Episode 205: The Great Neoliberal Burden Shift (Part II) — How Corporate America Offset Liability Onto Workers
Citations Needed | July 10, 2024 | Transcript
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Intro: This is Citations Needed with Nima Shirazi and Adam Johnson.
Nima Shirazi: Welcome to Citations Needed, a podcast on the media, power, PR, and the history of bullshit. I am Nima Shirazi.
Adam: I’m Adam Johnson.
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Nima: “How Railroaders Are Killed; Train Crews Grow Careless,” read a 1906 syndicated article. “There is a kind of personality who is accident-prone,” reported the Kansas City Star in 1944. Amazon’s safety programs are “designed to keep its nearly one million warehouse workers worldwide fit and limber,” claimed the Seattle Times in 2021.
Adam: For well over a century, it’s been standard practice for corporations, and the media more generally — echoing these “information campaigns” — to skirt, defy, or prevent regulations by shifting the burdens of protection and wellness onto relatively powerless workers. Just as corporations have historically shifted blame onto “consumers,” as we discussed in Episode 204 last week, so too have they shifted blame, and punishment, onto their workers, at great social cost but much private profit.
Nima: Of course, workers anywhere must bear some level of personal responsibility in matters of their own health and safety. But, as regulations have threatened their bottom lines, industries from railroads to retail, bolstered by a compliant US media, have seized upon this notion in order to render their workers the ones who bear ultimate responsibility for whether they’re healthy or sick, safe or injured, and in the most extreme cases, whether they live or die.
Adam: This is the second episode in our two-part series on what we’re calling “the Great Neoliberal Burden Shift.” Last week, we discussed how this burden shift harms consumers. And today, we’ll examine this anti-regulatory PR strategy, looking at the past and present of corporate deflection and responsibility, how media enables this subtle but effective practice, and discuss how media campaigns and media coverage have let us internalize the pro-corporate effort to offload responsibility for workplace health and safety from the bosses onto the worker.
Nima: Later on the show, we’ll speak with Anastasia Christman, Senior Policy Analyst at the National Employment Law Project.
[Begin clip]
Anastasia Christman: The way that the law is written about workplace safety, there are sort of two cardinal rules, two base rules in the Occupational Safety and Health Act, and one of them says that the employer shall furnish a place of employment that’s free of hazards for serious illness or death, and then workers, employees shall comply with the rules in the law. So, it’s two “shalls.” They’re mandatory, and those are the responsibilities of the two parties that were laid out in law. And obviously, because the employer has much more control over how the workplace is set up and the kinds of equipment that are used and the processes that are used, their responsibility is more heavily weighted, and they don’t like that.
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Adam: This episode was done in collaboration with Workday Magazine, which can be found at workdaymagazine.org. So, we are grateful for their contribution. So last week, we discussed the ways in which the neoliberal burden shift impacted everyday people, individuals, what we call for the purposes of the show, the consumer, the person who consumes a product with our guest, Jessie Singer. And today, we’re going to talk about how this neoliberal burden shift impacts workers at the workplace using similar language, a similar PR strategy, and similar compliant media.
Nima: Early examples of this come from the first couple of decades of the 20th century. At the time, worker accident and death rates in particularly dangerous industries, including steel, construction, rail and other transit, coal, and textiles, were alarmingly high. According to author Jessie Singer, who, as Adam just mentioned, was our guest on last week’s episode in 1900, at least one in every 50 workers in the United States was killed or disabled for at least four weeks in a work accident. A 1907 New York Times article reported 684 public works deaths in Manhattan alone in 1906 caused by “falls, explosions, the collapse of earth in excavations, premature blasts, and falling timbers.” In her 1910 publication Work Accidents and the Law, lawyer and journalist Crystal Eastman documented 526 industrial deaths among Pittsburgh workers between July 1, 1906 and June 30, 1907. Just one year. Now, employers in these industries often blamed workers for accidents on the jobs, unsurprisingly. According to the Department of Labor, “employers commonly believed that around 95 percent of all accidents were due to workers’ carelessness.”
Adam: This was enabled by contemporaneous media accounts who routinely framed the problem of workplace safety as one of lazy workers or careless workers.
So, this is from a Washington Times headline from February of 1903: “MEN WHO ROLLICK WITH DANGER FOR DAILY WAGES. Structural Steel Workers on Modern Skyscrapers Disdain All Precautions and Calmly Do Their Work One Hundred Feet in the Air as if They Were Down on the Solid Ground.”
And this is a syndicated article from 1906 which echoed a similar theme: “How Railroaders Are Killed; Train Crews Grow Careless.”
But the aforementioned Crystal Eastman found that the placement of blame was inaccurate and unjust. Of the 377 accidents covered in Eastman’s work for which fault could be determined, 113 or 30% of them were exclusively the fault of the employer. Only 44% at most could be partially blamed on the victim or other workers. And this was already in a system which was very loaded against the worker. And as the Department of Labor notes:
Shifting the statistical focus somewhat, Eastman made a strong case that even those accidents due to ‘carelessness’ were not very clear cut. Of the 132 deaths which were found to be the victim’s fault, 47 involved very young or inexperienced workers, or those with physical conditions that made them vulnerable. That left 85 experienced, able‑bodied victims of ‘carelessness.’
