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Fran Schreiberg

Attorney, Kazan McClain Lyons Greenwood & Harley

Schreiberg is a passionate and vocal advocate for safety and workers' rights. She's not afraid to challenge the status quo and she has influenced a generation of worker advocates.

Fran SchreibergResume: She began her legal career defending various forms of resistance during the Vietnam antiwar movement and worked as a criminal defense attorney. From 1980 to 1984, Schreiberg began working in safety for the California Department of Industrial Relations, and managed the Criminal Bureau of Investigations at Cal/OSHA, prosecuting companies when workers were killed or maimed due to unsafe conditions. From 1984 to 1991 she worked for the Building & Construction Trades Council of California and joined the Kazan firm in 1991 to focus her practice on health issues in the legislative, regulatory and policy arena.

Schools:  Schreiberg received her law degree from New York University School of Law in 1972 and her undergraduate degree from Northwestern University.

Certifications/Designations:  Schreiberg has been active since 1984 in a variety of Cal/OSHA regulatory advisory committees, including asbestos, lead, diacetyl and other toxics, ergonomics, fall protection and illness prevention programs. She is a member of the Consumer Attorneys of California, AFL-CIO Lawyers’ Coordinating Committee, the Employment Law Section of the California State Bar and the National Lawyers Guild Labor and Employment Committee.

Q&A  

What are the top issues in California occupational safety and health today?

I think the most serious issue that we face is a lack of funding for the program. The budget situation here in California has been dire. All state agencies are reflecting that problem. If we had a reasonable budget here it would seem to me the agency could be funded to meet its own current vacancies. They are I believe down by 50 inspectors and perhaps even 100 staff members. It is a small agency to begin with. I think only about 200 designated inspector slots. I don’t know what the whole agency is, but if you’re down 50, that is a serious matter.

On the whole, we want the ability to follow up on complaints and also have targeted inspection program and necessary emphasis on special programs such as heat and lead. You have to have a staff to be able to carry that out. And you don’t have it. I think that if I was able to structure where the agency should go, you have an agency divided in three parts, an enforcement arm, a standards setting arm and a judicial arm. In terms of enforcement, I think we need to be able to change the relationship between enforcement and folks out there in the regulated community. I am most must focused on the workers who are subjected to these unsafe conditions.

I think some of the changes that need to be made are a greater ability for workers and their advocates to interact with the agency in a way that allows them to not just file complaints but to have a way that they can function in their workplaces with the authority of the agency behind them. By that I mean workers need to be the ones, because the eyes and ears at the workplace, they need to be trained and have not only the ability to do that training but to stand up and say that something isn’t right or safe.

We have a system now where they don’t get that training from employers. And they certainly are not backed up by the agency when they do take a risk and report unsafe conditions. There are virtually no cases, if you look at the record where workers have complained and then suffered retaliation, those workers are gone. They are disposable -- just as those workers who are injured or killed on worksites are seen as disposable. They are just replaced.

The workers’ compensation system does nothing to help them. There needs to be some greater way to, or some more effective way to have workers participate meaningfully and be protected when they do participate meaningfully. You can’t have meaningful participation without having some knowledge.

One of the most effective ways of doing it from my experience is with joint labor/management committees. When I worked for the building trades many years ago, we had several of these projects where we had labor/management committees on big construction jobs. Those were extraordinarily successful. Obviously, we had union representation on one side, and unions who were able to work with the stewards on the job so they had that backup and we had that legal protection through our collective bargaining that we’ve ever seen through our labor commissioner’s office.

There should be a way of making this work. I have been doing this from 1980 when I first got involved in safety issues. I’ve talked to so many workers and they’re on sites. One thing that is absolutely clear to me. There is virtually no such thing as an accident. I spent a couple years at Cal/OSHA reading virtually every single report on fatalities in California. Combined with the people I talked to, I realized that somebody on that worksite realized that that so-called accident was going to happen.

Either they spoke up and were told to shut up or they didn’t speak up at all because they knew that that was going to be the result or they would lose their job. If you change the way worksites function and the way government functions to back up that change, then every worker on the worksite becomes a health and safety inspector. And every one of them has the knowledge and the ability, as well as the right to speak up and say this really isn’t safe and we shouldn’t be doing this.

These guys and gals, even for those who aren’t highly trained, they know that something is wrong. I read those reports [and] I would say that 99 percent of those reports somebody knew that the so-called incident was going to occur. So in terms of the specifics, there needs to be legislation that focuses on getting more balance between workers and their employers in terms of workplace health and safety. There needs to be more labor/management committees. You can reward employers for it. They are going to be rewarded because their injury rates will go down, but I also think you can reward them with discounts for their workers’ comp premiums if they have one of these committees.

