STATEMENT OF JOHN L. HENSHAW
ASSISTANT SECRETARY OF LABOR FOR
OCCUPATIONAL SAFETY AND HEALTH
BEFORE THE
SUBCOMMITTEE ON EMPLOYMENT, SAFETY AND TRAINING
COMMITTEE ON HEALTH, EDUCATION, LABOR AND PENSIONS
UNITED STATES SENATE

FEBRUARY 27, 2002

Mr. Chairman, Members of the Subcommittee:

Thank you for this opportunity to testify about the Occupational Safety and Health Administration's (OSHA) efforts to protect immigrant workers. As you know, Mr. Chairman, the Occupational Safety and Health Act of 1970 (OSH Act) charges OSHA with the responsibility to protect all working men and women in this Nation.

I understand the Subcommittee is concerned that immigrants, and particularly Hispanic immigrants, face a greater risk of occupational injury or death than other populations. The fatality rate among Hispanic or Latino workers troubles Secretary Chao deeply and she is concerned about their rate of workplace injury. An immigrant herself, the Secretary is determined to tackle this issue head-on and has made outreach to immigrant and non-English speaking workers in the United States a priority during her tenure at the Department of Labor. Secretary Chao has directed DOL agencies to make unprecedented efforts to ensure that the Department's broad range of employment-related services -- including workplace and mining health and safety training and information, compliance assistance, enforcement of wage and hour laws, pension and retirement information, and employment training -- reach immigrant and non-English speaking workers.

Perhaps a good way for me to begin this hearing is to clarify the terms we will be using today. Neither OSHA nor the Bureau of Labor Statistics (BLS) collects data using the term "immigrant". BLS uses the terms "Hispanic or Latino" and "Foreign-born" workers. The data on foreign-born workers includes all those who were born in other countries. The vast majority of foreign-born individuals are immigrants. (Also included in this group are children born to U.S. citizens while they were overseas, including children of U.S. military personnel.) The data on Hispanic or Latino workers includes both native- and foreign-born workers. Therefore, as you can see, these categories overlap.

I am very pleased to report that there has been a significant improvement in safety and health conditions in America. For example, from 1992 to 2000, the overall injury/illness incidence rate dropped by 31 percent. Furthermore, the number of fatal workplace injuries declined by 2% from 1999 to 2000, while overall employment increased that year. However, the BLS report on fatalities for the year 2000 shows that 815 Hispanic or Latino workers, including 494 foreign-born Hispanic or Latino workers, died as a result of job-related injuries -- an 11.6% increase from the previous year.

Hispanics or Latinos accounted for a disproportionate number of workplace fatalities in 2000, 13.8 percent, compared with their proportion of employment, which was 10.7 percent. This appears to be largely due to the fact that Hispanics or Latinos are disproportionately employed in the more dangerous industries. For example, the construction industry accounts for about 7 percent of all employment, but 20 percent of fatalities. Hispanics or Latinos comprise almost 15 percent of construction employment, well above their representation in the workforce overall.

Although we have made progress, we believe that a single death is one too many, and OSHA will be at the forefront of renewed efforts to significantly reduce the number of fatal workplace injuries. This Administration will use the entire complement of tools provided by the OSH Act to address workplace hazards, including enforcement, training, information, and compliance assistance.

Recognizing that non-English speaking workers -- the largest group of which are Hispanic or Latino -- may require special efforts to protect them, the Agency began addressing this issue a few years ago by translating many publications into Spanish. More recently, after reviewing data concerning the increasing Hispanic or Latino fatalities, OSHA responded by developing an even stronger emphasis on this worker population by:

• Establishing an Hispanic Workers Task Force
• Creating an 800 number accessible to Spanish -- speaking individuals
• Initiating a national clearinghouse for training programs in Spanish (includes videos, written publications and other training materials)
• Creating a Spanish-language website for employees and employers
• Compiling a list of fluent Spanish speaking employees in Federal OSHA and State Plan States and OSHA-funded, on-site consultation agencies (119 Federal, 38 state and 22 consultation)
• Strengthening OSHA offices' contacts with police and emergency responders to ensure that OSHA receives referrals when an injury is work-related

I will provide details on these and other Agency initiatives in my testimony, today.

