Wyoming plans to use carrot, not stick, to reduce workplace deaths

Jan 28, 2012

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Wyoming has one of the highest rates of workplace fatalities in the nation. Recently, the state epidemiologist issued a report looking at why that’s the case and making recommendations about what should be done. Workers’ rights advocates are pushing for tougher penalties for companies that violate safety regulations. But for now, it seems the state plans to take a softer approach. Wyoming Public Radio’s Willow Belden reports.

WILLOW BELDEN: C.J. Moss was 26 years old when he died. It was the end of his week-long shift on an oil rig in Sublette County, and his boss asked him to do something perfectly straight-forward: clean a motor on the rig. But the motor had been damaged by a recent fire, which Moss’s supervisor didn’t tell him. When he went to clean it, he was electrocuted. His wife, Natalie, had to break the news to their four-year-old son.

NATALIE MOSS: I told him that daddy wasn’t coming home that night. And he said, “Yes he is; I remember, you told me dad’s coming home tonight.” … But how do you explain death to a four-year-old, really?

BELDEN: Natalie Moss says her husband had almost been killed at work once before, but he and his coworkers didn’t report safety problems.

MOSS: If you cost the rig money, people out there would make your life so miserable that you would end up quitting. Or the tool pusher would just straight up fire you. You did not report anything.

BELDEN: That’s not in the rule book, of course. Moss’s attorney, Kristeen Hand, says companies always have safety policies that sound great.

HAND: Every rig boss will tell you that every one of his crew members has the right to speak up and report a safety violation – even shut the rig down. Even the lowest man on the totem pole has the right to do that. Rig bosses will tell you that. They tell me that in deposition all the time. But what we have found is that that is not how things operate.

BELDEN: Hand says some companies even have incentives that discourage workers from reporting problems. For instance, if a crew can go a certain amount of time without having to slow down for a safety problem, everyone gets a bonus.

HAND: And it may give the appearance of wanting to motivate safety. But the reality is, unsafe conditions and actual injuries go unreported so that the crew can get their bonuses.

BELDEN: It’s not always clear who’s to blame for workplace accidents. But every ten days, someone dies on the job in Wyoming. Former State Epidemiologist Tim Ryan, who compiled the report on workplace safety for the governor, says Wyoming’s main industries – oil and gas – are inherently dangerous.

TIM RYAN: But I think underlying all of that is really the lack of a culture of safety. From my research in looking at the 17 years of data, in talking to hundreds of employees in several large, small and medium companies, safety is an afterthought.

BELDEN: So how do you fix that? Ryan recommended encouraging more courtesy inspections from OSHA, creating a state-wide database to track accidents, and encouraging industry and various state agencies to work together on creating better safety standards. Gov. Matt Mead latched onto two of the recommendations: tracking accidents, and doing more courtesy inspections. That’s where a company voluntarily invites OSHA to their facility, and OSHA helps them navigate the rules. Mead says the main problem is that OSHA is short staffed.

MATT MEAD: We’ve got 23,000 employers in Wyoming, and we’ve only got six people to do safety consultations or inspections.

BELDEN: As a result, it can take months before OSHA actually comes out to a work site. So the governor hopes to hire up to eight new employees, seven of which would do courtesy inspections. Workers’ rights advocates have been pushing for more OSHA employees for a long time. But they say courtesy visits are only part of what needs to be done. Kim Floyd heads the Wyoming AFL-CIO. He says OSHA needs more compliance inspectors too – so they can do surprise visits. And he says OSHA needs more teeth.

KIM FLOYD: If you’re out there as an employer and you have an inspection, if you are cited for anything, you have an opportunity to comply. … There’s no fine levied; you get your hand slapped and you’re back to work.

BELDEN: If you don’t come into compliance, you could face fines. But unless you’re a repeat offender or have willfully violated regulations, the penalty is no more than $7,000. Floyd says that’s not enough to deter big oil companies.  Lawsuits aren’t a deterrent either, because you can’t sue your employer, as long as they’ve paid into worker’s comp. Kristeen Hand, the lawyer for Natalie Moss, says that’s a problem.

HAND: In CJ’s case, the company was immune. I couldn’t sue them.

BELDEN: You can sue co-employees – if you can prove that they were acting willfully and wantonly.  That worked in the Moss case, because Hand was able to prove that her client’s supervisor knew about the safety hazard and ordered Moss to clean the motor anyway. But she says her firm has to turn away the vast majority of people who want representation for workplace accidents.

HAND: I don’t want to be heard to say that work comp is a bad system. It’s fabulous insurance for workers. The problem is I think you get a system, then, where companies get a pass for being negligent. Where’s the incentive to be reasonable when you can’t be held accountable in a court of law?

BELDEN: State lawmakers drafted legislation a few years ago that would have taken away companies’ immunity from lawsuits. But the oil and gas industries lobbied hard against it, and the bill failed. Lawmakers also turned down a bill that would have increased fines for safety infractions. Tim Ryan, who did the safety report for the governor, doesn’t think lawmakers are likely to change their stance. That’s why he didn’t even make legislative recommendations.

RYAN: Having seen the track record in the last three years was an indication to me that suggesting a bunch of legislative and regulatory fixes wasn’t every really going to come to fruition and was going to sort of go by the wayside.

BELDEN: Industry officials say new laws are the wrong solution anyway. John Robitaille is vice president of the Petroleum Association of Wyoming. He says many companies are voluntarily stepping up their safety efforts, for example, by doing more training with employees and subcontractors.

JOHN ROBITAILLE: What we’re attempting to do is get to a zero fatality level. And we’re turning every stone trying to figure out how to do that exactly.

BELDEN: Robitaille says the best fix is for companies to share ideas and take advantage of OSHA’s courtesy inspections.

JOHN ROBITAILLE: I don’t know that more regulation is required. I think it’s more of an education aspect.

BELDEN: The governor agrees. Mead says rather than beefing up enforcement, the state should give employers a chance to improve voluntarily. He admits a carrot approach won’t solve the problem overnight. But he insists it’s the way to start. For Wyoming Public Radio, I’m Willow Belden.