May 2003
Language Barriers in the Workplace
While occupational fatalities are down for other demographic groups, Hispanic fatalities are on the rise.
By Cole A. Wist
There was an unwelcome side effect of the economic boom of the last decade. According to government data, nearly 7,000 Hispanic workers died on the job from 1992-2001.1 Many of these workers were from Mexico, could not read or understand English, and worked in dangerous industries. Most were poorly trained and not adequately supervised. Tragically, in search of their piece of the American dream, these workers paid the ultimate price.
This number of fatalities is by itself disturbing. The trend behind the number, however, is even more alarming — it constituted a 15.1-percent rise in occupational fatalities for Hispanic workers.2 Conversely, for the same time period, occupational fatality rates for non-Hispanic whites and blacks decreased by 15.4 percent.3 Why is this occurring? Is our system failing to properly protect these workers? Is there a language barrier crisis in the workplace? What can employers do to proactively address these issues?
Many experts consider the rise in Hispanic workplace deaths as simply a reflection of our history and economy. Throughout our nation’s history, the most recently arrived immigrant workers have filled, in larger proportion, the more dangerous jobs in our society -— construction, mining, and smelting, to name a few.
Today, the largest and fastest growing pool of immigrant workers is Hispanic. Therefore, it is understandable why Hispanics would be disproportionately exposed to workplace hazards. As to whether we are adequately addressing this growing crisis is another issue.
Many have challenged the federal government to address this problem, and the Department of Labor appears to have responded. In February 2003, Secretary Elaine Chao announced that her department will seek $13 million to promote and facilitate better training of workers who are faced with language barriers. It is anticipated that most of these efforts will be initially focused on the construction industry.
For those who doubt a training deficit for non-English-speaking workers, consider the following recent event. At a Florida construction site, workers accidentally broke a pump, which caused sewage to seep into a 23 ft.-deep manhole. Without taking precautions against the atmospheric hazards, Fernando Paramo, a Mexican immigrant, promptly climbed into the manhole to assess the situation. Understandably, he was overcome by fumes.
Fernando’s brother, Miguel, attempted a rescue by crawling down into the hole and tying a rope around Fernando to lift him to the surface. While Fernando was being lifted by other workers, Miguel drowned in the sewage. OSHA interviewed the crew, concluded that the employees had not been adequately trained regarding procedures for entering a confined space, and cited the employer for willful violations of OSHA regulations. The employer disputes these allegations and must now litigate OSHA’s claims.
Could such a tragedy have occurred on your work site? Do you have employees who cannot understand written or spoken English? Have you provided training to such employees in their own language? Have you taken steps to verify that the training you have given to your non-English-speaking employees has been received, understood, and is being followed and acted upon?
Employers can address this issue in a creative manner. For instance, in a recent case we handled, the workforce was primarily Filipino and spoke an obscure dialect. While our small client did not have non-English training materials available, it made arrangements to have a bilingual employee translate training and instructional information to fellow employees. During the investigation of a serious fire and related fatality, the company was able to avoid serious penalties by showing that the need for bilingual training had been recognized and addressed.
We recommend that all employers take steps to audit their training policies and procedures to ensure that basic safeguards are in place to address the needs of workers who possess minimal or no ability to understand written or spoken English.
Employee manuals, safety programs, and training materials should be understandable to all employees. To that end, additional trainers or translators may be needed to assist with basic safety and health training.
In addition, supervisors must be sensitized to this issue to help them preemptively identify and address language barrier workplace hazards.
With Secretary Chao’s new initiative, we expect that this issue will increasingly receive attention from safety and health regulators, as well as criminal prosecutors. Remember, it’s not really training if your employees don’t understand what you’re saying.
1 Source: USA Today analysis of Bureau of Labor Statistics Data.
2 Id.
3 Id.
Cole Wist is a partner in the Denver, Colo., office of Patton Boggs LP. The law firm’s website is located at www.pattonboggs.com.
Ownership Changes and Safety Training
Following a change in ownership, issues related to prior safety complaints may need to be addressed.
By Adele Abrams, Esq., CSMP
In today’s aggregates industry, new owners frequently purchase mines. Such corporate ownership changes may require miners to reapply for their existing jobs. A recent remand decision points to the issues that may arise when such miners made safety-related complaints prior to the mine’s acquisition. The most recent case is the remand decision in Secretary o/b/o Garcia v. Colorado Lava, Inc. (ALJ, March 2003).