In 1911, a handful of states passed the US’s first worker compensation laws, which forced employers to provide cash benefits or medical funding to workers injured on the job. As Jessie Singer writes in her book There Are No Accidents, the cost of workers’ compensation “inspired the owners of America’s largest corporations to launch the first industrial safety campaigns — and those campaigns focused on changing workers’ behavior by teaching them not to make mistakes.”
Nima: Accordingly, industrialists in and around states that were passing such laws formed the first Cooperative Safety Congress, which later expanded into the National Council for Industrial Safety, which Singer describes as a “centralized organization to control and finance information about worker safety and accidents on the job.” The Council sold posters that emphasize worker error as the cause of accidents rather than corporate negligence. The posters featured such often condescending lessons on how to pick up boxes, how to tuck pants into socks, and how to keep a clean workstation.
In the ensuing decades, a narrative of accident-prone workers would arise, crafted by capital and corporate-hired psychologists in order to pathologize mistake making and lend scientific credence to corporate deflection of responsibility. A 1944 Kansas City Star article, for example, outlined 12 qualities of the “accident-prone worker,” citing a psychologist’s study on workers at industrial plants. Among these 12 qualities were the following five: the accident-prone worker “has no interest in philosophy beyond a firm belief in fate; makes up mind quickly; alcohol and tobacco used to let off steam, not for social purposes; frequent conflicts with authority.” And lastly, “record of broken homes — his own and parents’.
Adam: Oh, yeah, that’s wonderful. So, that’s how you screen for an accident-prone worker. By the way, this pretty much includes about 99% of workers so it’s a way to sort of retroactively pathologize after the accident.
Nima: That’s right.
Adam: Now cut to the ’80s. Over the decades, not much would change, but in the 1980s, many businesses began to adopt what’s known as “behavior-based safety” or “behavioral safety programs,” many of which were still in effect today as we described in Part I. Much of this was in response to the regulatory apparatuses that emerged in the 1970s and early ’80s. Now, these programs tend to include training of observers, which is a worker or supervisor who observes worker behaviors and critical behavior checklists to document worker actions. They don’t account for corporate responsibilities such as regulatory compliance, management of hazards, or expectations of productivity or quotas, which of course, are huge drivers of workplace accidents. Behavioral safety programs thus frame safety as a matter of worker behavior — i.e. carelessness and consciousness or unconsciousness of unsafe behaviors — and place the burden of safety not on employers but, of course, on the worker where it of course, belongs because it’s all about limiting that liability, baby.
Nima: [Laughs] Exactly.
Adam: United Auto Workers specifies:
Many companies that implement behavior-based safety programs are hard on workers when it comes to safety rules and use of personal protective equipment but lack the most basic engineering controls. ‘Staying out of the line of fire’ replaces effective safeguarding and design. ‘Proper body position,’ has become a replacement for a good ergonomics program and well-designed workstations. And personal protective equipment becomes a substitute for noise control, chemical enclosures and ventilation.
As many unions have noted over the years, behavioral safety programs are based on unreliable data that, of course, flatters the management who funds it. This includes the work of Herbert William Heinrich, an insurance investigator who argued in his 1931 book Industrial Accident Prevention: A Scientific Approach that 80% of accidents were caused by “unsafe acts of persons.” Heinrich claimed to have reached this conclusion based on thousands of accident reports without accounting for the fact that every report was written by the supervisor. It’s also worth noting that Heinrich made the meritless and racist claim that “ancestry and social environment are factors in every accident.”
And so obviously, there’s an institutional desire by corporations to remove as much liability as possible, and when they’re constantly placing the blame for workplace safety on the workers which, of course, again, for the millionth time, it’s not as if workers don’t have a responsibility. They have a responsibility as human beings, but on an institutional level, as the UAW notes, much of the things that go wrong are preventable far more upstream in terms of how you design a workplace, how you have ventilation, whether or not you need the sort of sparks and steam razor blade coming through every five seconds.
And so, this idea that safety is ultimately the responsibility of the worker and is largely the responsibility of worker, nominally through these kind of education programs or education campaigns, reinforces this ideological premise that they just need to focus more or be less layabouts or have a better home life, some better upbringing, drink less at home even though they’re not drunk on the job. It doesn’t sound really clear.
Nima: Yeah, I mean, all of this is kind of like the antecedent to Mike Rowe’s S.W.E.A.T pledge, which we have read before on this show, but if you haven’t read it, I don’t urge you to, but I think you probably should. Trigger warning: it is absurd. But the skill and work ethic pledge includes things like “I believe that safety is my responsibility. I understand that being in ‘compliance’ does not necessarily mean I’m out of danger.” And urges all workers to stop whining, and if they are unhappy in their work, “find a new job, or find a way to be happy.” It also says, “I understand the world is not fair, and I’m OK with that. I do not resent the success of others.” So, it’s this idea — very, very pro-boss, anti-worker.
And so with that, let’s turn, Adam, to Amazon, the perennial corporate villain and second biggest private employer in the United States. Now, Amazon has introduced a similar program of assigning the responsibility of safety exclusively to its workers. In 2021, Amazon introduced a series of “health and safety programs,” known as WorkingWell, that essentially boiled down to stretching and meditation exercises as well as nutrition advice. Amazon is notorious for its extremely high warehouse injury rates, owed in large part to the breakneck pace expected of warehouse workers and to high turnover and attrition, resulting in less experienced workers handling machinery that they’re not really used to.