You can reward them in other ways if they have one of these committees. Then you also need legislation that really makes it clear to employers when they retaliate they will have to compensate the worker that suffers that retaliation.

Not just have a situation where they are assigned to oblivion. So those are two major areas I would like to see some change in the aspect. In the standards-setting arena, I think we need to improve the heat illness standard. Yeah, we have one of a handful in this country. But much of that regulation brought together pieces of what was in other regulations, like water and so forth. The real key to preventing heat-related illness and death, besides the existing regulation that we did have about water. And our regulation added shape, thank goodness. But the real issue is breaks. People who work in those hot environments, and this has to cover indoors as well as outdoors because there isn’t any difference between heat indoors or outdoors. Let me back up and say this, it isn’t rocket science. The Coast Guard and the ACIH [American Conference of Industrial Hygienists], which is not known as a radical organization, has their own model. They have these proposals about how to protect people from these injuries and breaks are the key element. It depends on how strenuous the work is, but when people are working in the fields or in construction and it gets hot or it gets humid, people need to have breaks. And you can figure this stuff out. Particularly in construction and agriculture when much of the work is done as piece-rate work. You have to have mandated employer-controlled breaks. If a farmworker has to feed his family and everyone else continues working, even if that farmworker doesn’t feel well, she’s going to continue to keep working. Then you have the situation you had in Fresno area where that pregnant young woman died because of this heat-related illness. You have to have mandated breaks. So I think in the standard-setting arena, that would be at the top of my list.

I would also love to see a real attempt to protect workers from toxic materials. We have a really strong statute already. It is supposed to protect people from these toxics for their 40-year working life, who are exposed to these materials. We have folks who are exposed not only to carcinogens and toxic materials that cause birth defects and reproductive harm, but sensitizers so people end up with really severe breathing difficulties that affect their life.

Going along that whole range of things, you need to use science. And the science is there. It has been pulled together by the environmental analysis, particularly here in California, where we have maybe 100 scientists who work on this stuff with our EPA here.

They work on quantitative risk assessments for you and me and the environment -- that we shouldn’t be exposed to a certain amount of toxic materials in the air. What is considered a significant risk is when someone keels over in a heap. When you look at that material, there is no reason that can’t be applied to the workplace. In fact, most of the hard data for the environmental folks to use for calculating these exposure requirements comes from workplaces. Because, you know, you’re not running around exposing people or conducting experiments. So where do you get your human data? You get it out of people dying in the workplace.

In California, the United States and around the world, that aggregated data becomes the human data that you use to create and evaluate these human exposures. That’s important. I don’t think you have to have human data. There is a lot of ways you can extrapolate from animal data that is perfectly sound. But we need to use what’s out there. And when there is a quantitative risk assessment that should be translated into an occupational exposure.

Even I can do it and I’m not a scientist. You sit there with a pencil and paper and you can figure you how to go from 365 days a year down to eight hours a day, 50 weeks a year. You can figure that out. Yeah, workers will end up being exposed to more and you may want to have additional safety factors in an area where they are working harder and breathing more stuff. You can put those safety factors in there.

People ought to be protected and it should not take decade upon decade before there are proper exposure limits. And then you have to educate the employer because, again, there are not enough inspectors to go out and inspect every workplace.

I think the decent employers will comply, and that’s better than nothing. You set a standard and you’ve got decent employers to comply. Even if you don’t have enough inspectors to do everything, you’ve at least made it better for those folks.

I look at this as every step we can take, we should take. I also think that in terms of toxic exposures, it is inexplicable to me, is why the folks who are regulators in occupational safety and health think that the law, the Supreme Court, has said it is okay to kill one in 1,000 workers. That is not what the Supreme Court said. In fact they said it is a significant risk for one in 1,000 workers to suffer injury and death. On the other hand, perhaps one in a billion would not be, but somewhere in between it would be a significant number of people. I don’t understand why everything reverts to one in 1,000, so that kind of standard setting. I think we need to have noise regulation for construction. I think we need to finally have rules that govern violence in the workplace. I think there are a certain number of people who are dying as a result of violence in the workplace, whether it is because a patient attacks a health care provider or whether you have a single person working alone in a convenience store. It is not beyond the control of the employer to make the workplace safer for those folks. This is not rocket science.

Then getting to the appeals end of things, the judicial system, we need to have a change in attitude in California. I think we are getting there with a newly constituted appeals board that is trying to incorporate the needs of worker advocates.

