Why You Were Inspected but Your Competitor Wasn’t:
Why are some contractors inspected over and over while others are never targeted? The question baffles contractors and raises doubts about the fairness of OSHA’s enforcement system.
“It’s complicated,” says Scott Schneider, LHSFNA Occupational Safety and Health Division Director. “If you think about the nature of the construction industry itself, you begin to see why.”
Schneider’s point is well taken. David Weil, a private consultant who has worked with OSHA on targeting for more than a decade, points out that worksites are constantly changing, moving through a series of stages, each with different dangers and risks. Each stage involves different materials, technologies and work sequences with different kinds of exposures to external and internal conditions. In each stage, different sets of subcontractors and workers are on the site with each sub bringing its own system of safety management.
“The construction work site is dynamic by nature,” Weil says in a new report. Unlike other industries that produce goods in fixed facilities, “The ‘manufacturing process’ for construction requires the physical transformation of the workplace itself and, therefore, working conditions.”
Because the workplace is constantly changing, the health and safety issues of a construction project are always in flux. Yet, the inspection system used by OSHA for construction is the same as the one used for fixed facilities – a static system for a fluid situation. It is this contradiction that fuels speculation about the system’s fairness.
Every year, construction has more injuries and fatalities than any other industry. In 2002, 1,153 workers were killed, and 163,700 had injuries serious enough to involve lost workdays. Given its danger, construction has been an important target of OSHA enforcement since the agency’s inception in 1970.
In 2002, OHSA had 1,123 inspectors at the federal level. On average, they devoted about 40 percent of their inspection time to construction.
When OSHA first began operations in the 1970s, the historic absence of safety and health standards meant that every construction contractor operated according to its own standards. The promulgation of OSHA standards established a level playing field in theory, but did not guarantee it in practice. Enforcement was necessary to gain the attention of all contractors and move them toward compliance with the new standards.
However, at any given time, millions of construction worksites are active in the United States. From the beginning, OSHA knew it could not inspect them all.
Reliance on complaints to trigger inspections was deemed inadequate because workers might not know the exact parameters of safety standards or whether they were being violated, and they might not feel safe making complaints, particularly in non-union situations.
To ensure comprehensive coverage, OSHA implemented programmed inspections, relying on a variety of methods to develop target lists for area offices. In a 1977 decision (Marshall v. Barlow’s Inc.), the U.S. Supreme Court ruled that OSHA must use “specific neutral criteria” for selecting its targets. Today, OSHA employs a computer-based system to generate “random” targets for all area offices.
How the System Works
No law requires the reporting and central collection of construction project data, but contractors need to know this information in order to bid on upcoming projects. Thus, for decades, commercial services have gathered this information and published it for their clients.
Today, the McGraw-Hill publishing company occupies this niche, publishing the monthly Dodge Report, a regionally-oriented database of planned commercial construction projects valued at more than $100,000. Beginning in 1988, OSHA contracted with Dodge to provide data so that a team of researchers at the University of Tennessee – now known as the Construction Industry Research and Policy Center (CIRPC) – could use them to generate inspection lists for the various area offices.
Each month, Dodge provides a list of planned projects, and CIRPC, using econometric models, predicts when sites on the list will be active. From the active-site list, a random target list is generated and forwarded to each area office.
The problem arises from the fact that each project on the target list has several contractors who work the project. Thus, an OSHA visit to one project can result in the inspection of several companies.
“Of course, OSHA wants to demonstrate that it is active in the enforcement arena,” says Schneider, “and the easiest number to generate is total inspections. When an inspector goes to a single site, he or she is hoping that several contractors will be working. That way, more than one inspection can be conducted during the walk-through.”
Large Companies Over Included
Trying to ensure that more than one contractor will be present, OSHA area offices provide the CIRPC with a “deletion criterion” that restricts their random site inspection list by minimum project size, measured in dollar value. On larger projects, the likelihood is greater that more contractors will be active on the inspection date.
Weil believes the bias toward larger sites made sense during OSHA’s early decades because it facilitated the introduction of standards to a construction industry that previously had none. By hitting the largest companies, OSHA ensured the most bang for its buck by improving work conditions for the largest number of workers.
However, studies show that once large companies accept broad compliance with new standards, their further targeting becomes counterproductive. Today, says Weil, “Large national contractors have a lower percentage of inspections with violations compared to inspections conducted at all other construction establishments.”
In his consultation with OSHA, Weil urges the agency to move away from its present focus on project size in target selection.
New Ideas in Targeting
Weil recommends more reliance on project type targeting. Using data collected over several years, OSHA could “identify a subset of project types in a given region that have had higher rates of violations than others for the past few years.” Then, the Dodge/CIRCP system could be directed to over-sample for those project types.
Another focus might be on the type of project management and the nature of end users. The accelerating shift away from general contractors to construction managers (CM) has safety implications that need more study, but reasons exist to think that use of CMs by some owners (say, developers hoping for quick sale as opposed to owners who will use the property, themselves) may lead to diminished focus on production quality and safety.
Weil also suggests that OSHA employ a reverse-weighting system that would raise the probability of smaller projects being selected.
Worst-offender targeting also makes sense. However, a new database, linking Bureau of Labor Statistics fatality data to specific projects and contractors in the Dodge/CIRPC lists, would have to be developed.
One key area that currently is left out of the Dodge/CIRCP equation is residential housing construction. Because the Dodge system is designed to serve contractors looking for projects on which to bid, it has little reason to follow the residential market because those development deals usually emerge without a bid process. Also, from OSHA’s point of view, residential inspections are inefficient because the projects are difficult to identify, fast-moving and, frequently, have only a single employer involved. Weil notes that, regionally, the home building sector is consolidating. This may facilitate the targeting of larger homebuilders in the years ahead.
“OSHA’s construction targeting system has problems,” say Schneider, “mostly because it fails to get to the smaller companies. Whether large or small, LIUNA’s signatory contractors, as union employers, have confidence that their workers, safety programs and risk management systems can withstand the heat of OSHA enforcement. They’ve accepted OSHA regulation and have made the most of the opportunity to employ its standards. It no longer makes sense to keep the focus on big companies, and the LHSFNA encourages OSHA to find a way to target more of the smaller contractors where the worst problems remain.”