In 2007, a small bell-making company in East Hampton, Connecticut was inspected by the federal Occupational Safety and Health Administration (OSHA) after a workplace injury. The company was cited for serious noise exposure, failure to provide protective eye equipment and other violations.
The company’s manager, Doug Dilla, didn’t take well to being inspected, according to the report. Dilla “stated he would close his doors. [Dilla] does not like OSHA and made it clear.”
The report said the manager did not seem to want to improve worker safety at the company.
The next time OSHA showed up was in 2011. An anonymous complaint alleged numerous worker safety violations at the factory, and OSHA opened an investigation as part of a national program aimed at minimizing amputation risks.
Dilla was still manager, but by then, the company’s ownership had changed. Now, Bevin Brothers Bells was owned by Matt Bevin.
A selection from OSHA’s inspection at Bevin Brothers Bells in 2007. Document provided U.S. Department of Labor through an open records request
An investigation revealed that the company had several serious worker safety violations, including a lack of training and safety programs. As the complaint alleged, the power presses were indeed inadequately guarded. Federal OSHA issued a $25,000 fine, later reduced through a settlement to $12,600.
Bevin Brothers Bells’ history with OSHA was reported by Buzzfeed during Bevin’s run for Kentucky governor in 2015. At the time, he dismissed it as a non-story, and said the penalty was a money grab by OSHA. The reduced fine the agency ultimately issued was too small to mean anything, he said.
“They didn’t find anything that was actually a compromising of safety,” Bevin told a reporter from CN2. “It was all administrative stuff.”
The Republican and millionaire businessman would soon be responsible for appointing the secretary of the state Labor Cabinet in Kentucky, a state which runs its own Occupational Safety and Health agency.
While his Democratic predecessor appointed union leaders to the role of Labor secretary throughout his tenure, Bevin’s two appointees have been a former University of Kentucky and NFL football star and the owner of a sawmill.
Bevin declined numerous requests for interviews from KyCIR. But the governor, who ran on a platform of deregulation, told a reporter in 2015 that federal OSHA was “an unfortunate nuisance for many companies.”
“That’s sadly the cost of doing business in America — one of the costs I talk about when I talk about over-regulation,” said Bevin.
In his first three years in office, Bevin has put in motion his signature initiative, “cutting the red tape,” by rolling back many regulations that he says restrict businesses. This is the political backdrop as Kentucky’s Occupational Safety and Health agency has come under fire for failing to properly investigate worksites after an employee dies on the job.
Bevin’s pro-business agenda has taken off in the first few years of his governorship, supported by Kentucky’s first Republican-majority statehouse in nearly 100 years.
In the early days of the 2017 legislative session, Kentucky passed right-to-work, which allows workers to not pay union dues even if they work at a unionized company; eliminated the prevailing wage, which had created a minimum hourly rate for public works jobs; and created a sunset provision so all administrative regulations expire after seven years.
The 2018 session continued that trend with a reworking of the state’s workers compensation system that that shortened the amount of time some injured workers can receive benefits, among other changes. That bill also contained limitations on benefits for coal miners affected by black lung disease.
“We’re in an economy where these businesses are in business to make money, and maximize profits,” said Bill Londrigan, president of the Kentucky AFL-CIO. “You do that by cutting corners, putting people in unsafe conditions, not complying with the regulations — and claiming that they’re overly burdensome.”
State leaders say deregulation is intended to encourage a pro-business environment. Ashli Watts, a spokesperson for the Kentucky Chamber of Commerce, said pro-business efforts are good for all Kentuckians.
“We’ve have looked at a lot of red tape, things that have gotten in the way of businesses thriving, things that are unnecessary or burdensome,” Watts said. “But the Chamber has not advocated for anything that would lead to any kind of rolling back of regulation of anything that might hurt worker safety.”
But experts say the combination of pro-business and anti-union changes can have dangerous implications for worker safety.
“As those regulations get cut back, then workers after left without protection and if they are also in a non-union place, then they don’t even have the protection of a union,” said Laura Stock, director of the Labor Occupational Health Program at University of California at Berkeley. “All of these are contributing to the increased vulnerability of workers on the job.”