But worker advocates need to be able to fully participate in these appeals. We need to be parties, not just somebody at the whim, or gee whiz, I’ve had enough of you. Or I’ve heard enough of you and therefore don’t want to hear from you in this hearing you’re interrupting things. Or I don’t want you to participate in the settlement discussions. I think the worker representative, and not a lot come forward in these cases, most are dealt with by the employer and Cal/OSHA prosecutor. But when the worker advocate gets involved, I think they need to fully participate. All the way through the process -- they need to be treated decently. I’m talking off the top of my head.

The overarching thing, going back to enforcement, there needs to be a better targeting system. I’d like to see a reinvigorated criminal prosecution program. That’s what I worked on in the first Brown administration. It was to reinvigorate the prosecution program. I may not believe the run-of-the-mill burglar is deterred by much. But white-collar criminals, you do have a significant deterrent effect. When one of these high-up managers, and I mean as high up as you can go, is confronted with criminal charges and prosecuted and goes to jail, that case has a significant deterrent effect. And this should not just be for fatalities. Because fatalities are the situation that is the same as the near misses, because that was the situation where somebody was there and was killed as a result of the unsafe conditions.

We need to be prosecuting companies who cut off finger after finger and hand after hand in machinery.

Who after two or four inspections by Cal/OSHA have different machines and different hazards every time, but they just don’t have it together to protect workers. They don’t care to protect workers. Irrespective of the fact that they killed somebody, these people need to be criminally prosecuted because these people don’t get it. So I think there needs to be a bit of a different focus for these criminal prosecutions. But I do think we need to reinvigorate criminal prosecution.

 

Injury and illness rates continue to decrease, with some exceptions. What's the next great leap forward in occupational safety and health?

First of all, those numbers are so inaccurate I can’t even imagine why anyone would rely on those. There have been several articles, peer reviewed in articles, and journals talking about how significant the underreporting is regarding injuries and illnesses. That data by the way doesn’t even touch illnesses. It is just injury data. But if you look at the degree of underreporting, some of it, one of these studies was up around 70%. It’s ridiculous. So I don’t look at these as being, gee whiz, we’re doing better because that rate has come down. I don’t think we’re getting a true picture, because the difference between a near miss and an injury or fatality is by the grace of God. We don’t report near misses, do we? Do I agree with that data? No. Do I think that’s the way we should judge if we’ve been successful? That’s only one way to judge. If we had the proper data, if we had the illness data, it would solve the underreporting problem.

 

One group – Hispanics/Latinos -- suffers a disproportionate number of injuries and illnesses. Why? How should California address this problem?

I think, obviously, some of it can be language issues. But I think if you look at data, again I worked on the construction side. My memory was that the statistics often indicated that people who were new on a jobsite had higher illness and injury rates than someone who had been there for some time. I think that is because of the demographic of our low-wage worker community out here, the Hispanic workers are the newer workers. That may be part of it. Language may be part of it. They are doing the least desirable and dangerous jobs. All of that may contribute to that data. How do you address that? You make all workplaces safer.

You make sure that training is in a language that a worker can understand. And that people are trained before they’re staff and that they can stand up for something they think is not safe and they are not pushed with this constant speed-up. And it is not just piece rate, it is every job. I must have read half a dozen horrible injuries and said why did that worker do that? They actually did something that was unsafe because they did something they thought would help their employer. They put their hand in a machine to unjam it without realizing there were requirements for lockout. They thought they were doing it in a way that would be quicker and therefore would help productivity. People don’t throw themselves into machines in order to commit suicide. They do that because they think it is the right thing to do. That happens because that is part of their culture and because their employer has not said not to do that.

 

The Injury and Illness Prevention Program is the basic safety requirement for California employers. Now Fed-OSHA is working toward adopting its version of this requirement. Does the California IIPP standard need revision or is it fine the way it is? And if it needs revision, how so?

It could be improved. About a year ago, we did a historic series of programs around the country where people talked about IIPP for the federal folks. I think our system needs to be improved. It needs to include more worker protection.

In our IIPP, one program has to have seven or eight factors; one is to have the person in authority with responsibility to implement these programs. I think authority needs to be defined so we have people high enough up in the management structure. That reflects a management commitment. I think that it also requires an allocation of funds by management.

Point two -- we have a system that ensures employers comply with safety and health. I think this is the area we recognize the safe work practices. We need to make clear that, what’s known in the trade as behavior based-programs, are not permitted. Those programs that are blame-the-worker programs, the worker did the wrong thing. Those can’t be the focus for a system that your business complies. Nor can a system that if your unit doesn’t report any sickness or injury you get a belt buckle or water bottle or a color TV. Then guess what, then the workers themselves don’t report the injury. If you’re rewarded for not reporting them, or if you’re blamed and fired for not reporting them, both of those are not proper ways. Neither of those systems should be permitted. The third piece is including a system to communicate with employees in a form readily understood by the employees affected.