Andrew Garcia was an employee of Mountain West Colorado Aggregates (MWCA) at the time that he reported defective brakes on his loader to the plant manager. After the manager ordered him to continue using the loader, the miner complained to MSHA, and an unwarrantable failure citation was issued, prompting an investigation of the manager under Section 110(c) of the Mine Act. It was undisputed that the MWCA manager was aware of Garcia’s protected activity.
The following year, the mine was purchased by Colorado Lava, and MWCA’s plant manager was asked to recommend which jobs should be eliminated and which employees were “weak.” Garcia was identified as a worker who “tried to stir up trouble…was a poor operator, abused equipment, and had filed union grievances.” However, the owner to whom the comments were made delegated hiring authority to a different individual, who had no knowledge of the MWCA manager’s views of Garcia.
Following the sale of the company to Colorado Lava, Garcia filled out an application for rehiring, along with the other MWCA workers, but he was one of only two workers not offered employment. At the initial hearing, the company’s hiring official testified that he only learned about Garcia’s previous complaint to MSHA two weeks after the decision was made not to rehire him.
The Commission found evidence supported the initial ALJ decision that Garcia engaged in protected activity when lodging a complaint to the plant manager and MSHA. It also found that adverse action was taken by Colorado Lava in failing to rehire Garcia.
The question on remand was whether MSHA had established its prima facie case that the adverse action was motivated in any part by the miner’s protected activity. The Commission found that the record evidence of disparate treatment was not fully considered by ALJ Weisberger. It directed the judge to consider all evidence tending to show improper motivation, including the purported disparate treatment.
On remand, ALJ Weisberger utilized the criteria established by the FMSHRC in Secretary on behalf of Chacon v. Phelps Dodge Corp, 3 FMSHRC 2508 (Commission 1981): whether there was (1) knowledge of the protected activity; (2) hostility or animus toward protected activity; (3) coincidence in time between the protected activity and the adverse activity; and (4) disparate treatment of the complainant.
In applying these factors to the Garcia case, the judge found credible the company’s testimony that no one with knowledge of the protected activity took part in the “adverse action” of failing to rehire Garcia, and that the individual who made the hiring decision had not manifested any animus toward Garcia.
The ALJ also found that the protected activity occurred in October 1999, while the adverse action occurred in June 2000 — more than seven months later — which did not support a sufficiently close coincidence in time to infer improper motivation. Based upon the findings of the Commission, the ALJ was constrained to find that it might be inferred that Garcia was the subject of disparate treatment.
To establish a causal link, the complaining miner is required to proffer evidence sufficient to raise an inference that the protected activity was the likely reason for the adverse action. Here, the ALJ concluded, any inference of discriminatory intent was diluted by the lack of knowledge of the protected activities, and lack of hostility or animus toward protected activity, by Colorado Lava’s hiring official, and there was not a sufficient time nexus between the MSHA complaint and the adverse employment action. Therefore, the complaint was dismissed because MSHA failed to establish, by a preponderance of evidence, that Colorado Lava’s action was motivated in any part by the miner’s protected activity.
Unwarrantable failure partially affirmed in slate case
In March 2003, Virginia Slate Company was back before ALJ Weisberger, after the Commission vacated and remanded the ALJ’s 2001 unwarrantable failure determinations and penalty assessments. On remand, the judge considered two unwarrantable failure allegations: one involving failure to provide berms, bumper-blocks, safety hooks or other impeding devices at a crusher hopper; and the other concerning failure to perform preshift inspections of mobile equipment as mandated by §56.14100. In vacating the initial findings, the Commission directed Judge Weisberger to consider whether the mine president knew or had reason to know of the violations, whether he was a “supervisor,” and whether he violated the standard of care required of supervisory personnel.
With respect to the berm citation, the judge agreed that a high degree of danger existed using a front-end loader near the hopper with no impeding devices. However, he also found the mine’s representative more credible than the inspector with respect to how long the violation had existed. Normally, an excavator was used for this purpose, and no berm would be required. The front-end loader had only been used on a temporary basis for a 10-minute period when the citation was issued, and its use was to be discontinued shortly. In addition, this practice had been previously inspected and those inspectors did not find fault with it, according to testimony that was not contradicted by MSHA. The judge found that, as president of the company, the official had some supervisory responsibilities but these were mitigated by the short period of time that the loader was in use. After weighing all factors, the ALJ ruled that the condition was hazardous and obvious, but there were significant mitigating factors that did not support a finding of “unwarrantable failure” by the mine operator. A $200 penalty was imposed.
