Fixing the Fissured Workplace

By Ed Rutkowski

Salt Palace Convention Center, Salt Lake City (June 2, 2015)—Two high-ranking officials with the United States Department of Labor provided a comprehensive review of the health and safety implications of the changing nature of work today at AIHce 2015. David Weil, administrator of OSHA’s Wage and Hour Division, and Jordan Barab, deputy assistant secretary of Labor for OSHA, discussed the challenges of enforcement in the age of the “fissured” workplace—a term that signifies the fracturing of the traditional relationship between workers and employers.

Weil and Barab were joined onstage by AIHA President-elect Dan Anna, who moderated the discussion.

Weil explained that the term “fissured workplace” originated from a conversation he had with his wife, a former geologist. After he described to her the tendency of modern employers to “shed” aspects of their business that do not fit their core competencies, Weil’s wife suggested that the phenomenon was similar to the way that fissures spread in geological formations. As in geology, once fissuring starts in a business, it tends to continue, Weil explained, with the “shed” activities breaking into even smaller entities that are then contracted and sub-contracted to other businesses.

The problem, Weil said, is that many employers are identifying the protection of their workers as a non-essential activity that can be shed.
While the fissured model can make a business more attractive to its investors and customers, it can have deleterious effects on workers. Barab identified the cell tower industry as one where multiple layers of contractors have made it difficult for OSHA to determine which employer is ultimately responsible for protecting workers’ health and safety. For example, while the workers themselves may be employees of Verizon or AT&T, the towers are owned by other companies.

"Who actually is responsible depends on the situation, and it can be a puzzle for us to figure that out,” Barab said.

Weil and Barab agreed that some companies are using the fissured model cynically, as a way to protect themselves from liability and avoid legal responsibility for workers’ health and safety. In cases where a violation has occurred but OSHA cannot establish a company’s legal responsibility to protect workers, the agency is turning to alternative ways to influence behavior, Barab said. For example, when OSHA distributes press releases announcing citations under the Occupational Safety and Health Act, it will identify the company at the top of the chain, even if that company is not the one being cited.

Some companies respond to this kind of public pressure in order to protect their business, Barab said: “They don't want their brands sullied. Once we show that they're at risk for that, they’re ready to come to the table.”

The shedding of “non-essential” activities, if taken to an extreme, can even have deleterious effects on a company’s bottom line. “You lack a coherent view of the whole organization if you go into hyper-fissuring,” Weil said. He questioned how such companies can accurately assess business risks: “Ultimately, is the shedding undermining the core competency or putting [the business] in a more vulnerable position?”
Weil also suggested that companies that shed health and safety activities for business reasons should take a hard look at the economics of their decision making.

“If you were doing an activity with your own employees last year and it cost you 25 dollars an hour to be compliant with the law, and now you've fissured it out and it costs you 10 dollars, shouldn't you scratch your head and say, gosh, how did they do it at 10 when it cost us 25?

“Businesses are incredibly creative about how to monitor all these other things they care about,” Weil said.

For Barab, OSHA’s enforcement challenges in the era of the fissured workplace stem partly from weaknesses in its foundational law. When the OSH Act was passed, many workers belonged to unions and felt empowered to exercise their rights, he said. Today, the workers most affected by the fissured workplace are temporary workers, who may have language barriers and uncertain immigration status.

“It's a very different world,” Barab said, “and yet we're operating under the exact same law.”

Ed Rutkowski is editor in chief of The Synergist.

View more Synergist coverage of the conference on the AIHce 2015 Highlights page.