According to the Center for Investigative Reporting, in 2019, Amazon’s warehouse injury rate was approximately 7.7 injuries per 100 employees, nearly double the national industry average. The Center also found that warehouse workers in DuPont, Washington were injured at a rate more than five times higher than the national average. The program didn’t really seem to do much. In 2022, the year after working well was launched, Amazon warehouse workers suffered serious injuries at more than twice the rate of comparable facilities according to a report by the Strategic Organizing Center. That report noted, “While Amazon employed 36 percent of all U.S. warehouse workers in 2022, the company was responsible for more than half (53 percent) of all serious injuries in the industry.”
Adam: Now, this, of course, didn’t stop media outlets like CNBC from doing Amazon’s bidding, promoting the myth that it cares deeply about workplace safety. Here’s a clip from a 2022 segment in which dopey Wall Street booster Andrew Ross Sorkin, New York Times columnist as well, toured a warehouse with Amazon executive Alicia Boler Davis, touting the corporation’s supposed safety measures without interrogating its culpability and its high injury rates. Let’s listen to that clip now.
[Begin clip]
Andrew Ross Sorkin: What’s a typical day like?
Alicia Boler Davis: So, a typical day? You know, for our employees, they come in, we do something where we do a startup meeting where we do a huddle, and that’s where we’re able to do stretches for safety. So, safety is a priority for us. And so, you’ll see in the huddle where our associates are doing stretches and bending to get ready for work. And then, they’ll also learn about what’s happening today. Is there anything in particular they need to know about? Are there any communications that the site or the company needs to make? This is one of our WorkingWell huddles. And so, WorkingWell is something that we implemented over two years ago. And its focus is on how do we prevent muscular, skeletal injuries? And so, these are injuries of motions like strains and sprains. And so, we partner with academic researchers and athletic trainers to train our associates on the proper body mechanics, proper stretching techniques that will help them as they’re doing the work here in the warehouse.
[End clip]
Adam: The tour would continue with Sorkin asking the following hard-hitting question:
[Begin clip]
Andrew Ross Sorkin: What do you think the biggest misconception is about Amazon warehouses around the country as national debates about employment and labor?
Alicia Boler Davis: I think the biggest misconception is that our warehouses are not safe. And so, I will say that with clearly saying we have more work to do. However, in 2021 alone, we invested over $300 million in safety improvements. And that’s capital investments. That’s vehicle technology. There’s technology that we’ve shown here, and we continue to make that investment. We’re committed to improving the safety within our warehouses.
[End clip]
Adam: There’s nothing like the hard-hitting question of “What’s the biggest misconception about you?” That’s how you really drill down and ask the tough questions. So, believe it or not, Amazon, of course, isn’t committed to workplace safety as mentioned in the previous statistics we read, which show that they are wildly disproportionately represented in workplace accidents compared to their number of employees. But also, an April 2024 report by the National Employment Law Project and over a dozen other workers’ rights groups found that Amazon workers were still injured at disproportionate rates, and that injuries in Amazon warehouses were more likely to be serious enough to require time off of work. As Ella Fanger at The Nation noted in May of 2024, “Amazon accounts for 79 percent of employment among warehouses with at least 1,000 workers, but 86 percent of all injuries.”
And so, we have a deliberate corporate PR strategy to constantly talk about, you know, we’re going to give them stretches and athletic trainers and in and of itself, some of that stuff is fine, but if it’s not tethered to lowering quotas, making the actual fundamental workplace safety and more importantly, having labor unions monitor these things, right? Because that’s one of the primary things that labor unions do. They push back against unsafe workplaces. They’re not going to do just some stupid ass low-cost, cheap, easy, ergonomical stretches. They’re going to make you change this or more importantly, you know, take the quota from 50 to 30. These are the kinds of things that make workers safe. But of course, Amazon doesn’t want anything that’s going to promote safety that reduces their bottom line. So, most of the stuff they push is, of course, entirely cosmetic.
Nima: Yeah, because if injuries are the fault of the employees themselves and the corporation could say, well, look, you know, every day on the job, you know you have your little calisthenics thing like every day we teach you to stretch and to take care of yourself. So, if you get injured like that’s really on you. All of it just gets folded into this burden shift. So, to discuss this more, we’re now going to speak with Anastasia Christman, Senior Policy Analyst at the National Employment Law Project. Anastasia will join us in just a moment, stay with us.
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Nima: We are joined now by Anastasia Christman. Anastasia, thank you so much for joining us today on Citations Needed.
Anastasia Christman: Oh, thank you. Hello.
Adam: Yes, thank you so much. We’ve spent the better part of half an hour talking about this broader trend of corporations coming up with clever ways of, kind of shifting the burden, both legally and for PR and politically from them to the consumer and also to the sort of public more broadly. And of course, their employees, pretty much anyone who’s not in the C suite, really, it’s important that they take the responsibility for health and safety. But I want to sort of begin by your area of expertise, which is labor law. I want to sort of begin by asking you how you feel like employers emphasize this idea of a culture of safety in their workplace and how this framework has been used to recuse bosses from the responsibility of themselves creating hazard-free workplaces. So we’ll sort of start with this vertical and kind of work our way out from there. If you could kind of comment on the origins of that and how you perceive that, that sort of subtle shift over the last few decades?
