More On Ellen Widess’ Resignation as Cal-OSHA Head

Yesterday, we broke the news on our Fisher & Phillips LLP Workplace Safety Blog that  Ellen Widess had abruptly resigned as head of Cal-OSHA.  We reported:

September 4, 2013 08:57
by Howard Mavity

I just learned from Fred Walter at Walter & Prince LLP that Ellen Widess has apparently resigned effective immediately from her position as Chief of the Division of Occupational Safety and Health, and is taking another post. No specific reason was given for her resignation.  No press release appears to yet be out, but if accurate, this resignation could meaningfully affect the current approach taken by Cal-OSHA

Governor brown appointed Ms. Widess on April 4, 2011.  She replaced Len Welsh, a no-nonsense attorney who was known for his genuine efforts to bring the various stakeholders together and to work with all parties.  Ms. Widess focused on groups other than employers, and thus missed many opportunities for genuine collaboration.  An April 4, 2011 EHS today interview predicted such a change:

While Freyman credits current Cal/OSHA Chief Welsh with reaching out and attempting to work with all stakeholders in his role as Cal/OSHA chief, she said he often did so from an employer perspective and labor representatives are “eager to have someone in place who’s more responsive to the labor community and who will prioritize their concerns … .”

During Ms. Widess’ tenure, the Division suffered well-known funding issues, which further reduced its effectiveness, including  by limiting hires and investigators ability to travel.  Fred Walter, who cares about the Division, also observed that during her tenure, the number of experienced inspectors who left Cal/OSHA or sought reassignment significantly reduced the agency’s “corporate memory.”  Many of us have witnessed a similar brain drain as many experienced Area Directors and others have retired from Fed-OSHA.

Ms. Widess was a very visible supporter of  Asst. Secretary of Labor, Dr. David Michael’s, and the changes coming out of D.C.  Ms. Widess shared Fed-OSHA’s current emphasis on the “stick” of enforcement  and disfavored efforts such as California’s Voluntary Protection Program (VPP) construction program.

The effects of Ms. Widess’ departure remain to be seen.  Fed-OSHA has increased its influence over State-OSHA plans in the last few years, so broad changes may be unlikely.  Nevertheless, we are hopeful that the Division addresses a number of outstanding investigation procedural issues and considers how it can coordinate more with stakeholders, including employers, to better leverage its limited resources.

The Cal-OSHA Reporter confirmed the resignation and had quite a few more comments:

 Ellen Widess, chief of the Division of Occupational Safety and Health at the beginning of Gov. Jerry Brown’s administration, has resigned her post mid-term, effective immediately. Widess was widely unpopular with the business and labor communities and not very well respected within the agency according to multiple sources. Most business people in the Cal/OSHA community, which Cal-OSHA Reporter has spoken with, say the positions Widess has taken on AB 2774 as well as on inspections led to her unpopularity.

While no official reason has been given for her abrupt resignation, it did happen on her first day back from vacation. One labor representative told Cal-OSHA Reporter, “We have heard that she was asked to turn in her resignation.” Both employer and labor representatives were practically jubilant at the news. In fact, employer complaints about DOSH to the governor’s office are believed to have been a driving factor in Widess’ resignation, s/he says.  (Continue at Cal-OSHA Reporter).

Fred Walter, at Walter & Prince has speculated on possible changes which would improve operation of the Cal-OSHA plan and better harness employer resources to guarantee a safe workplace:

While the ramifications of Widess’s departure are still sinking in, we view the coming transition to a new Chief as a great opportunity to progress toward the goal of true respect and cooperation between the regulators and the regulated. As DIR Director Christine Baker recently told the AGC: “Our goal is to increase compliance with labor laws and not punish employers who want to abide by the law, so that honest businesses can thrive and profit in California.” We could not have said it better. To that end we offer some places to start:

  1. Return to using the citation notice letter (the Cal/OSHA 1BY) as it was intended to be used: As an invitation to dialog between employers and Cal/OSHA before citations are issued.
  2. Encourage that communication by announcing that the employer’s response to a 1BY letter will not be used against it either as justification for a reclassification of the citation or issuance of an additional citation, or as an admission against interest at hearing.
  3. Correct inspectors and DMs who do not review employer responses to 1BY letters in good faith.
  4. Encourage employers who “get it” by REALLY eliminating “gotcha” citations. There are plenty of companies former Chief John Howard referred to as “employers from Mars” who need citations.
  5. Say it publicly and to staff, say it often, and mean it: Inspectors have no quotas for written citations. Instead of assessing the value of an inspector’s work by its quantity, look to its quality.
  6. Free up Enforcement’s limited assets by having Consultation respond to non-serious complaint letters, with the power to refer employers to Enforcement if necessary.
  7. Allot resources more evenly between Enforcement and Consultation so that both can do their jobs more effectively.
  8. Use those freed-up Enforcement assets to go after the underground economy, which hurts both the State and employers who play by the rules.
  9. Change the rule that employers cannot avail themselves of Consultation’s services to seek advice on abatement while a citation is pending.
  10. Take advantage of our employers’ knowledge to educate inspectors before unleashing them to write uninformed citations.
  11. Reaffirm the stated goal of the VPP program that companies which achieve VPP status will be rewarded by being seen by Cal/OSHA as partners working together towards a safer California.
  12. Encourage the use of experimental variances where new and potentially innovative products and processes become available.

I certainly hope that Fred’s hopes are met.  After all, we’re all in it together when it comes to protecting workers.  Some conflict is inevitable between OSHA, employers and Labor … but some conflict is unnecessary.

Howard

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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