Fatality Investigation Process

In FY 2001, Federal OSHA conducted more than 35,000 inspections. Approximately three percent of these inspections were fatality investigations. As I will explain later, BLS and OSHA collect somewhat different demographic data on workplace injuries and fatalities, which makes it impossible to determine exactly how many OSHA investigations were related to immigrant worker injuries.

Except for reports of imminent danger, fatality investigations are the agency's highest enforcement priority. OSHA's practice is to investigate all occupational fatalities except those clearly not covered by the OSH Act, such as fatalities involving self-employed individuals or those resulting from working conditions regulated by another Federal agency. All employers covered by the OSH Act must report to OSHA, within eight hours, work-related accidents that result in fatalities or hospitalization of three or more employees. We recognize that employers who hire undocumented workers may be afraid to report workplace deaths due to possible legal repercussions from their hiring practices. OSHA, however, issues citations against employers who fail to report worker deaths or multiple hospitalizations. In FY 2001, Federal OSHA issued 138 citations and proposed $262,525 in penalties for employers' failure to report such incidents.

In responding to immigrant worker deaths, the Agency often encounters a difficult situation because sometimes workers are afraid to speak out about unsafe or unhealthful conditions for fear of being deported. OSHA routinely pledges to keep the identity of informants confidential. In addition, OSHA informs all workers of their rights under the OSH law, including the whistleblower protection provisions under section 11(c), which forbids employers from discriminating against or discharging workers for making safety and health complaints under the OSH Act.

OSHA uses other sources to attempt to identify all workplace fatalities, including those that employers fail to report. For example, our area offices use local radio, TV and newspaper media reports of workplace accidents to learn of fatalities. We also receive referrals from local fire departments, police departments or other Federal and state agencies that may be investigating the workplace pursuant to other statutes. In the past, OSHA regional and field offices have entered into agreements with local law enforcement authorities and emergency response services for referral of any workplace injuries or fatalities to OSHA. As I mentioned earlier, I have directed the field offices to renew these agreements with the respective local organizations.

OSHA does not collect any data during enforcement actions to indicate either the employee's citizenship status or ethnicity. OSHA fatality and other investigations focus on workplace safety and health hazards that gave rise to the accident in question. Although this results in a non-discriminatory enforcement policy -- one that protects all workers -- it does not allow us to track the number and type of injuries, illnesses and fatalities suffered by immigrant workers. However, we propose to change the Accident Investigation Summary Form (OSHA 170) to include several questions about ethnicity and language capabilities. I believe collecting this data will help us determine if there is a nexus between language, cultural barriers and employee injuries. In addition, this information will enable the Agency to evaluate its outreach programs and determine future program/outreach needs.

Another issue for immigrant workers is the number of deaths due to workplace assaults and acts of violence. It is important to note that OSHA is not the primary investigator for assaults and other violent acts at the workplace, which resulted in the deaths of 129 Hispanic workers in 2000. Because these acts are considered criminal, local law enforcement agencies have the primary role in investigating these fatalities.

Even so, the Agency is addressing violence in the workplace by issuing guidelines that inform employers of the best practices used to safeguard employees and contain suggestions by law enforcement personnel on safeguarding the workplace. Many immigrant workers are employed in the industries discussed in these guidelines, such as the "Guidelines for Preventing Workplace Violence For Health Care Workers," "Recommendations for Workplace Violence Prevention Programs in Late Night Retail Establishments," and an OSHA fact sheet for taxi drivers. Our goal is to prevent these tragedies from occurring by assisting employers to identify and reduce the risks of workplace violence.