Anastasia Christman: So, the way that the law is written about workplace safety, there are sort of two cardinal rules, two base rules in the Occupational Safety and Health Act. And one of them says that the employer shall furnish a place of employment that’s free of hazards for serious illness or death. And then workers, employees shall comply with the rules in the law. So, it’s two “shalls,” they’re mandatory, and those are the responsibilities of the two parties that were laid out in law.
And obviously because the employer has much more control over how the workplace is set up and the kinds of equipment that are used and the processes that are used, their responsibility is more heavily weighted, and they don’t like that. They don’t like to have that kind of responsibility, and they have done a few things to get out from under it.
One thing’s just literally not calling people “employees” anymore. They do a lot of employee misclassification and convince an employee that they’re there as an independent contractor, which means they’re not covered by OSHA at all. But outside of that, even for the people that they would recognize were employees, they have started to create this culture of safety notion, which is not, in and of itself, a bad thing. It really grows out of largely the medical field, and this notion that in order to operate well as a hospital, they had to actually build safety in as one of the top priorities of the business. And when you read the literature about it, it’s supposed to be non-hierarchical, participatory, much more staving off injuries before they happen than addressing them after the fact. And it’s sort of built into the strategic plan so it’s very horizontal, it’s very participatory for all of the employees. And you can read up on how nurses have a key role in that. That has gotten ported out of the medical field into a lot of other industries, and the way that they are interpreting the culture of safety is that it’s really the responsibility of the workers to ensure their own safety and sometimes even to sort of tell on each other.
And so, there have been cases where employers will set up contests where workers are rewarded if the workplace is hazard free for so long, which of course, means that if somebody reports a safety problem, the bingo card is cleared, and everybody else is mad at them. Or if the little sign is up that says this workplace has gone so many days without an injury, and there’s an implied reward for that, as soon as somebody reports that they got injured, that time resets, and other people can be angry about it.
And so, they have created this system, this overarching notion of the workplace where employees are supposed to be committed to presenting the workplace as safe more than being able to do things that would actually keep them safe, which means reporting when something is going wrong or when it could go wrong. You know, not being empowered to go to an employer and say, I’m just not sure that guard on the machine is doing what we think is supposed to be doing, and maybe we should think about replacing it. That’s not implied in that culture of safety.
There are also circumstances where you will look at OSHA complaints and the way that the determinations are made, and sometimes they literally end up blaming the worker for what are considered to be lifestyle choices as part of creating this injury. So, they may imply that it’s an underlying health condition of the worker, especially one that comes with judgment, you know, whether it’s diabetes or a high BMI index or, you know, they will accuse them of having a drinking problem, and that’s made them more susceptible to heat, for example.
So, they will try to point to behaviors that the worker engages in their own private life and put a judgment, a moral judgment on it and blame that as part of the safety hazard. Rather than say, this worker collapsed of heat because we didn’t provide any shade or water, they may say, this worker collapsed from heat because they don’t have the moral wherewithal to have good underlying health, you know. And so, there’s a very negative blame facet to this culture of safety that was not in the initial concept.
Nima: Yeah, I’m really curious about this idea of the kind of shared culture of the workplace and how that has shifted over time. I think it directly connects to what you were saying, Anastasia, about even the kind of shift in language or the shift in labels, right? So, you know, you mentioned, a lot of workplaces aren’t calling employees “employees,” right? Bosses aren’t saying that they have employees. Some of our favorites that we’ve, you know, heard over the years, we’ve talked about on the show, things like “team members” or “family members.” Can you talk a little bit about how this idea of a shared culture and the shifting language and labels serves to present this idea of not only a shared culture at work but a shared workplace, right? That the workplace is shared equally in the same way by everyone there whereas we know that some workers are working in conditions that are very different from the conditions of their bosses. Yet, we’re supposed to understand that everyone is sharing the same kind of baseline.
Anastasia Christman: Right, right. Well, and interestingly, that baseline is profit, and it’s not a thriving workplace filled with wellness initiatives. And so, they’re presented as team members, but what the team is trying to achieve is profit, which is directly contrary sometimes to health and safety. You know, to run a place safely, you’re going to have to put some processes in place or capital improvements in place that may cut into your profit margin, which is not how the team is supposed to be working.
It is fascinating, you know, I think about, for example, some of the retail workplaces right now that are being organized and the way that they call the workers, you know, “associates” or “team members,” and you were all in this together. And yet, they fight tooth and nail against those same people who might say, we have something to say about how the workplace is run, and we would like to have a formal seat at the table and sit down and talk to you about it and bargain over it. You know, we’re a family, but not everybody gets an equal voice in the family. Children are supposed to be seen and not heard. So, they do use this sort of Orwellian language to talk about this. And they will even occasionally, if you think about health and safety, you know, they’ll put a suggestion box out, usually right near a supervisor’s office, and they’ll say, we encourage you to share your thoughts about this.
Adam: To snitch.
Anastasia Christman: Right, exactly. You know, to snitch.
Adam: Yeah, it’s not just semantics, either. To be clear, like you mentioned, labor misclassification, the squishy team member stuff has propaganda value but also, there’s billions and billions of dollars in equity that have been created through apps like Uber, apps like TaskRabbit, that are predicated on labor misclassification. There’s a huge growth industry in labor misclassification, which is really just a kind of legal ontological trick, which is to say, you can save a company, can save all this money if they just call someone a contractor versus an employee. And that, of course, offsets not only their cost in terms of salary, in terms of benefits but also, in terms of their legal responsibility. Can you talk about the shift away from employee to “independent contractor?” What the implications are on health and safety law. Because I think that’s something a lot of people miss because usually, it’s discussed in the context of wages, but it’s also about the responsibility of the employer as well.