KY OSH Problems Are News To Lawmakers
Kentucky Occupational Safety and Health program (KY OSH) is facing the possibility of federal intervention for its handling of on-the-job fatalities. A federal audit issued in August found that KY OSH missed critical steps in nearly every single worker fatality investigation during a two-year period.
But this topic hasn’t been raised publicly by the governor’s office or any of the lawmakers charged with keeping a close eye on labor. Seven lawmakers from the House and Senate committees that handle labor issues, when interviewed by KyCIR in October, said they didn’t know about either the problems or that federal audit.
Sen. Alice Forgy Kerr, a Republican from Lexington, chairs the Senate Economic Development, Tourism and Labor committee. She said it’s hard to fix a problem legislators don’t know about.
“First, we would need to hear about it more,” she said after a recent committee meeting. “We would probably need … to bring some folks to the committee and get some questions answered.”
She said the next step would be legislative action, though she didn’t say what that action might look like.
Senate President Pro Tempore Jimmy Higdon, a Republican from Lebanon who sits on the Senate committee, said he hadn’t heard “anything negative” about Kentucky’s occupational safety and health agency.
“So my assumption is it’s being run the right way,” he said.
Higdon was not aware that the state’s worker safety program has been asked to create a “corrective action plan” by federal OSHA.
“I’ve seen them in the past be overzealous or punitive to business and industry, but they have a place, and they’re very important,” said Higdon. “We want to make sure all of our employees have a safe work environment.”
For some Democrats on the committee, the state of Kentucky’s worker safety agency represents an example of a larger trend.
“We certainly have seen, in my opinion, a roll-back on protections for workers in terms of wages, in terms of right to collective bargain and it seems, the right to work in a safe environment,” said Rep. Joni Jenkins, a Democrat from Shively who serves on the House Economic and Workforce Investment committee. “That’s very concerning.”
Bevin Eliminates A Board
At KY OSH itself, Bevin has cut some perceived red tape by eliminating a board of experts responsible for approving and modifying worker safety regulations.
In July, Bevin issued an executive order that abolished the OSH Standards Board and transferred the associated powers to the labor secretary.
Previously, the OSH Standards Board had 12 members representing a mix of safety and health, labor, management and agriculture, and was chaired by the labor secretary. The board was responsible for adopting or modifying workplace safety regulations, generally in response to federal regulation changes.
Since Kentucky’s safety regulations must be “as effective as” federal OSHA’s, the board’s main responsibility was to adopt, modify or suspend regulations in response to federal OSHA issuing a change.
Attorney General Andy Beshear
Attorney General Andy Beshear, a frequent adversary of Bevin, immediately called for the reinstatement of the board. Senate Democrats echoed that call, writing in a letter to Bevin that the members of the board “are the men and women who are most knowledgeable of the safety and health needs of the workers of the Commonwealth.”
In response to these criticisms, acting Labor Secretary David Dickerson responded with a harshly-worded letter. He refers multiple times to “Candidate Beshear,” a reference to Beshear’s intent to run for governor; alleged that Beshear wanted to keep the board in place for cronyism; and called the pushback one of the “outrages du jour.”
“[U]nder the logic set forth in your letters, and the logic proclaimed by Candidate Beshear, the only way to keep the sky from falling in these critical areas is to create multi-member boards that can pool the alleged ‘expertise’ of its members,” he wrote.
Dickerson declined to reinstate the board.
Donna Ringo, an industrial hygienist who represented safety and health on the board, said she heard the news from a national advocacy organization.
Most of the time, she said, the board just accepted the change as suggested by federal OSHA. But there would often be a discussion about the impact on businesses or what enforcement from KY OSH might look like. She thought the diversity of inputs was essential.
“You need people who have seen all the different issues in action,” she said. “No labor secretary can have seen all the things we have seen from all the different parts of business and labor.”
Ringo said the board typically met once a year, but had been gearing up for a more robust period of work since the passage of the sunset provision last year. All regulations passed before 2012 will have to be reconsidered, including federal OSHA standards that the board had adopted.
Now, that will all fall to Dickerson, the acting secretary.
In his letter, Dickerson said that the state confirmed with the federal Department of Labor that it would not violate the state plan by abolishing the standards board.