I think we need to say, particularly in California, that it is in a language that they understand. It also has to include the notion that it has to be timely. And it has to have a two-way street for communication and it is not just a suggestion box either. There has to be some improvement there in terms that our systems of communicating, for receiving information from those employees.

Next are having procedures for identifying workplace hazards. I think we need to improve our regs there by including, defining what is a job hazard analysis. That’s what they’re talking about here. And also we’re talking about schedules and periodic inspections. They have to be regularly scheduled. We have to make sure that all that is communicated back to the workers. That would be an important change.

They have a section for a procedure to investigate injuries. And I think that procedure has to be timely. Again, you don’t just investigate the injury or the illness or the fatality, you investigate the near miss. Because there by the grace of God someone didn’t die or get injured. And when you investigate these things, I think it needs to be part of this language. You need to determine root causes. And you need to communicate again to the workers the results of those investigations. I think those would make a difference. Then there is correcting the conditions.

I think we need to add a few words in our regs that add the controls and includes the chemicals substitution. We really don’t focus on protection of workers by talking about substitution for these unsafe chemicals. I think that is really critical.

Finally, the section on training, what we need is not just instruction on training but periodic retraining. And when the supervisors are talking about the training of supervisors, we have comments in the construction regs now that talk about tailgate meeting. We could incorporate those into our 3302. I think tailgate meetings when they are conducted well are really every 10 days and they are supposed to be two-way communications. That would be really good. So those are just some of my ideas on IIPP that I would change. It wouldn’t take a huge amount of effort.

 

 If you could change anything about Cal/OSHA, what would it be?

                a. Should enforcement be increased?

                b. Communications

                c. Training for inspectors

Again, what I would change is give them more staff and make sure they have a well-thought-out, targeted inspection program so we could prevent things from happening. I would reinvigorate the criminal prosecution program. Better protection for workers when they speak out.

 

Some observers say injury and illness rates are higher than they appear because employers find ways to hide injuries, or not record them. Do you agree this is a serious problem and if so, how should it be addressed?

I think it is a serious problem. We know it’s true. People are put on light duty. They come back to work. They sit around and then don’t report it to the workers’ comp system. They get shipped off to Mexico.

We have laws on the books that require people to do the right thing. I know these are really tough inspections. I know they are intense in terms of the amount of paper. It takes a lot of personnel time. I think that if you want to get a lot of bang for the buck, then publicize them. Maybe some of these should be the subject of criminal prosecutions. Then publicize it. Have some folks who deserve to be audited and have some significant penalties.

 

California  has a long history of crafting groundbreaking regulations that the rest of the country eventually picks up. What's the next one?

I think they are working on a lead reg. There is solid evidence that we need to change medical chemical protection. I don’t know what else they are working on at the moment.

 

 Will AB 2774 resolve the problems cited by DOSH on serious violations and provide a more equitable appeals system? If not, how should it be reformed?

Who knows? You know, we changed the language there in terms of what constituted a serious violation because we could not get the OSHA Appeals Board to follow what I think the law was. So we changed a word. Try to start with what, I consider a clean slate so they wouldn’t revert back to the inappropriate basis that they were using for what was a “serious.” They could do anything. God only knows. You can only hope.

Are they going to treat the inspectors any better? I don’t think the legislation is going to make that happen. I think the new constituents on the commission will try to make that happen because I think they are committed to having that occur.

All the extra paperwork that 2774 has engendered is probably driving the inspectors nuts. It has had at least 30 days cut off of their six-month statute of limitations. The worker advocates did not want that in the statute, but at that time, under a different political administration, the head of Cal/OSHA brought that into the mix. That was not us. I would just as soon do away with that. I don’t know what the employers are doing. It is a business now. To get a reg change like that, you hire a handful of lawyers who are making money off that.

 

Should DOSH approach enforcement with more of an eye toward achieving compliance, rather than looking for violations to cite? And if so, would such an approach work?

We have Consultation. That is the role of the Consultation Service, not the role of compliance. Consultation should do consultation. Compliance should do compliance. We’re talking about the Compliance Assistance Project. I have strong issues with those. I think those are inappropriate. If you want to assist the employer, and that’s fine to do, that’s why you have a Consultation Service. I understand there are Cal/OSHA people who are in enforcement that are perhaps more able to do this, but those people are compliance officers, they are not consultants. I think there is a lot to be had from good consultation, but it should be done by the Consultation Service.

