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Dan Leacox

Director, Greenberg Traurig law firm, specializing in government affairs

An important voice for employers in the Cal/OSHA regulatory process, Leacox is a key participant in rulemaking efforts.

Dan LeacoxResume: Leacox is a non-lawyer, government affairs specialist with Greenberg’s consumer compliance team, representing chemical, material and product manufacturers. He lobbies on behalf of clients on occupational safety and health issues, as well as pesticide regulation, green chemistry and Proposition 65. He has lobbied and testified on legislation setting permissible-exposure limits and reforms of the citation process through AB2774. And he helped obtain amendments to the outdoor heat illness rules. Prior to Greenberg Traurig, he worked as regulatory lobbyist from 1990 to 2005 with Livingston & Mattesich law firm before it merged with Greenberg Traurig.

Certifications/Designations: Leacox co-authored the book “The Destiny of Freedom, A Manual for the American Citizen.”

 

Q&A:

 

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

Number one is the underground economy. It’s a very large issue and not new news. Bruce Wick at CAL/PASC has been beating this drum for years regarding the construction industry. He talks about contractors who cut corners on safety so they can outbid others on contracts. Generally speaking, we have people who have opted out of the system. They are difficult to regulate because their mind-set is to avoid it. The state has several programs designed to get at the problem. Nevertheless, it is a continuing problem.

To some degree, the problem grows with each new regulation. The more we regulate, the more people we drive into the underground economy. Many employers work close to the margin. Some may have to choose between compliance and staying in business. Noncompliance is cheaper, at least in the short run. It gives them a price advantage over the compliant employers and that fact has the compliant employers up in arms. Not a good situation.

 

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

One thing that could produce a great leap forward would be more emphasis on success metrics as opposed to failure metrics. For example, are injury and illness rates down because production is down or because production is being accomplished more safely? The emphasis has been on failure metrics such as injury statistics. Put a production number over the top of that and you have a success metric such as the amount of product per injury. By measuring success as well as failure, you get a more complete picture and better answers. You also get a more productive mind-set. Nobody is in business to prevent failure. They are in business to achieve success. So success metrics put the regulator, the employer, and the employee on common ground.

 

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

I can’t really speak to that. I would be guessing. The only thing I can say with confidence is that all jobs are not created equal. If a disproportionate number of Hispanics/Latinos are in higher-risk jobs, they are going to suffer a disproportionate number of injuries and illnesses. Naturally, Cal/OSHA will think about ways to reduce the risk in those jobs. But we shouldn’t forget about the importance of upward mobility in a land of opportunity. Are safer, better-paying jobs available to move up into?

 

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

a. Should enforcement be increased?

b. Communications

c. Training for inspectors?

That is a difficult question to answer without walking in the shoes of Cal/OSHA management. I know that Cal/OSHA is doing the best it can with limited resources and has stepped up its training to achieve more consistent enforcement by its inspectors. Compared to many agencies, Cal/OSHA has a good record of communications with all stakeholders, but it can always improve. Otherwise, more love. More love always works.

 

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?

That is one of those “Have you quit beating your dog?” questions. I would have to amend the statement of the problem to eliminate the general reference to all employers. I would agree that injury and illness rates are higher than they appear because some employers find ways to hide injuries. All employers? No. Some employers? Yes. They’re still a minority. Is underreporting a problem with those employers? Yes. Is it a serious problem? It’s a growing problem. This takes us back to the underground economy. We’re talking about employers who have opted out. They are best addressed by addressing the underground economy. The answer is better enforcement of fewer rules.

 

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

I am hoping it will be performance-based code for elevators and other conveyances. That is something the division has been talking about and working on for a while now. It certainly is groundbreaking. The current elevator code is very prescriptive. In many ways, it tells the manufacturer how to build an elevator. The performance-based code sets safety objectives and tells the manufacturer what it must do to prove the elevator is safe. It doesn’t eliminate the prescriptive code. The prescriptive code becomes the main way of meeting the safety objectives of the performance-based code.