But experts say now is the time to make it clear there is no disinvestment in worker safety in Kentucky.
“The state is now on notice,” said Jordan Barab, former Deputy Assistant Secretary of Labor for Occupational Safety and Health under President Barack Obama. “If the state is resisting working with OSHA cooperatively, then that’s a serious problem that OSHA has to deal with.”
Kentucky Public Radio Capitol reporter Ryland Barton contributed to this story. Eleanor Klibanoff can be reached at eklibanoff@kycir.org and (502) 814.6544.
Grant Oakley’s second day of work was the last day of his life.
Seventeen, sandy-haired and tall, Grant liked to fish, tinker with motorcycles with his father, Mike, and play tuba in the school marching band. He was excited in the fall of 2015 when he landed his first part-time job at a farm supply business. The location was convenient; Bluegrass Agricultural Distributors was just across the highway from the Oakley family’s farmhouse near Lancaster, Kentucky, in rural Garrard County.
This April, Pam Oakley walked across the yard and pointed at the front porch. “Week before this happened, we sat on that porch and took his senior pictures,” she said. “He never got to see ‘em.”
Pam and Mike Oakley avoid the front porch now. The view of the now-empty storage sheds and silos at Bluegrass Agricultural is a constant, painful reminder of the accident that took their son’s life. Until recently, they didn’t even cross the street.
Grant Oakley
Grant worked a few hours after school on a Monday. But he was looking forward to his first full day of work the next day, Election Day, when he had the day off school.
The owner told state investigators he liked to let his employees leave to vote, and Grant — not old enough to vote yet himself — would be covering for them.
According to a state investigation, shortly before closing time on November 3rd, a 19-year-old forklift operator was returning the equipment to the main facility for storage. Exactly what happened next is not clear.
“The victim had hitched a ride on the forklift,” an inspector with Kentucky Occupational Safety and Health concluded in his report. The operator’s manual for the 6-ton forklift, with front tires nearly four feet tall, clearly prohibits passengers.
As the forklift approached a gate, Grant either fell or hopped down from the forklift. Somehow, he ended up underneath it, and the forklift’s rear wheel ran over his chest and neck.
The operator shouted for help. Mike Oakley recalled that another employee ran to the house to find him.
“They said ‘Grant’s hurt,’” he remembered. “I took off running.”
Mike and Pam arrived just before a medical helicopter flew Grant to a hospital.
“He was in so much pain,” Mike said through tears.
Grant died that evening.
The Oakleys had so many questions: Why was Grant allowed to ride on the side of the forklift? How fast was it going? Who saw what had happened?
Stunned, bereaved, the Oakleys looked to the Kentucky Occupational Safety and Health office, or KY OSH, for answers. In Kentucky, KY OSH is the state agency that has primary responsibility for enforcement of work safety regulations, including investigations of workplace accidents, injuries and fatalities.
But the Oakleys found the investigator’s handwritten notes incomplete and hard to read. It appeared the state’s inspector didn’t question witnesses.
“They closed his case so fast,” Mike Oakley said.
“And they said it was not necessary for them to talk to all the witnesses,” Pam Oakley added. “Who doesn’t talk to the witnesses? When somebody dies, who won’t talk to the witnesses?”
Since then, a county prosecutor and federal labor officials have reviewed the KY OSH investigation of Grant’s death and confirmed what the Oakleys suspected: the work was sloppy, incomplete, and not in compliance with the federal requirements.
The prosecutor says the failings hindered his attempt to build a criminal case. Mike and Pam Oakley say their family has been left with years of lingering questions, compounding their grief.
Credit Jeff Young
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Mike Oakley stands in front of the former Bluegrass Agricultural Distributors, where his son Grant died after he was run over by a forklift in 2015.
Criminal Charges Considered
When Andy Sims learned of Grant’s death, Sims thought there might be grounds for criminal charges against either the company management or the equipment operator.
“Any time someone dies, I want to look into it,” said Sims, the Commonwealth Attorney for Kentucky’s 13th Judicial Circuit, which includes Garrard County.
Sims turned to the KY OSH investigation to learn more about the circumstances of Grant’s death.