Targeted Investigations

Fatalities are not the only concern for OSHA. OSHA's statutory mandate is to prevent workplace accidents and minimize occupational injuries and illnesses. To leverage our resources, we have developed an inspection program that targets the most hazardous worksites. For many years OSHA relied largely on BLS's annual injury/illness survey data to target its inspections. Although these data identified the most dangerous industries, they did not allow OSHA to specifically identify the most dangerous workplaces. In 1996, to complement its use of BLS data, OSHA launched a site-specific targeting program that surveys 80,000 general industry employers each year and uses the resulting data to identify those with higher-than-average lost workday injury and illness rates. These high-injury worksites are then targeted for inspection. OSHA sends letters to employers with rates that are double the national average, encouraging them to seek consultation assistance to improve their workplace safety and health conditions.

The site-specific program allows OSHA to address the non-construction industries and workplaces where the highest rates of lost workday cases due to injury and illness occur. In many cases, these are the same industries that employ a large number of immigrant workers, such as meat and poultry processing plants. OSHA will increase its total inspections in FY 2002, conducting more than 36,000 Federal inspections and focus enforcement on high-risk jobs.

Of course, there are still some dangerous worksites that are difficult to identify, particularly in the construction industry, where many small employers may work on a site for a few hours and then move to another location. To identify these sites, OSHA is adding construction employers to its site-specific survey and will upgrade its management information system to collect and disseminate additional data on this industry.

OSHA also relies on Local Emphasis Programs (LEP) at area and regional levels to target smaller and more hazardous industries and employers that may have a large immigrant workforce. For example, in Florida, many Hispanic workers are employed in the construction trades. Responding to an increasing number of construction fatalities in South Florida, OSHA developed the Construction Accident Reduction Emphasis (CARE) program in March 1999. OSHA also implemented local emphasis programs in this area, focusing on preventing falls and overhead power line accidents. OSHA plans to share all aspects of these local emphasis programs with our staff, through its new Hispanic Task Force formed as part of the Department of Labor's initiatives to assist immigrant workers.

OSHA Initiatives

In August 2001, in response to the Secretary's directive, OSHA established a Task Force to assess its outreach to Hispanic workers and reduce the number of deaths among Hispanic workers in this country. Headed by OSHA's Regional Administrator in Dallas and comprised of representatives from the National office, local OSHA offices, and state OSHA programs, the task force is actively pursuing creative solutions to the immigrant worker problems.

We plan to hold a best practices conference by the fall of 2002 so employers can share information about those practices that have worked to reduce injuries and illnesses for non-English speaking employees. The Task Force also is establishing a national clearinghouse to catalogue and disseminate all videos, written publications and other training materials that have been translated into Spanish.

A number of OSHA employees in local offices are bilingual and they help Spanish-speaking and other non-English-speaking workers access OSHA's outreach resources, complaint and other services. The Agency now has a list of both Federal and State OSHA employees who are fluent in Spanish. I plan to expand that list to include other languages. OSHA's toll-free, 800 number, which is used to report emergencies to the agency, is now available in Spanish. OSHA is also seeking to employ staff that speaks languages other than Spanish.

Safety and health training grants are another tool OSHA will use to address the unique problems of non-English-speaking workers. In its FY 2003 budget, the Agency proposes to change the focus of its training grant program. Workplaces have changed significantly, and are employing an increasing number of workers from a myriad of cultures with different languages, literacy and educational levels. OSHA will provide grants to non-profit organizations and professional organizations, colleges, universities and community colleges as well as faith-based and community-based organizations. Grants will enable these groups to establish programs to train employees and small business employers in selected occupational safety and health topics; programs that can continue after the grant has ended. Materials posted on the web will have broad applicability and allow for easy access and training at the convenience of both employers and employees. Among other issues, our training grants will address workplace safety issues specific to Hispanic and other non-English speaking workers.