Conveyance technology began to change rapidly about 10 years ago. Most of the changes advance safety, energy efficiency, or both. California will need the performance-based code to absorb that new technology at a reasonable pace.

I believe the rest of the country is looking to see what California will do about this. Elevators are regulated on a state-by-state basis. There is no Fed OSHA regulation of conveyances. So California is in a position to lead the rest of the country on this issue.

 

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?

I have the same question. Much depends on how AB 2774 gets implemented by Cal/OSHA and interpreted by the courts. In particular, much depends on the interpretation of a serious violation as newly defined. That has yet to play out.

 

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?

I would say yes. There should be more of an eye to compliance. That was my earlier point about management by success metrics. No one is talking about eliminating failure metrics. Just put more emphasis on the success side. Are you looking to encourage success as well as prevent failure? The punishment side is limited. We need both to work.

The emphasis on compliance must start in the making of the rules. We must have the involvement of those who must live by the rules. Employer participation generates more workable rules and employer buy-in. That is our good start on compliance. When we develop rules outside that scrutiny, the rules tend to be unworkable and unsupported by employers. The compliance approach is very successful when it starts with consensus rules. It generates safety and health.

 

What about safety do employers struggle with the most?

Outside influences and personal risk factors. A lot depends on the people coming to work -- both supervisors and employees. What are their attitudes about safety? Are they alert? Are they healthy? Or do they have some predisposition to injury or illness? Did they come to work upset from a fight? Did they drink the night before? What are their personal risk factors? They vary day to day as well as person to person.

Also, different groups of workers have different cultures, including different mind-sets about safety. How many employees want to wear a respirator? This is a personal risk factor that employers struggle with big time. People come to work with different risk tolerances. They spend the weekend pruning a tree, driving a car, and skiing down a mountain for beauty, convenience and amusement, then on Monday they’re supposed to ratchet down their risk tolerance for work?

The employee side of the community doesn’t like to go there. They want the onus on the employer to make the environment safe. But that is a limited answer. Systems don’t guarantee safety. People still have to follow the rules and think for themselves. They aren’t robots. Plus, they have certain expectations of privacy. The personal risk factors may remain unknown. So risk will always be subject to personal, daily variation. Who doesn’t struggle with this?

 

 Are there reliable and knowledgeable training people available?

I know they exist. I don’t know about their availability.

 

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

The particulars really depend on what industry you’re talking about. The broad statement I could make is stick to the basics. They always remain the most important. There is a natural tendency to put one’s attention on the latest, greatest thing. But the same old thing got that way because it was yesterday’s low-hanging fruit -- the obvious thing you could do to dramatically improve safety. Be wary of the next big thing robbing time, attention and other resources from the same old thing. No doubt, safety committees deal with this all the time.

 

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

I read “Cal/OSHA Reporter,” of course. Also, the folks I work with on a regular basis are very involved in safety and health issues, so my involvement with them keeps me very well informed. I attend a lot of meetings. After that, I find and read issue-specific information as needed. I get it from my clients. I use the Internet and sometimes visit agency websites.

 

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 have been serving business clients in California for over 20 years. I started with the law and lobby firm of Livingston & Mattesich. In 2005, we became the Sacramento office of Greenberg Traurig. I first started working occupational safety and health issues in 2003. I liked the combination of law and technology involved in many safety and health issues.

I also like being a contract lobbyist. My mix of clients includes California employers, but also includes many manufacturers with heavily regulated products -- consumer products, chemical products, elevators, etc. Each new client is an opportunity to learn about a new corner of the world that I didn’t really know before. For example, getting to know the elevator industry has been interesting.

One reason I stay interested is that the people involved in this area are likable. Many are health and safety professionals with a dedication to taking care of others. They have a good heart. Many are advocates in part because they like to communicate and can get along with others. That makes them pleasant to work with.

 

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