Time & Attendance
By Max Mihelich
Jun. 30, 2014
Ed Foulke is the former head of the Occupational Safety & Health Administration.
A construction worker in Tennessee stood halfway up a 3-foot ladder at his work site. He lost his balance, fell backward and landed headfirst. Although he only fell about 36 inches — a seemingly safe height — his injuries proved fatal.
The unfortunate incident occurred in 1980 when a young Ed Foulke was working as a labor and employment attorney at a Greenville, South Carolina, law firm that represented the Tennessee-based construction company. Foulke was visiting the work site when the fatality occurred, and, as the only lawyer on site, he was walked through the post-workplace fatality procedures over the phone by a colleague back in Greenville.
It was the first time the future head of the Occupational Safety & Health Administration dealt with a workplace fatality — or even with OSHA, for that matter. From that experience, Foulke, who received his law degree from Loyola University New Orleans, learned “that people die very easily,” and it was one factor that pushed him into a career dedicated to improving safety in the workplace.
“It was a multilevel thing,” Foulke said about his decision to get involved with workplace health and safety. “I was helping people stay healthy and alive at the work site. I was helping the work site be safer, and helping my clients improve their safety programs.”
Through his work, Foulke, 61, who served as OSHA’s head from April 2006 to November 2008 under President George W. Bush, found purpose helping businesses remain compliant with the myriad safety regulations governing workplaces in the U.S., especially small- to medium-size employers.
While even large corporations must devote a substantial amount of time and resources to workplace safety compliance, Foulke and other safety experts contend that smaller employers often lack the ability to ensure such compliance is met. Whereas a large manufacturer may have its own safety department, a smaller company may only have one human resources administrator overwhelmed by a slew of other tasks and too busy to oversee employee safety.
“A lot of the small- and medium-sized employers can’t even afford to have anybody but one HR person doing HR, safety, immigration and benefits — all those different things. They can’t afford a separate safety person,” said Foulke, who is a partner practicing at the law firm Fisher & Phillips in Atlanta.
Mr. Foulke Goes to Washington
After his first encounter in Tennessee with OSHA in 1980, Foulke became involved with the agency’s regional work-site inspections in South Carolina. At the same time, he worked with the OSHA Review Commission, which is an independent federal agency that provides administrative trial and appellate review, and decides contests of citations or penalties resulting from OSHA workplace inspections. As a lawyer, he also defended clients’ safety violation citations.
Foulke, who grew up just outside of Philadelphia, also devoted a great deal of his time to Republican politics, particularly presidential elections. In 1980, Foulke was working for Lee Atwater, the controversial GOP strategist and later the chairman of the Republican National Committee, who was running Ronald Reagan’s presidential campaign in South Carolina.
After Reagan won the presidency, Atwater went to Washington as an adviser. At the request of Atwater, Foulke ran Reagan’s 1984 re-election campaign in South Carolina. And when George H.W. Bush ran for president in 1988, Foulke again worked for Atwater in the Palmetto State on the future president’s campaign.
Following the elder Bush’s successful presidential campaign, Foulke was asked to work in Washington and ultimately landed a job as the chairman of the OSHA Review Commission in 1990, a position he held for five years — three years under Bush and two years under President Bill Clinton — before returning to practicing labor and employment law.
Foulke said he received a call from the George W. Bush administration in 2006 asking if he would return to Washington to serve as the assistant secretary of labor for OSHA, colloquially referred to as the agency’s chairman.
Compliance Assistance and Cooperation
During Foulke’s nearly three-year tenure as OSHA chairman, his philosophy on government was the guiding principle for how he ran the agency.
“I think the government should help individuals, citizens and businesses comply with the law and be successful. I think our enforcement was as strong as anybody else’s in previous administrations. But my emphasis was on trying to help employers comply with the law and have a better safety program,” Foulke said. “Hopefully that would help them be more successful and reduce their injuries and illnesses, which means they’d be more profitable, more competitive and able to keep jobs here in the U.S.”
Under the Clinton administration, OSHA was ‘kind of like a small-town sheriff that would hide behind a speed-limit sign that was obscured by a tree, and then write tickets to people driving through town who were speeding because they couldn’t see the sign.’
—Bryan Little, former deputy assistant secretary at OSHA
The emphasis on compliance assistance was the continuation of a policy shift at OSHA that had been set in motion during the George W. Bush administration. According to a New York Times report from 2007, OSHA under Bush issued the fewest significant safety standards since the agency’s creation in 1970, and one of which was ordered by a federal court. According to a survey conducted by Compliance and Safety, a Delaware-based supplier of workplace safety training videos, OSHA issued 0.3 new regulations per year under the Bush administration.
OSHA defended this relative lack of activity by claiming workplace deaths and injuries decreased during the Bush years. Between 2001 and 2008, the workplace fatality rate fell to 3.7 percent in 2008 from 4.3 percent in 2001, which was the lowest rate since the data were first collected in 1992.