But instead of a willingness to help him build a case, Sims said he found an “extremely frustrating” lack of cooperation from the agency officials. And when he finally did get the materials, Sims said, he was disappointed by the lack of substance.
“There were few photographs of the scene, no recordings, a couple of handwritten notes but the information is out of context,” Sims said.
Some scribbled notes from interviews, Sims said, were “illegible.” Other notes he could make out, but they lacked any indication of what questions had been asked by inspectors, making it hard to put information in context.
Sims decided he would have to do his own investigation with the assistance of a Kentucky State Police trooper. But by then, time was working against them.
“Once the incident occurs, there is kind of a ticking clock about getting a proper investigation to get criminal charges,” he said.
A detective interviewed five people present the day of the accident — including witnesses KY OSH never interviewed.
Sims decided to pursue homicide charges relating to Grant’s death.
The detective presented his findings to a grand jury. But the grand jury did not issue any indictments.
“I feel because there was that delay, it impaired our chances of getting a criminal indictment,” Sims said.
Sims was so discouraged by the experience that he wrote a letter to regional officials with the federal Occupational Safety and Health Administration (OSHA), detailing what he found in the KY OSH investigation.
Had the original investigation by KY OSH been more helpful, Sims wrote, he could have more thoroughly evaluated the incident to help the family seek justice.
“Unfortunately,” Sims concluded, “I am sure many criminal actions have gone unprosecuted as a result” of poor investigations by KY OSH.
Credit Jeff Young
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Bluegrass Agricultural Distributors, outside of Lancaster, Kentucky, has closed in the years since Grant Oakley’s death.
Bluegrass Agricultural has since closed. A “for sale” sign is on the gate near where Grant Oakley was crushed by the forklift tire. The business was owned by a father and son, both named Bobbie Prewitt. The elder Prewitt died in January 2018.
Reached by phone, his son Bobbie Prewitt declined to talk. “That’s something in the past that should stay in the past.”
‘Numerous Deficiencies’
In roughly half the country, the U.S. Occupational Safety and Health Administration, or OSHA, has direct responsibility for work safety regulation. But in Kentucky, those tasks fall to KY OSH. Federal regulations allow the state to carry out inspections, enforcement, and other work safety programs with the caveat that they be equal to, or better than, what the federal government would provide.
Pam and Mike Oakley looked at the state agency’s investigation at Bluegrass Agricultural and did not think that the KY OSH was living up to that standard. They filed a federal complaint about how the state had conducted the investigation of Grant’s death.
OSHA’s area director, William Cochran, looked into their concerns and largely agreed.
Cochran, who works in OSHA’s Nashville office, declined an interview request through a spokesperson. But in a December 2016 letter to state officials, Cochran detailed problems with the KY OSH investigation.
Among them: Kentucky’s case file identified eight potential witnesses, including other employees, a farm manager, and a doctor who was a customer at the business and tended to Grant until an ambulance arrived. But the file contained only minimal documentation for two interviews done on site. The inspector failed to obtain signed statements. Taken as a whole, his letter said, it was impossible to determine if the company should have faced stiffer fines and more serious violations.
A selection from a federal CASPA (Complaint Against State Program Administration) report, issued by the federal government after the Oakleys filed a complaint.
The only violation KY OSH assessed against Bluegrass Agricultural was a “serious” violation for allowing an employee to ride as a passenger on the side of the forklift. The Oakleys believed that violation should have been elevated to a “willful” one, which carries higher financial penalties for employers.
But Cochran found that, due to the state’s incomplete investigation, “it is not possible to determine if a willful violation existed.”
KY OSH and officials with the Kentucky Labor Cabinet declined an interview for this story. But in a January, 2017, response to OSHA, the Labor Cabinet pushed back. Ervin Dimeny, then the workplace standards commissioner, wrote that KY OSH did not interview others at the scene because the inspector determined that they were not eyewitnesses to the accident.
Dimeny also objected to OSHA’s recommendation that state inspectors should secure signed statements.
“It is Kentucky’s experience that obtaining signed statements may be counterproductive,” Dimeny wrote.
Later, Cochran would find that the flaws the Oakleys had complained about were not an exception to the state’s performance. Rather, they were the rule.