Anastasia Christman: Right, right. Well, the way that the Occupational Safety and Health Act is written — like a lot of labor law — is it regulates the employer, and that presumes that that person has employees. And so, the rules that employers have to follow really only apply if they have that employee base, sometimes even literally if they only have so many employees. But just generally, if you think about this general duty clause that I said, where the employer shall furnish to each of their employees a place of employment free of hazards, that really implies that if these people aren’t your employees, it doesn’t much matter what the site looks like, and the rights that the employees have under this act to report unsafe conditions, to be free of retaliation from doing those reports. That then means that those so-called independent contractors, they don’t have those rights. So, if they go on to the workplace, and they see something dangerous or something that’s going to make people ill, they don’t have any recourse to deal with it. Theoretically, their only recourse is their ability as a market player to sell their skills to somebody else. And so, the entire act doesn’t apply to you if you’re not actually an employee.
Nima: Yeah, any opportunity I get to talk about professional wrestling, I seize. And you know, the idea of independent contracting has served as the basis for that industry for decades and decades, right? And especially when it comes to health and safety, obviously wages as well and organizing, unionization. But the idea that if every performer, every wrestler is an independent contractor, then the companies that they work for whether they’re as huge as the WWE, that massive corporation, multi-billion dollar corporation is not beholden to the people that are generating the wealth for them because they’re all held as basically independent contractors rather than employees. And so something that is as kind of physically demanding as that, it is clear where the kind of health and safety implications are and where the abdication of responsibility lies. But all the way into other industries, we see that as well.
Anastasia Christman: Yeah. I mean, you mentioned app-based drivers, young gig drivers before, and we’ve seen it a lot there too. You know, there are workers who do those jobs who have been subject to sexual harassment from passengers, some of them have been shot. And the app company, whether it’s Lyft or Uber or whomever, they abdicate responsibility for that. They abdicate responsibility for sending that driver into that situation or having any way to help protect them because they’re not their employee, they’re an independent contractor. And if you picked up a fare and got yourself shot or harassed, that’s sort of your problem.
Adam: Yeah, you know, one thing we mentioned briefly, and we’ve done a whole episode on this is the more extreme Koch-funded version of this, which was the Mike Rowe “Safety Third.” This sort of tough guy, you know, safety’s become too prominent. And I want to talk about this kind of broader cultural effort on the part of the more extreme right-wing think tank: Reason, Cato, and American Enterprise Institute. And you see this with a lot of these corporate-funded, frivolous lawsuit awards. And we talked about this about four years ago. We did an episode on pop torts. I think we’re the plaintiff’s lawyers’ favorite podcast. Someone has to stand up for the ambulance chasers and goddamn it, we’re going to do it. Because it really is, it’s part of this culture of like, oh, everyone’s suing everybody, and everything’s overly safe, and everyone lives in a bubble wrap and blah, blah, and it’s like, what? No, like, it’s still very unsafe for the vast majority of workers. People who work in meat packing plants in Iowa who are getting limbs cut off. The courts are handing out $1,400 fines for underage workers being maimed recently, which we, again, we’ve discussed.
So, I want to sort of talk about the parallel effort that not only kind of offloads responsibility from the corporation to the worker and to the consumer, but also this kind of broader cultural effort to make us look overly litigious, overly safe conscious, which I think, again, I think for people dealing labor law, for doctors who work in hospitals and clinics and ERs next to large packing plants in the Midwest, I think would probably be surprised to hear that as a kind of general cultural diagnosis. Can you talk about the parallel effort to kind of act like we’re all sort of living in plastic wrap?
Anastasia Christman: Right. Well, it’s interesting that you bring up those fines for the child labor violations because —
Adam: They’re a fucking joke.
Anastasia Christman: They’re ridiculously low. And in fact, all of the OSH penalties are ridiculously low. And even in some states where they run their own OSH programs, their fines are even lower, if you can believe it. But every time one of those fines is levied, almost as a matter of course, the employer will contest it. A real culture of safety would mean that when a government regulator came in and inspected a workplace and then said to the employer, here are the 4, 10, 12 things that I’ve found here that are unsafe. that employer would say, well, then I need to fix those, you know. And they would do that but instead, they tend to contest the citation and these ridiculously low fines in part because to not do that, they think, would open them to liability. If there was a lawsuit, you know, they’ve admitted there’s this problem and so, it would give them liability. But there’s definitely something on the employer’s side here for sure, and they will in trying to blame the worker and maybe “lifestyle choices” that the worker made in determining who’s responsible for an injury or health, they’re really doing the same thing, right? They’re trying to set up their case in case it goes to court for why this wasn’t their fault. It was the worker’s fault.
Adam: Yeah, which is why they’re constantly building a case against every single worker by sending those passive aggressive emails about, we noticed today, you didn’t do this right so they can show a judge later.
