NCDOL fails to hold employers accountable for health, safety violations as workplace fatalities rise

Low penalties, lax enforcement, while hundreds of fatalities go without investigation, new report finds

RALEIGH (December 19, 2019) – The North Carolina Department of Labor is handing out low penalties, engaging in lax enforcement, and failing to investigate hundreds of fatality cases in the face of rising workplace deaths, according to a new report from the NC Justice Center.

Workplace fatalities have risen considerably in North Carolina, especially when compared to the national average. Since 2013, NCDOL has presided over a 48 percent increase in deaths on the job according to its own measure and a 63 percent increase according to the U.S. Bureau of Labor Statistics. Five years ago, North Carolina had a lower workplace death rate—the number of deaths per 100,000 workers—than the nation on average. Yet while the national average has basically remained steady since then, North Carolina’s workplace fatality rate has exploded—from 2.5 in 2013 to 3.8 in 2018. At the same time, the number of workplace incidents involving fatality or hospitalizations has grown from 115 to 146 since 2012.

Throughout this period, NCDOL has embraced the idea that workplace protections are best enforced through promoting voluntary compliance among employers—providing trainings, recognizing success—rather than aggressively using penalties and inspections to ensure employers follow workplace safety laws. Unfortunately, NCDOL’s voluntary compliance approach has failed to adequately protect workers, reduce the workplace fatality rate, or deter bad actors from placing their workers’ lives in danger on the job, according to the report.

“It’s clear that NCDOL’s hands-off approach to workplace protections are ineffective at preventing workplace deaths—penalties are too low, enforcement is too lax, and investigations are too few to deter bad actor employers from putting their workers’ lives at risk,” said Allan Freyer, Director of the NC Justice Center’s Workers’ Rights Project and author of the report. “If voluntary compliance were working as intended, we would expect to see North Carolina’s workplace fatality rate fall as overall enforcement does. But we don’t. Instead, we see weakening enforcement accompanied by rising workplace deaths, fatality rates above the national average, and a rapid increase in fatality incidents. NCDOL’s approach is simply inadequate to protect the lives of workers on the job.”

In the study, we examined 60,653 state workplace violations over the past decade and found a clear pattern of inadequate NCDOL efforts to fully protect workers in the face of rising workplace deaths. Specific findings include:

• NCDOL’s penalties are far too low to protect workers. The penalty system is designed to deter employers from putting their workers’ health and safety at risk. Yet, NCDOL routinely handed out exceptionally low penalties, even in the case of fatalities. In 2017, NCDOL penalized these violators an average of $4,177 compared to the national average of $16,481—almost 75 percent below the national average.
• Enforcement of violations is too lax. NCDOL has also pulled its punches when it comes to levying the toughest violation standards against bad actor companies—the Willful violation, which OSHA defines as a violation in which the employer either knowingly failed to comply with a legal requirement (purposeful disregard) or acted with plain indifference to employee safety. NCDOL has handed out far fewer Willful violations (46) than the national average (69) and has significantly scaled back these assessments in fatality-related cases since 2013—just 29 Willfuls remained after negotians and settlements. In fatality cases, NCDOL held the line in just four of the cases involving Willful violations. In effect, NCDOL backed off full enforcement in almost two-thirds of the cases where workplace fatalities resulted from Willful violations.
• Investigations are too few. In the absence of workplace inspections, workers remain at risk—no one discovers health and safety violations until too late, often only after a catastrophe results in death or severe injury. Unfortunately, NCDOL is conducting too few investigations to meet the rising need. With a staff of just 97 inspectors in 2018, it will take 108 years to inspect every work site in the state, leaving the vast number of the state’s workers unprotected every year. Additionally, NCDOL has conducted fewer investigations of workplace incidents that result in fatalities or catastrophes requiring hospitalization (FATCATs), despite a significant rise in these incidents. This is likely due to the NCDOL policy decision to not investigate FATCATs involving independent contractors. As a result, North Carolina saw a 900-percent increase in the number of fatality cases that did not receive an inspection.

“Workers’ lives have intrinsic value, and NCDOL is not adequately protecting those lives in North Carolina. Instead, the agency should take steps to levy higher penalties, regularly enforce the Willful violation, and conduct more investigations,” Freyer said. “This especially includes investigating incidents involving independent contractors for the improper misclassification of employees.”

The report makes several recommendations for strengthening NCDOL workplace enforcement, including:

• Inspect every work-related fatality reported to NCDOL by employers, regardless of size and industry hazard level.
• Enact higher penalties, especially in cases involving fatalities.
• Enforce the Willful violation to the maximum extent under the law.
• Hire more inspectors and conduct more frequent inspections.
• Conduct inspections of every workplace reporting FATCATs.
• Implement the same practices of federal OSHA of interviewing workers away from their workplace and employer to assure that workers do not feel intimidated to speak.
• Pursue a both/and approach to workplace protections that couples training and safety recognition with tougher standards, higher accountability, and aggressive enforcement.