the fine hike is a good move for Wyoming, she said.
“(If companies) are not going to have things in place to protect their workers, then they are at a competitive advantage to the company next door that is spending the money,” she said.
For Throne, giving offenders a pass is an economic offense to companies that follow safety rules.
There are two ways the state can address safety — one is assisting companies to reach compliance, the other is enforcing penalties when companies violate the rules, she said.
“(Companies) need to be given incentives to participate without the fear of enforcement. I’m a huge believer in that,” Throne said. “But, you can’t ignore the enforcement side. I’ve been saying for years, you have to have carrots and sticks.”
Incentives over penalties
Industry and small business groups say they have made peace with the fine increase, but doubt it will affect Wyoming’s safety record.
“It is a big increase, but considering it had been so long since they had been increased, what can you say? It makes sense,” said Bonnie Cannon, government and communications director for the Wyoming Contractors Association.
The most important thing in this situation was keeping regulation local, said Josh Carnahan, president of the Wyoming Construction Coalition.
“We don’t like the fine increases,” he said. “They’ve been the same for 25 years. It’s a huge amount to pay, but we’re rather be paying it to our state OSHA folks and working with them and trying to improve workplace safety.”
For Carnahan, the higher fines won’t increase worker safety. The income from these violations go to Wyoming schools, not increased safety training, he noted.
Moreover, no company wants its workers to get injured. If penalties alone could keep serious injury from happening, there would already be fewer incidents, he said.
The Collins family views the issue differently. Lawmakers who oppose higher fines and blanket penalties argue large fines disproportionately hurt small business, Mary Jane Collins said.
“They don’t want to do anything that would hurt the small businessman’s bottom line. In essence it’s a somewhat skewed way of looking at a penalty that results in a fatality,” she said.
When OSHA originally fined COP Construction, the company that employed Collins’ grandson Brett, the penalty was $13,860.
The small business protested and negotiations dragged on for over a year. The fine was cut to $6,773 — mostly for inadequate safety training. The company was also penalized because Brett was in a trench while an excavator was working.
“I honestly think that when we began this campaign (after Brett’s death), no one had ever come forward and spoken about the inequality of the process,” Collins said. “And we did open some eyes in those respects.”
State regulators have tried to address Wyoming’s safety record, but there is only so much that OSHA is responsible for, said John Ysebaert, the Department of Workforce Services’ standards and compliance administrator who oversees the OSHA division.
“Let’s just look at fatalities. About 25 percent of the fatalities (in Wyoming) OSHA has jurisdiction over,” he said. “Which means our rules, our emphasis and our ability to reach out and work with those employers is about 25 percent of them.”
Most of Wyoming’s workplace deaths don’t happen in the sectors that OSHA has control over. They occur in the transportation industry: hauling materials and driving Wyoming’s highways. Addressing OSHA fines or OSHA rules is a short-sighted approach to the state’s safety record, he said.
As far as negotiating penalties, OSHA does take a business’ size into account. But that is only one factor, Ysebaert said.
A company’s safety record both in and out of state, the frequency of violations in a particular company and the degree to which they have invested in extra safety measures are all part of negotiating fines as well as setting a company’s safety rating.
Companies currently owe OSHA $444,716 in back fines for safety violations dating back to 2009.
Though fines have their place, the division’s leaders believes better use of prevention efforts will help increase worker safety in the industries they regulate.
Wyoming’s OSHA is also utilizing a new division that’s sole purpose is to guide companies to greater safety without the fear of penalization.
The Workers’ Compensation Safety and Risk Unit will do on-site consultations for business on potential hazards and the violations they could face.
For the grandmother of Brett Collins, the family has given up on pushing for a minimum penalty in cases that resulted in death.
“I understand both sides,” Collins said. “I know our OSHA department in the state of Wyoming is overworked. I think [companies] probably just wear them down … I understand that, but I think sticking to your guns and following through with higher penalties will eventually make a difference.”
For now, she hopes the fine increase will continue the conversation.