Anastasia Christman: Exactly, exactly. You know, they’ll have a paper trail to show that this wasn’t their fault. It’s interesting that you bring up the plaintiff’s attorneys. Just recently, there was a new rule finalized that would say, you know, whenever an inspector is going to come to follow up on a complaint about an unsafe workplace, there is the right for workers to have a representative with them, to walk around with that inspector and help explain what’s going on. Sometimes, there’s a language difference with the inspector and the workers, and they can bridge that language difference. And it has gotten interpreted to the way that this is a right that really only unionized workers have because the presumption is it has to be a union rep. And this new rule was put out that said, well, you know, not all workers have a union and so, workers should be able to decide for themselves who this person will be to do the “walk around,” it’s called colloquially, who the walk around representative is going to be.
And so, you know, it was supposed to go into effect at the end of this month. Sure enough, there was a lawsuit dropped just the other day by the National Association of Manufacturers, and one of their concerns is that this could be an opportunity for plaintiff’s attorneys to be named the walk around rep, and they’ll walk around, and they’ll just try to collect evidence for all their big lawsuits, and they’re really just shopping for clients, and they’re not interested in the safety of the workplace, you know? And this is their concern, you know, that somehow these evil lawyers will be circling like sharks.
Nima: Everyone is venal, but the bosses.
Anastasia Christman: Exactly, exactly.
Adam: Yeah, again, we’re not saying that workers don’t have responsibilities, right? I mean, I don’t think a teacher should show up with a handgun or a nurse should show up 20 minutes late on booger sugar like clearly, there are certain expectations that workers should have as sort of people and human beings. Whenever a corporation settles this major lawsuit, one of the main things they do, I think especially about tobacco, is they do these education campaigns where they say, drink responsibly or for $10, you can win $1,500 in this degenerate gambling app. And then at the end, it’s like, gamble responsibly. It’s your fucking responsibility.
Nima: If you know someone who has a problem with gambling, get them help.
Adam: So, I want to sort of talk about, I want to compare this then to sort of other cultures, other legal systems, because I think if we’re gonna rag on America for being overly pro-corporate, and obviously, no system is perfect. Setting aside the systems where if a corporation fucks up, they execute the CEOs, we’ll sort of set that aside. Is there an example you think of a better system in other countries that has a more equitable burden share that you think is a good example because this is not some exotic thing, right? There are other countries that have labor laws.
Nima: Where do regulations work?
Adam: Where do they work better? I suppose I should say, right?
Anastasia Christman: Well, with the stipulation that the rest of the world isn’t necessarily my strong suit, I will say that in Europe, the way that they have set up the relationship between unions and companies is they have these things that they call works councils. And so, representatives of workers in a particular industry, whether they’re union or not, will have a seat at the table with the people who lead that industry to talk big picture about the standards of the industry, and that includes health and safety work. And so, if there are fundamental underlying parts of an industry, you know, practices that have been generally adopted, and they are creating health and safety problems, all of the workers have other workers sitting at the table to hash these things out.
In this country, we do it on a site-by-site basis. If a workplace has a union, they will have a safety and health committee. It’s a mandatory subject of bargaining. They can do that as part of the collective bargaining agreement. As an example, I would point to the UPS drivers who recently had a big campaign about how hot their trucks were getting. You know, they were driving around in these ovens, and then when bargaining came, they, in fact, were able to bargain air conditioning into all those trucks and retrofits for the trucks. So, we do it on a site-by-site basis here or an employer basis here.
In Europe, they do it on an industry wide basis, which I would think, even as an employer, would be the way that you would want to do it because now UPS is going to put air conditioning in their trucks, but FedEx might not or DHL or whomever and so, they have this competitive disadvantage. They have this cost that they have to do that others may not do whereas if it was the delivery industry as a whole, sitting down with workers as a whole and saying, the world is getting hotter and as it turns out, we’re sending people out in mobile ovens every day, they could make a change industry wide, and then everybody’s on the same footing. So, you would think that from a purely business standpoint, they would prefer to do it that way, but they absolutely fight against that because what they really prefer to do is not do it at all. They don’t want the industry-wide conversation, and they don’t even want their workers to unionize that they will have that conversation with their own team member, associate, partner, or whatever phrase they want to use.
Nima: Well, right. Because then they can kind of determine what kind of competitive advantage or disadvantage they’re happy with, right? Like, what is the best for the creation of more profit? In terms of the history of things like OSHA and then the backlash that we have seen, you know, probably namely since the 1970s when a lot of these reforms, imperfect as they are, were enacted, what do you think has kind of maybe accounted for that switch? And are you seeing things get worse now or maybe are they getting worse before they get better? I’m just thinking about more moves to unionize, you know, that have been seen for decades. But also, you being so close to this, what are you seeing in terms of where we are now based on where we were?
Anastasia Christman: You’re asking me to talk about the 1980s which we could do all day long. But what I think was key there, you know, there are a number of things, but one of the things that’s really key is that even as some of these rules are being put in place, you know, you think about not only occupational safety and health, but the EPA and, you know, environmental regulations, even as those are all happening in the ’70s, there was this simultaneous move to deregulation. And it was really under Carter that we started doing the deregulation, and everybody picked up on it and kept moving it. And was based on this fear that corporations had captured regulatory agencies, that they had too much power to determine what regulatory agencies were doing. So, it’s an ironic solution that what we decided to do about that is simply deregulate and not, you know, disempower the corporations, but that’s a different question.