Bryan Little, who was one of Foulke’s two deputy assistant secretaries at OSHA, described the agency under Bush as being more employer-friendly than it was during the Clinton administration.
Under Clinton, OSHA was “kind of like a small-town sheriff that would hide behind a speed-limit sign that was obscured by a tree, and then write tickets to people driving through town who were speeding because they couldn’t see the sign,” said Little, the director of labor affairs at California Farm Bureau Federation in Sacramento. “We tried to change the enforcement activities of the agency as much as we could so that they weren’t so adversarial.”
In addition to a conservative political philosophy, perhaps one explanation for the emphasis on compliance assistance lies with the fact that under George W. Bush, OSHA’s full-time staff numbers declined. According to OSHA, in 2001 there were 2,370 full-time OSHA employees compared with 2,118 in 2008. For comparison, the agency had 2,239 full-time employees before the 2013 sequester went into effect.
Considering these numbers, Foulke’s emphasis on compliance assistance becomes clearer: enforcement has defined limits; assistance doesn’t.
Foulke said enforcement is a necessary part of improving workplace safety, but with a fluctuating number of OSHA inspectors, the agency is only able to perform a limited number of inspections every year. It was common for an inspection to uncover no safety violations, because, in Foulke’s estimation, over 90 percent of all employers want to, and do, provide a safe workplace for their employees.
Little echoed Foulke’s belief that most employers try to make sure their workplaces are safe. “You have to recognize that a lot of employers are more than willing to follow the rules if you’re willing to give them a reasonable chance to understand what your expectations are,” he said. “We wanted to be an agency that was more of a partner to employers, who want to comply with the law and take care of their employees.”
Foulke pushed compliance assistance through OSHA’s Voluntary Protection Program, which was established in 1982. He explained the program identifies employers who are “best of the best” when it comes to safety and health. Member sites include various General Electric Co., Lockheed Martin Corp. and Monsanto Co. plants.
According to OSHA, the program recognizes employers and workers in the private and public sectors with outstanding safety and health management systems, and that maintain injury and illness rates below the national average for their industries.
In addition to the Voluntary Protection Program, Foulke established partnerships with business and trade associations that represented large segments of the workforce to cooperatively establish best practices for safety and health. The organizations allied with OSHA distribute newly established best practices to their employees or members, providing an inexpensive way for OSHA to reach a wider audience than usual, Foulke said.
The potential shortcomings of OSHA administrative policies that emphasize enforcement are highlighted by the Voluntary Protection Program and organization alliances.
Similar to organizations partnered with OSHA, Foulke explained that companies in the program reach out to other local companies to help them improve their safety and health management systems. Member companies also encourage other organizations to strive for membership in the Voluntary Protection Program.
“You have current member-companies helping others be safer, so you’re ultimately protecting more employees,” Foulke said. “This way you could impact a much greater number of people than you could through general enforcement.”
Democrats and Republicans have embraced the program for the assistance it provides small employers in keeping their employees safe on the job. In his testimony before the House Education & the Workforce Committee, Jordan Barab, OSHA’scurrent deputy assistant secretary of labor, said the program is an “integral part of the toolbox the Congress has provided to OSHA” to improve workplace safety.
The position of assistant secretary of labor for OSHA is described as a thankless and difficult job served best by those with a sincere passion for improving worker health and safety. From what Foulke’s colleagues and independent sources in the safety industry said, he seems to have been a good fit for the job.
“When you take a look at Ed Foulke, he came in at a time with less than three years left in the Bush administration. It’s always a very difficult time to step into a role like that because the administration is already a lame duck,” said Aaron Trippler, director of government affairs for the American Industrial Hygiene Association. “The one thing you can say about Ed is that he was very passionate in making sure workers were protected in the workplace.”
As the decline in workplace fatality numbers during the second half of the 2000s show, OSHA was successful in its mission to improve workplace safety when Foulke was in charge. Not only did Foulke champion the Voluntary Protection Program and alliance programs during his tenure, he also implemented a succession plan at OSHA, which was the first for the agency.
Little praised his former boss’ ability to get involved with as many aspects of the agency as possible.
“A lot of the time he was as well-versed in the things that were supposed to be in my bailiwick as I was. I don’t think I could have done that,” Little said. “I don’t think I have the mental capacity to be aware and cognizant of as many things as Ed was able to manage at any one time. I think that’s what the agency needed.”
When asked what he thinks is his legacy as the head of OSHA, Foulke said he hadn’t really thought about it. After pausing for a few seconds, he gave a modest reply.
“We were outreaching to all different groups to improve safety all across the board, and making sure OSHA was able to provide assistance to employers to help them be safer, which in turn meant they were going to be more successful. That’s kind of my legacy at OSHA,” he said.
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