As part of an annual federal oversight report released this year, known as a Federal Audit and Management Evaluation (FAME) report, Cochran conducted a special review of the KY OSH fatality investigations over a two-year period. That report found “numerous deficiencies” in nearly every case. In roughly a quarter of the cases, KY OSH identified workplace hazards but did nothing to correct them. Cochran found no documentation in the KY OSH files to indicating that the state inspector had considered whether there were violations of safety standards.
A selection from a federal audit, published by the federal OSHA program, that criticized Kentucky’s fatality investigations.
“The result is workers are continuously exposed to serious hazards that remain unabated,” Cochran wrote.
As with the Grant Oakley investigation, Cochran’s review found KY OSH frequently failed to interview witnesses, secure statements and determine a cause for fatal accidents.
He added that, in some cases, “it appears that the state is just taking management’s word.”
The Oakleys were shocked to learn that the already modest fine KY OSH assessed against Bluegrass Agricultural had been reduced. The initial penalty of $7,000 was cut in half based on a formula the agency uses to lower fines for small businesses.
After their son’s death, the business was ordered to pay $3,500.
“We can tell you what the state of Kentucky OSH thinks what a 17-year-old boy’s life’s worth,” Pam Oakley said. “And it ain’t much,” Mike added.
‘They Put Their Trust’ In KY OSH
Ron Hayes is all too familiar with the Oakleys’ experience. His son Pat died at 19 in a workplace incident in Florida, and the experience turned him into a lifelong advocate for families of those killed on the job.
Hayes said the quality of KY OSH investigations can have enormous emotional and financial implications for the families.
That begins with the effects on the workers’ compensation payments in fatality cases. When KY OSH fails to assign blame or blames a worker, it can lead to a family receiving a lower payout.
Often, he said, the money is far less important than the signal it sends to families.
“They put their trust in them,” he said of KY OSH. “Then when the investigation comes back that did nothing or really found nothing, then you’re left there suffering even more and your trust is betrayed.”
Hayes said a more thorough investigation would at least provide some answers and allow families to better come to terms with the circumstances of their loss.
“You cannot bring back their loved one,” Hayes said. “But what you can do is help them move through the process a lot quicker and help them heal a lot quicker.”
Pam and Mike Oakley were not surprised to learn that federal officials had found so many problems in the KY OSH program.
“Everything about it is a slap in the face and disrespectful to that individual and that family,” Mike Oakley said of the KY OSH work. “And all we wanted was some answers.”
Pain Brings New Mission
Sitting in their living room, beneath hunting trophies Grant and Mike had collected, Mike and Pam shook their heads, smoked, and read over the latest federal report outlining the many flawed investigations.
The more they learn about the many worker fatalities, the deeper they have become involved. The Oakleys have helped to organize an annual workers’ memorial event in April, where the names of those killed on the job are read aloud and families gather with photos, memories, and to share their frustrations with the state agency charged with enforcing worker safety.
“There needs to be somebody with some knowledge, some compassion, to help families like us,” Mike Oakley said.
Mike is becoming more active in worker safety training, too, focusing on young people entering the workforce.
“If I can save one father, one mother, from sitting here, to not have to do this,” Mike said, “Well, that’s one. That’s worth it.”
Credit J. Tyler Franklin
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Grant Oakley’s initials, GTO, still adorn the sidewalk at the Oakley home.
Artifacts of Grant’s life are all around, and each triggers a short memory or story: The initials he scrawled into wet concrete, the baseball pitching target he’d drawn on a barn door, the garage where he and his dad rebuilt a classic bike.
But there is also that view across the street, which brings back the worst day of their lives and their many unanswered questions.
As the November anniversary of Grant’s death approached, the Oakleys were moving belongings to a new house, farther from the painful site. The house where they raised Grant, which has been in Pam Oakley’s family since the 1950s, is now for sale.
Correction: Bill Cochran is OSHA area director. A previous version of this story had an incorrect title.
Jeff Young is the managing editor of the Ohio Valley ReSource, a regional journalism collaborative anchored at Louisville Public Media.