 

What should Cal/OSHA do to help small employers create safe workplaces and comply with Title 8 regulations?

Again, I think their Consultation Service is doing a lot. I haven’t really done an analysis of what different things are needed for small employer. We’ve got model IIPPs. We’ve got all sorts of things the small employer can take advantage of besides, again, directly calling consultation. I think Cal/OSHA is doing a good job of that. They have good training materials. Good materials come out of the consultation side online.

 

What about safety do employers struggle with the most?
The biggest struggle for most employers is they don’t have a system for ensuring safety. It is not at the top of their agenda. It is not as important as the bottom-line profit.

The very first labor/management program…I set up 30 some years ago. I am not scientist. I didn’t go to safety school. I used material that the building safety department pulled together in Washington and that was contractual language. I’m a lawyer. I looked at that and said, “Hmm.” So we negotiated with this program, a health and safety program and used the language they had suggested. We got to our first meeting and none of us had a clue what to do. So I opened up the contract and started to read. It said: Who is the person on management side that is responsible? Have we got a person identified? Well, gee, we don’t. How do we get such a system? How would such a system exist? So we put a little time into it. Did it eat up the entire profits for this job? No. In fact we ended up having fewer injuries for this labor/management committee job than one would have expected. We just walked ourselves along using written materials. It seems to me employers’ biggest problem is they just don’t put in the time into doing it. They need to do that. It is not hard; it really isn’t. 


Are there reliable and knowledgeable training people available?

Yeah, sure there are. But again, a lot of this stuff is stuff they can figure out for themselves. If a worker knows what is safe and what isn’t safe to do, and they do know that, they know. So does the employer. You just have to talk to employers in workplace settings and they said, oh gee, I didn’t know it was unsafe for a person in an unshored-up a trench. When do you have that conversation? You’ve never had that conversation. They know. Do they not know a particular chemical is harmful? Let them look at the material safety data sheet, terrible things that they are. They are not the best things in the world. But there’s information on them and there’s an Internet out there.

 

What kind of training is the most crucial for employers to provide?

I think people need to be trained about how to do their job safely. What’s critical depends on the workplace. If you’re working with machinery that has to be guarded, then the critical training is guarding. If its lockout/tagout, then it has to be that. If you’re working with chemicals, then it’s that. What is the most critical thing that workers shouldn’t have to tell you what it is? Workers shouldn’t do things the employer has identified as being unsafe. And employers should guarantee that guards aren’t removed. And people can’t put their hands in machines because you have a system that has locks on it, adequate procedures and the workers understand that. You have adequate supervision, adequate retraining and adequate communication so workers understand that the employer really does have a commitment to safety. Because if that commitment doesn’t come through from the employer, the worker is going to understand that the employer’s commitment is getting the job done and having greater production. And greater production means you take shortcuts. Taking shortcuts means there are more injuries.

 

 What else do you read to get your occupational safety and health information?

I get all these emails. State Citizen has stories on health and safety that they send us. I read the stories in the press. We have a subscription to “Cal/OSHA Reporter.” I read that. We have a subscription to one of the federal ones. I pay attention to the information the standards board and the appeals board put out. Of course I keep up with the legislation that relates to health and safety. I’m part of a coalition on health and safety that shares things. The National COSH group.

 

How did you get started in safety? Was there any particular experience in your career that triggered your interest in safety? What’s interesting about it? What’s interesting about it now?

I got a call from someone I worked with when I taught law school in the 1970s. He called because in the summer of 1980 Jerry Brown had a packet of legislation addressing the control of toxic material. This fellow called me: Can you come spend the summer in the Governor’s Office on leave from the Ag Board and work on the legislation? I did. We passed the first Right-to-Know Bill in the country during the summer. There were quite a few other environmental, as well as health and safety, laws that were put in place. As I was working there, toward the end of the summer, the governor had a cabinet meeting and the head of the Labor Department called Labor Relations to talk about a big report that Cal/OSHA was not doing criminal prosecution on exposure to toxics.

I was a criminal defense attorney. I got hired by Cal/OSHA to increase the number of criminal cases. When I got there I was sucked into this world that was so significant and important. You don’t go to work to die. That was compelling to me. I never left.

I also became part of WorkSafe when the agency was decommissioned under, I think, Deukmejian. A small group of folks working with unions had a passion for health and safety and formed BayCOSH in Los Angeles, San Francisco and Sacramento. WorkSafe became a statewide coalition of occupational safety and health advocates, doing regular advocacy. I became one of the founding mothers of that organization.

I feel like I have the long view. I have 100 things on a to-do list before I retire. If I get 10 done, then I’m doing the best I can.

 

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