The second unwarrantable failure order involved lack of seatbelts and inoperable horns on mobile equipment, which made it probable that a preshift examination had not been performed. No preshift reports were introduced into evidence, but the company president testified that the equipment operator had told him that the truck was working “OK.” The equipment operator testified that he had driven the truck for three weeks without a seat belt and had reported this condition to the mine foreman. However, the MSHA inspector testified that the mine’s foreman told him that, after the truck was delivered three weeks prior to the inspection, he did not check it for safety defects. ALJ Weisberger found that the foreman’s knowledge that the truck was not adequately inspected was imputed to the operator and that this supported the “unwarrantable failure” negligence classification and a $750 penalty. Total penalties in the case (which involved several other citations) were $1,850.
Adele L. Abrams is a Maryland attorney who represents mine operators and contractors nationwide in MSHA and OSHA litigation, and provides safety and health training and consultation services. For more information, write to safetylawyer@aol.com or call 301-595-3520.
MSHA’s Tall Order for Small Operations
Small Mines Office offers training and assistance to the aggregate producers who need it the most.
By Therese Dunphy
Last fall, the Mine Safety and Health Administration (MSHA) launched its Small Mines Office to help small mines — those with five or fewer employees — improve both safety and health training and regulatory compliance.
“For the last several years, the fatal accident rate at small mine operations has been more than double the rate for larger mines,” says Dave Lauriski, assistant secretary of labor for mine safety and health. “This new division will enable us to better focus our resources on reducing these accident and injury rates.”
Kevin Burns, a 15-year veteran of MSHA and former director of safety and health services for the National Stone Association, serves as director of the division. He attributes the higher incident rates at small mines to a combination of factors, including training difficulties and the use of older equipment, which may lead to heavier maintenance routines.
Understanding these distinctions between large vs. small mines and sand and gravel vs. crushed stone operations is key to providing the types of task specific training materials necessary for the success of the office, he says.
As Figure 1 illustrates, MSHA has analyzed data regarding fatal accidents by equipment type for small and large mines. The statistics show that many more accidents in small mines involve front-end loaders, tractors/scrapers, and crushers than in large mines. (During the same period, accidents attributed to falls accounted for an additional eight fatalities at small mines.)
“At this point, we’ve done the easy part of the analysis,” says Burns. “Now we need to take a look at the accident reports for all the front-end loaders, for example, and start to identify trends and best practices and present this information to small mine operators in order to help prevent future accidents.”
“We need to be able to assist these small mines in terms of their compliance with our regulations,” adds Lauriski. “We can do that through the resources of providing materials such as template training plans or, perhaps, some actual course materials that they can use in their everyday activities at the mine.”
Working with producers
Since the formation of the Small Mines Office last fall, Burns says that his group has focused on recruiting volunteers, training, compiling pilot programs, and conducting field tests. At the beginning of the year, field representatives began to visit operations. In the first three months of the year, they visited more than 420 of the 6,500 small operations in the United States.
Burns says that field representatives call producers and schedule a two- to four-hour visit. During the site visit, the representative presents the producer with a “starter kit” that includes Part 46 training templates, HazCom training templates, and other information for compliance assistance resources. The representative also talks to the producer about workplace examinations and provides an examination checklist.
After an initial visit, the same field representative follows up the visit with phone calls and sends the producer training and compliance assistance materials on a regular basis.
“The idea is to build some trust so they have somebody they can turn to with questions,” says Burns. “In time, we want to get them in working groups — either through Holmes Safety Association chapters or some other organization — where they can meet on a regular basis, get feedback, and create a broader circle of people they can turn to for help.”
Essentially, Burns says, the field representatives are there to help build the structure of a health and safety program by providing templates and information via email, fax, or regular mail that the producer can pick up and immediately use to train their staff.
“They’re busy people. We’re trying to fill a void and give them materials so they can go out and use them. Naturally, they have to be relevant to that type of operation. That’s one of our challenges: putting together materials that fit a small sand and gravel operation vs. a large crushed stone operation because they have different needs,” says Burns. “We’re trying to facilitate their intent to do a good job.”
“We use the term compliance assistance, but I think it’s much broader than that,” notes Lauriski. “If you look at the Small Mines Office…that’s really their function — to assist these small mine operators, not only with compliance issues, but general safety systems as well.”
Early reviews of the program are positive. “I think it’s just a great idea for someone to take care of the small mines,” says Sally Karns, safety director for IA Construction Corp. “It takes a lot of burden off of me.”