While most of the Meade County public works crew finished their lunches, Pius “Gene” Hobbs was raking along the edge of the road, oblivious to the dump truck backing quickly towards him.
Unbeknownst to the driver, Hobbs was knocked to the ground and crushed under the truck’s weight. When the truck accelerated forward, Hobbs’ coworker ran him over a second time. He was killed on impact.
The only eyewitness to the December 2016 incident, a bystander named Greg Turner, said that he didn’t hear a backup beeper on the truck as it reversed. Maybe Hobbs hadn’t either.
At the scene, state police concurred: they couldn’t hear the backup beeper. Later that day, after the employees had gone home and the Vine Grove street was quiet, Kentucky’s occupational safety inspector showed up.
He conducted his own test.
Standing next to the truck, with no other equipment running in the area, the inspector said he could hear the backup beeper just fine. Though those conditions bore little resemblance to the scene of Hobbs’ death hours earlier, the inspector ruled the Meade County Road Department had done nothing wrong.
Or, as a supervisor with the state worker safety agency said in an email about Hobbs: he just “zigged when he should have zagged.”
Hobbs’ widow, Lisa, got a copy of that email.
“We know that’s not the truth,” said Lisa Hobbs. “It just tears you up. You don’t know what to do.”
Kentucky is one of 28 states or territories that runs its own worker safety program, called Kentucky Occupational Safety and Health (KY OSH). When workers die on the job, KY OSH inspectors are charged with investigating the circumstances of the death, and determining whether an employer was complying with state safety and health standards.
But the state agency tasked with protecting workers failed to properly investigate nearly every single worksite death in two years, according to a federal investigation and analysis by the Kentucky Center for Investigative Reporting.
The flaws showed up in almost all of the 44 fatalities examined by federal OSHA in fiscal years 2016 and 2017.
The federal report issued this year focused on Kentucky’s fatality inspections, and found that inspector interviews were “inadequate”; hazardous safety conditions, including those related to a worker’s death, were not addressed; and the sloppy investigations left workers “continuously exposed to serious hazards that remain unabated.”
Excerpt from the federal audit
The federal investigators sought to retrace state inspectors’ steps to evaluate the quality of fatality investigations. But they found a lack of information that made it impossible to know, in many cases, what caused a death or if a company should have been deemed responsible.
The Labor Cabinet, which runs KY OSH, declined an interview for this story through a spokesperson. Gov. Matt Bevin’s office did not respond to repeated requests for comment. Michael Donta, a former Labor Cabinet deputy commissioner who oversaw KY OSH during the time frame reviewed by KyCIR, said in an interview that the findings were “concerning.”
Donta said he had trusted the people working under him, but in retrospect, realized he should have been watching more closely. There’s no excuse for a bad investigation, he said, but it’s hard to expect a struggling agency — underfunded, with high staff turnover and what he felt was a lack of political support from the state — to get it right all the time.
“The investigation, whether it’s a good investigation or a bad investigation, is not going to fix what [families] want fixed and that’s their loved one back,” he said. “Let’s fix what happened and prevent it from happening again.”
What Lisa Hobbs wanted was for the state to do its job, and hold her husband’s employer to account.
“That’s who we were relying on to set everything straight, but that didn’t happen,” Hobbs said. “You’d think [KY OSH] knows what they’re doing, but they don’t have a clue.”
Federal Intervention Looming
The problems in Kentucky’s state-led worker safety program are well-known to the federal government.
In August, the federal Occupational Safety and Health Administration quietly issued a scathing audit known as the Federal Audit and Management Evaluation (FAME) report. In it, federal OSHA identified more shortcomings in Kentucky’s system than any of the 28 other states and territories that run their own worker safety program.
The federal agency criticized the state for only investigating complaints that come from employees of a company — which means 70 percent of the complaints they receive are ignored, because they came from non-employees. Overall, OSHA found, Kentucky is inspecting fewer workplaces than it ever has; the 787 inspections it conducted in fiscal year 2017 was the lowest number in at least a decade.
When KY OSH does inspect workplaces, they’re identifying fewer hazards than in previous years, and the time inspectors take to close a case exceeds federal standards, according to the federal audit.