OSHA's outreach to the Hispanic community is not only found at the National level, but is also being done in individual regions across the nation. Several of OSHA's regions have developed programs specific to their regional needs. In Region II, which includes New York and New Jersey, OSHA has worked closely with churches and community organizations representing immigrants. For example, in Central New Jersey, OSHA has worked with the Puerto Rican Congress, attending its annual conference and providing literature and information about the Agency. Also, in New Jersey, OSHA has participated in an alliance begun in 1995 between the Archdiocese of Newark, DOL's Wage and Hour Division and Union of Needletrades, Industrial, and Textile Employees (UNITE) to address the pay/benefits and health and safety conditions faced by workers in the apparel trades. OSHA also contributed material to curriculum developed and presented to every middle and high school student in the Newark, N.J. Archdiocese.

In addition to the Local Emphasis Programs that I mentioned earlier, we have distributed in Florida a variety of educational tools written in Spanish, including a poster depicting the four major construction hazards, a packet card explaining the dangers of working with overhead power lines, and a pamphlet on ways to eliminate excavation hazards. OSHA teamed with Florida's consultation agency, which provides free safety and health advice to smaller businesses, to offer two ten-hour construction classes in the Fort Lauderdale area. OSHA met with various organizations of Hispanic workers to emphasize the extremely high number of construction fatalities in southern Florida. The results have been impressive. Between 1998 and 2000, the number of falls decreased by one-third, and fatalities caused by contact with overhead power lines dropped 60% during that period.

In Fort Worth, OSHA has provided a 10-hour course on construction safety, conducted in Spanish, and has developed a movable workplace safety billboard in Spanish, which is being displayed throughout the area. Our Fort Worth office also worked with the Hispanic Chamber of Commerce to coordinate courses in Spanish for a safety seminar. OSHA's Houston-North office uses Spanish-speaking compliance officers to interpret employee complaints and to interact with Hispanic workers, particularly on construction inspections. The Dallas office has worked with the Mexican consulate to train Hispanic workers, conducting 8-hour seminars on the leading causes of construction fatalities for Hispanic contractors and their subcontractors.

OSHA Region VII has translated the Fall Protection Pocket Guide and other safety cards into Spanish and maintains a library of training videos in Spanish addressing hazards such as lead exposure, bloodborne diseases, and lockout/tagout. OSHA's Region IX in the West maintains an 800 number complaint and technical assistance line that provides information in Spanish, Korean and Tagalog.

This is a sample of the outreach, education and training programs for immigrant workers conducted by Federal OSHA. OSHA's Hispanic Task Force is compiling the information on the programs discussed above and other programs developed by our regional and area offices so OSHA field offices can share information and talk to one another about the best way to implement the program and to eliminate barriers to success. This sharing eliminates redundancy and enables OSHA's regions to learn from one another, and collaborate and coordinate programs for immigrant workers while tailoring programs to the specific needs of their geographical area. This sharing can only strengthen our work nationwide.

The Hispanic Task Force is also developing a clearinghouse for Spanish safety and health training materials developed by others. While these materials are not endorsed by the Agency, a list will be available to employers on the OSHA Web site. This will help employers find materials that will help them train and communicate with their Spanish-speaking workers.

In addition to our national and regional programs, there are 26 states that operate their own Occupational Safety and Health programs. Many of them are reaching out to the Hispanic and foreign-born population, too. For example, California, North Carolina, Oregon and Washington, have produced materials designed for agricultural workers whose primary language is Spanish. Each of these states maintains a staff of bilingual employees. New Jersey's on-site consultation program has staffers who can provide the service in Spanish.

On Labor Day, Secretary Chao noted that we could do better in protecting Hispanic workers by reaching out and educating them and their families about safety and health. Of course, not all Latino and Hispanic employees are immigrant workers, but they are the largest single group of immigrant employees. As Secretary Chao has said, immigrants are the dreamers who come to America for a new start and a brighter future. We have a responsibility to protect these individuals from on-the-job dangers. I can assure you, Mr. Chairman, OSHA will continue to enhance our programs and use all of the tools provided by law to protect immigrant workers and all other employees in this Nation.