And so, there starts to come this very anti-regulatory movement, and part of the manifestation of that is that they started really focusing on this detailed economic rationale for regulations that comes down to cost and benefit. And you know, how many people are going to benefit from this rule, but what’s it going to cost for the employers to do it? And it’s this very, almost cynical valuing, you know, in the worker context of workers’ well being and welfare versus the profit. And the entire regulatory system becomes this huge negotiation where we try to figure this out. And then, this is coupled with the entire anti-tax, anti-government, drown it in a bathtub vision of how the US should be used. And so, at the same time that we’re deciding we’ll only do regulations if they pencil out in some sort of great societal ledger for cost and benefit, they also are starving the regulatory agencies anyway so it almost doesn’t matter what that’s passed because there’s no ability to enforce it. And it creates this scarcity mindset. You know, it’s a way to play one set of protections off another set of protections. And well, which one’s really the most important, and what are we going to do? And as you sort of think about how this plays out in the bigger picture and how this helps employers to abdicate their responsibility, they’ve really made regulation the demon in the whole story, you know.
And they’ve even started to be able to convince workers, you know, we understand that having to wear a harness on that roof is a pain. We don’t want you to do it. It’s the government that wants you to do it, you know. And they can use that to create a sort of political mindset among workers too against the whole notion of health and safety legislation. It just becomes something that’s kind of a nuisance, and it makes it harder to do their jobs, especially if they have a quota or a productivity standard they’re supposed to meet. You know, I know I should be picking the box up like this but you know, if I don’t hit my quota at Amazon, the software is going to tell them I’m standing still too long, and I’ll get in trouble. And so, it’s also really a way to pit workers themselves against the very protections that have been put in place to help them.
Adam: And snitch on other workers as we saw in the great labor commentary of Andor, the Disney+ Star Wars Show. One last thing I’d like to ask because one thing I feel like people don’t really appreciate is that there really is no real mechanism to regulate corporations outside of Black Swan lawsuits. I mean, look, there’s no criminal penalty for child labor at all. Right? There’s been a lot of fuss about child labor lately, and I’ve written several articles where I’m like, isn’t it curious that all the tough on crime people said that Chesa Boudin and other reform prosecutors that the fact that they didn’t put people in prison for petty shoplifting meant they didn’t really care about crime. But yet, we put virtually nobody, and I mean nobody, in prison for child labor violations. It is a token fine at best, and the solution that was proposed by the White House was just slightly bigger fines. That’s the playbook, right? Corporations can steal your money. They can, again, have 12 year olds clean razor blades at meat packing plants. They can pretty much do whatever they want, and the only thing they ever get is a fine, which is factored in some cost-benefit analysis that was done 15 years ago anyway. The one check you have is these kind of Black Swan lawsuits, really, I mean, in key ways.
Anastasia Christman: There is a provision in the OSH law for criminal enforcement.
Adam: But it’s never enforced.
Anastasia Christman: Well, not never. Since the act was passed in the 70s, there have been 137 cases. So, you know, since the 1970s, there’s been 137 cases, which is ridiculous. The AFL put that number out, and during that same time, there’d been 435,000 workplace fatalities. And so, you know, you can start to do the math and see what a minuscule percentage of those got prosecuted. And you know, you’d have to go through and take a look at how many in the end, the enforcement was actually upheld.
Adam: Yeah, because The New York Times about a year and a half ago, had a Pulitzer Prize winning article about child labor, rampant child labor. Then, the White House came out and said, we’re going to do this, this, and this. And The Washington Post, I asked the reporter, look, since this all happened, has anyone been criminally prosecuted for child labor? The answer was no. And the point is that the check mechanism we use for corporations is a polite nudge, and the check we use for petty crime and homelessness is incarceration. I mean, it’s serious, right? This double standard, I think, is really what it boils down to in terms of how you check people for not abiding by this supposed culture of safety. Because again, if the corporation doesn’t do their job, the result in terms of health and safety, they get maybe at worst, a fine. If their employer doesn’t do their job, people die. The employee dies. So, the stakes are much higher.
And so, I think that’s part of the frustration with this idea of allegedly equitable responsibility for health and safety is that the mechanism we use to police it in the C suite is a phone call and, you know, a kind of nice pat, you know, by the way, we’re going to take $1,500 from you this week whereas the other, I think, is sort of more punitive and more life and death. And I think that asymmetry speaks to the kind of hollowness of this supposed equity. That’s not really a question, it’s more of a rant. Sorry.
Anastasia Christman: One of the things that I’ve been working on a lot lately is trying to get some of these heat protection standards passed in various different places, including federally in order to protect workers as every summer gets hotter and hotter and hotter. And the astonishing thing about this standard, which the employers are just fighting tooth and nail, is that heat illness and heat stroke are completely preventable. Doctors all agree they are completely preventable. What do we have to do? What are the extraordinarily expensive and onerous and difficult things an employer has to do to protect the workers? They have to provide water, rest, and shade, which some would argue are just human rights and, you know, even outside of the workplace. But water, rest, shade. That’s it.
Every summer, we see workers die of this completely preventable problem, and there’s a lot of hand-wringing and very sympathetic news stories about them and their family before it gets eclipsed by something else. But with the exception of a very few states, nobody has just said to these employers, you know what? You just have to provide water, rest, and shade. And it’s to me, astonishing that something that simple is so contentious that it’s taken 40 years to start to get that standard written. You know, we’re not talking about massive capital investments. We’re not talking about replacing an entire fleet of trucks. We’re talking about putting, you know, a Gatorade cooler out like you do at any high school football game and having a shaded place for people to sit down for 10 minutes.