In February, field representatives shared the starter kits with supervisors at IA Construction Corp.’s annual refresher training. “I heard comments from them like ‘This is awesome. I wish I’d had this a long time ago,’” says Karns. “(The field representatives) are like walking dictionaries when it comes to MSHA rules. Our guys were asking all kinds of questions, and they were answering them one right after another. It was great.”
Brenda Heiser, who oversees safety operations for family-owned Heiser Sand & Gravel Corp., agrees that the program has been a move in the right direction. “Small mines do not have the resources the larger companies have, therefore we are behind the eight ball in keeping up with standards,” she says. “We don’t have the manpower, so we are at a loss as to how to do it. Being a family business, it puts us in a hardship.”
Evaluating regulations
Another area where the Small Mines Office may provide some relief is on the regulatory front. One of its stated goals is to “identify regulations that create an undue burden on small mine operators and develop alternative ways to provide the same level of protection.” According to Lauriski, that goal sprung from visits he conducted with producers across the United States during his first year as assistant secretary.
“I was at a small bluestone quarry in northeastern Pennsylvania where I was visiting with the owner/operator/employee of the operation,” says Lauriski. “He said, ‘I got cited because I didn’t have a stretcher. Well, if I had a stretcher, I couldn’t use it anyway.’ Are there alternatives (to such a rule) that may make sense? Those are the kind of things we’re looking at.”
Lauriski points out that while MSHA has no desire to diminish the safety of an operation because of its size, there should be alternatives to the way current regulations apply. As a result, the Small Mines Office is being asked to identify regulations that create a hardship or where a one- or two-person operation may not be able to comply.
In addition to evaluating existing regulations, Lauriski says that new regulations are being promulgated with small producers in mind: “We tried to make (HazCom) as user friendly as we possibly could, but beyond that, what we’ve done is try to provide the compliance assistance materials that all operations can use. For example, we posted on our website the HazCom compliance assistance template that any operator can download, fill out, and have as their program at their particular site.”
But while the agency is looking at ways to improve health and safety at small operations, Lauriski denies allegations that it discriminates against large operations.
“My response to that is that the Mine Act doesn’t give us discretion to discriminate based upon size of an operation,” he says. “The Mine Act is very specific that if we see a violation or we believe that a violation existed, we’re to cite that violation. There can be do disparity in terms of whether or not we can walk away from violations that we observe at a small operation vs. a large operation. That’s not the function of this Small Mines Office. This office is solely there to provide compliance assistance.”
Looking toward the future
During the first quarter of 2003, there were six fatalities for the metal/non-metal mining sector. That is a significant decrease compared to the nine fatalities during the same period in 2002.
“I think that there’s a renewed momentum out there that’s building in this industry, and that people are beginning to get focused on the issue of good performance,” says Lauriski. “I hope that we’re a catalyst to see that that happens, but it doesn’t happen because of MSHA. MSHA may be part of the process, but it’s a cooperative effort between all concerned.”
While he says that he can’t point to a specific reason for the decrease, he — like producers — hopes to see the trend continue.
Developing a better understanding of human behavior will continue to be a goal of the agency, says Lauriski. “That’s one thing that this agency is working hard toward understanding — the human factor as it pertains to the kinds of performance that we see or would like to see in order to ensure safe and healthy performance.
“Each case is different. There’s not a canned kind of problem that would appear at a small mine versus a large mine. It’s a case-by-case issue on how each individual reacts to a certain circumstance,” he adds. “We want to be better equipped as an agency to understand that across the board — not just with the small mine operator. (We want to know) not only why somebody took an action that caused an adverse consequence, buy why somebody took an action that caused a positive consequence. That’s a part of the retooling that we’re going through with our health and safety specialists in general, across all the MSHA boundaries.”
For the immediate future, funding for the Small Mines Office is its main priority. In President Bush’s FY 2004 budget, $2.4 million was requested to hire 21 full-time employees. Those employees will include 17 field representatives, two supervisors, and two administrators in the Washington, D.C. office.
“The Small Mines Office is not yet a funded division within the Education Policy Department,” says Lauriski. “We’ve borrowed volunteers from each of the program areas to help us get this program up and running until we can get it fully funded within our budget.
“That’s certainly the most pressing issue for us — to get this office funded and to get permanent employees selected to fill the positions that we’ll have available.”
Therese Dunphy is editorial director for Aggregates Manager.