After Problems Plague Hawaii State Labor Agency, Feds May Take Over Workplace Investigations

BY MALIA ZIMMERMAN – On April 8, 2011, a violent explosion rocked a Waikele Self Storage facility, blowing out its doors and setting a nearby car on fire. The explosion killed 5 men employed by Donaldson Enterprises who were disassembling commercial grade cake-style fireworks inside a bunker.

After an extensive investigation of the ruins, the state Department of Labor and Industrial Relations recommended $415,000 in fines against the company. Jennifer Shishido, head of the state’s Occupational Safety and Health office, said the department investigators identified eleven potential causes for the explosion, each of which carries a penalty for violating health and safety laws.

“We have concluded that there were so many unsafe working conditions and work practices that could have caused the explosion. To continue efforts to find a single cause would neither be productive nor serve our mission of assuring safe and healthful working conditions for every working person in the State,” said Shishido.

Investigating unsafe working conditions in hopes of preventing accidents and fatalities like this is just one responsibility of the state Department of Labor’s Hawaii Occupational Safety and Health Division (HIOSH).

But the federal government, in two reports issued in 2009 and 2010, noted the state department is understaffed, untrained, underfunded and not keeping up with inspections – and apparently not much has improved since then.

That has led the U.S. Department of Labor’s Occupational Safety and Health Division to discuss “concurrent jurisdiction” with the state this year, which means the federal agency may take over many of the state functions. However, both the state and federal government officials involved are refusing to release details about the plan.

“There is a lot of talk and rumors and I think OSHA themselves are in turmoil on what to do. They threatened over the years but did nothing. Now they know they must do something but they don’t really know what and they want to ‘appear’ to be working with the State,” one source close to the issue said, noting national OSHA officials will meet with the state director sometime this week.

The governor’s office admits discussions with the U.S. Department of Labor are ongoing but won’t provide details.

Donalyn Dela Cruz, Deputy Director of Communications for the Office of the Governor, said: “The Abercrombie Administration is in discussions with federal OSHA to find solutions to not only restoring positions but significantly improving the state’s ability to assure workplace safety and health. Because we are in the process of learning what are the appropriate and most effective next steps, it is too early to provide any official statements regarding OSHA, at this time.”

Hawaii Reporter contacted the U.S. Department of Labor in March but received no response other than an acknowledgement of our inquiry. After follow up earlier this week, a spokeswoman sent an email saying the agency still won’t answer our questions.

“At the request of the governor’s office, OSHA has been in discussions about how we can best help HIOSH fulfill its mission of protecting Hawaii’s workers. None of the details have yet been settled and discussions are continuing. We don’t have anything further we can share at this time; we have not provided information to any news outlets,” said Deanne Amaden,
the Regional Director of Public Affairs
for the U.S. Department of Labor.

The state agency charged with ensuring safety in the workplace through unannounced targeted inspections, sanctions, abating potentially harmful or fatal conditions; responding to complaints, investigating fatalities and catastrophes and protecting workers from toxic or harmful agents, received 1,355 complaints in FY 2010.

A federal monitoring report produced by the U.S. Department of Labor between October 1, 2009 and September 30, 2010, notes HIOSH’s staff was cut by 60 percent because of budget challenges and furlough days instituted under Gov. Linda Lingle. As a result, the state lost money for its program – 39% of HIOSH’s grant was de-obligated, the report said.

A 2009 federal report warned the Lingle administration about its deficiencies: “The Hawaii program has significant program deficiencies, which raise questions as to the State’s ability and commitment to operate an effective enforcement program. Many of the performance problems appear to be the result of staffing and funding cutbacks. It is not clear that the state has a plan to address these problem areas and in fact is deobligating an additional $600,000 (or one-half of the Federal funding) this year. The state must develop a Corrective Action Plan that presents reasonable plans for expeditiously improving the status of the State plan.”

Gov. Linda Lingle was informed in a letter in September 2010, that the federal agency might take over the inspection division of the state agency, because state inspections were down to just over 400 the year prior, a considerable drop from years prior, and the staff, mainly the compliance officers, were not trained properly.

Another report released in 2010 by the U.S. Department of Labor said “The state’s overall implementation of its enforcement program for 2010 has been poor due to budget cuts and reductions in force. Federal OSHA corresponded with Hawaii about the possibility of reassuming concurrent enforcement authority at the end of FY 2010.

After the 2010 elections, newly elected Gov. Neil Abercrombie pledged to get the agency back on track, and he refilled many of the positions, the 2010 federal report said, but the agency has been plagued with turnover and other management and training problems.

The 2010 federal report said: “The labor department has restored most of its vacant inspector positions. But inspectors who investigate workplace safety and health require special training and certification that can take months or years, so employees said they suffer from a lack of expertise among new hires and have only one branch chief out of five supervisory positions to help train others.”

This and many other challenges have led to many gripes by both the federal labor department and some businesses and labor unions about HIOSH, some of which are documented in two evaluation reports:

• Complaints are not responded to or not responded in a timely manner;
• Investigations of complaints and fatalities by inexperienced and untrained compliance officers;
• The failure or inadequate protection provided for our public sector employers;
• Lack of involvement in the process by the employee representatives and unions;
• Lack of any inspectors on Maui and Kauai.

Federal staff could work with local staff until Hawaii’s inspectors are trained and prepared to take back the enforcement and training action responsibilities or the takeover could become more serious.

While discussions have focused on administrative roles of HIOSH, and when and if the federal agency will take those over, there are issues surrounding worker protection, which critics maintain are being ignored.

Hawaii Reporter asked several questions, none which were answered, including how OSHA’s takeover will impact employers and workers in Hawaii; whether federal or state rules will apply and which takes preference; whether HIOSH or OSHA will be conducting inspections for safety at worksites; how OSHA taking over will impact federal funds coming to Hawaii; and whether local staff has been notified.

In addition, there is a question of whether HIOSH will still be in charge of inspecting government facilities.

Critics say since these decisions impact virtually all employers and employees in the state, whether public or private, and there needs to be more transparency in the process.

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