Nima: Yeah, and you’d think that, you know, to call people family members then treat them terribly. It’s like the most abusive family in the world.
Anastasia Christman: Right. Yeah, I don’t want to go to Thanksgiving at your house if that’s how you treat family members. Exactly.
Nima: [Laughs] You don’t have any water. This place sucks. Well, Anastasia, this has been amazing. Thank you so much again for joining us. Before we let you go, can you let us know what you and the good folks at National Employment Law Project are up to lately, what people can kind of look out for, maybe even support you on?
Anastasia Christman: Oh, my gosh. We do so much work. We work in so many different areas to try to support low wage workers. I would say that some of the big things that we’re really working on, especially related to health and safety questions, we are very interested in the way that incarcerated workers aren’t covered at all by Occupational Safety and Health even though about 80% of them do work often for the public. So, we are working on that. And then, we also look at what happens once they are out of the formal incarceration system but into the parallel one where there’s parole requirements and things like that. The other thing we’re really interested in is thinking about occupational segregation and the way that lasting racial bias and stereotypes about the physical fitness of workers means that workers of color get really funneled into these jobs that endanger them, particularly climate change disaster. And white workers are much more likely to be in positions where they have some sort of protections for those.
Nima: All incredibly important work. Again, can’t thank you enough for joining us. We’ve been speaking with Anastasia Christman, Senior Policy Analyst at the National Employment Law Project. Anastasia, thank you again so much for joining us today on Citations Needed.
Anastasia Christman: Oh, thank you. It was really fun. Thanks.
Adam: Yeah, I think the good way to look at it is, does this particular workplace measure cost the corporation anything? If it doesn’t undermine the bottom line, they’re happy to do it. Like, why not? You know, giving calisthenics or putting up a poster or teaching a more ergonomical way of doing something doesn’t impact them. The second it costs them money, you know, it slows down production or requires more technology to invest in or better infrastructure or better ventilation, they’re not going to do that. So, what they do is they take all this stuff, a lot of which is kind of bullshit that doesn’t cost them anything, it doesn’t undermine the bottom line, and they promote it, and they boost it, saying, look at all these great things we’re doing because it’s no cost.
And that’s why you need an adversarial fulcrum to push back on that, which sometimes, it’s government regulators but for the most part, it’s going to be a union. And they, of course, do not want that, and they certainly don’t want the ambulance chasers breathing down their necks either because that’s the only thing that can hold corporations accountable. It’s all fines. It’s fines all the way down, right? So, a punitive settlement is pretty much the only thing that ever makes them not do things that throw 15-year-olds into meat grinders.
Nima: And in lieu of having to deal with that, you know, they’re more than happy to implement more and more of these “education initiatives.”
Adam: Because it’s cost-free. Why not?
Nima: Even if it’s like, oh, we’re gonna bring in a consultant to do this thing or now, we’re going to implement, you know, the first 15 minutes of your workday, punch in and we’re going to do some stretches. It’s all just about alleviating the burden from the workplace itself, putting it onto the worker. Because, look, you know, they’re providing more and more education. They’re providing more and more information. This is how you can take care of yourself.
Adam: Yeah, you bring it to government regulators in Congress, and you bring it to the jury during lawsuits, and say, look at this safety plan we did.
Nima: Right, we did this whole thing. These are up in every workplace. This is up in every warehouse, etc, etc. And so therefore, it’s all about protection, right? It’s all about that kind of liability and covering their ass. And so, at the end of it all, when these injuries keep happening, whether it’s Amazon or anywhere else, these injuries keep happening, it’s always, hey, well, you know, we gave you the tools to do this well. We gave you the knowledge to do this well. We supported you as best we could. You’re the one who chose to do something unsafe or you’re the one who pushed yourself too hard, right?
Adam: Well, and the thing is, is that Amazon’s focus on high turnover rate, which they’re notorious for, one of the reasons they have so many accidents is because the people who work there have not worked there that long. And they’re constantly pushing new people into places they’re not comfortable with. And that’s the thing too, this obsession with high turnover and low unionization necessarily is going to make a workplace less safe because you’re putting newbies in really dangerous and important jobs because you treat everyone like shit, you grind them to a nub, and then eventually they quit. So, it’s all part of a broader ecosystem of corporations, especially corporations like Amazon just not wanting to take responsibility. Because, again, water finds at its lowest point like corporations and corporate lawyers will always find the lowest level of responsibility. They wake up every morning, 2 am in a cold sweat, thinking, how do I offset more liability? That is their fucking obsession.
Nima: And then when they can’t do it by blaming the people who buy their products as we discussed last week, they blame the people who make their products.
Adam: The lazy, irresponsible, careless pieces of shit that work for them.
Nima: Well, on that happy note, Adam, that will do it for this two-part series on the Great Neoliberal Burden Shift. Thank you, everyone, for listening.
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Our senior producer is Florence Barrau-Adams. Producer is Julianne Tveten. Production assistant is Trendel Lightburn. Newsletter by Marco Cartolano. Transcriptions are by Mahnoor Imran. The music is by Grandaddy. Thanks again, all. We’ll catch you next time.
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This Citations Needed episode was released on Wednesday, July 10, 2024.
Transcription by Mahnoor Imran.