Federal OSHA also took the unusual step of conducting a special study of Kentucky’s handling of worker fatalities, prompted by a spike in complaints from families and national advocates about KY OSH.
In nearly all of the 44 cases it reviewed, the report found fundamental deficiencies. The flaws included failing to identify the cause of the accident, not conducting or documenting interviews and overlooking obvious violations.
The federal Department of Labor, which oversees OSHA, declined an interview request.
A spokesperson said in a statement that “OSHA is currently in the process of working with the Kentucky Labor Cabinet to craft a corrective action plan that addresses the findings” identified in the report.
Although the state Labor Cabinet refused to make Acting Secretary David Dickerson or a representative of KY OSH available for an interview, its response to the federal audit sheds light on its defense.
The cabinet acknowledged it’s implementing some changes, particularly around documenting interviews. But the cabinet rejected some of the findings outright and defended its investigations.
Federal OSHA pointed out that Kentucky didn’t identify an incident’s cause in nearly half of the cases, and directed KY OSH to develop a strategy to ensure more thorough investigations in the future.
In its response, the Labor Cabinet disagreed. It acknowledged that inspectors are ordered in the agency’s manual to make “every reasonable effort” to determine the cause of the accident, but said that didn’t mean it was required.
Federal OSHA can take over state-run programs like Kentucky’s if they aren’t “at least as effective” as the national standards, but Jordan Barab, Deputy Assistant Secretary of Labor for Occupational Safety and Health during the Obama administration, said that’s unlikely. There are interim steps that federal OSHA could take, though, like withholding federal funds or taking over parts of the state program.
“Having a state program is a privilege, not a right of the state,” said Barab. “It requires the states to address rapidly and seriously any problems that are identified by federal OSHA.”
Credit Alexandra Kanik
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‘Essentially, it was the worker’s fault’
The federal audit didn’t name the workers or companies involved with fatalities. But KyCIR obtained 47 case files from the state’s fatality investigations for fiscal year 2016 and 2017, including three cases that weren’t included in the federal audit.
Our analysis confirmed the federal agency’s findings: few interviews were conducted, and inspectors often closed the case without determining what caused the fatal accident. The majority of the companies that were issued safety violations and financial penalties, meant to serve as a deterrent, saw their fines cut by at least half.
In Gene Hobbs’ case, no violations or fines were issued.
Meade County Judge-Executive Gerry Lynn called the death a “tragic accident,” and said the county was cleared of all wrongdoing.
But records show there were serious shortcomings in the KY OSH investigation.
The inspector never interviewed Turner, the sole eyewitness. He got no signed employee statements. His accounting of what Hobbs was doing at the time of his death — the inspector said he was walking back from lunch, not raking — contradicts what the state police reported.
Other cases show similar flaws:
Scottsville, KY
A passing vehicle fatally struck Titus Morris and injured another employee while they were conducting road work in Scottsville in December 2015 for the Kentucky Transportation Cabinet.
The KY OSH inspector left the agency in the middle of the investigation, and witnesses weren’t interviewed for four months. Records indicate that the driver of the car involved in the accident was never interviewed.
Because she showed up after the vehicles had been removed, and the employees hadn’t done a daily safety check, the inspector said she couldn’t figure out from available documents whether the crew was using proper safety precautions. But she said she had no reason to believe they weren’t. No violations were issued.
Transportation Cabinet spokesperson Naitore Djigbenou said she didn’t know anything about a daily safety check in this incident, but said the cabinet requires all of its employees to comply with all safety rules.
“It was a very, very tragic event that was really unforeseen and truly an accident,” said Djigbenou.
In Louisville, Jeffrey Burke was crushed to death when the jacks failed while he was working on a car in September 2016. This wasn’t part of his job as a hotel maintenance worker at a Louisville hotel — Burke’s manager ordered him to work on his daughter’s car, records show.
The KY OSH inspector didn’t interview the manager who ordered the work, who was fired by the hotel. He nonetheless decided the manager couldn’t be responsible for the safety violations, since he wasn’t on site at the time.
KY OSH “determined that essentially, it was the worker’s fault,” according to the federal report, and despite possible worker safety violations, it appeared “the state is just taking managements’ word.”
Penalty Reductions ‘Without Any Justification’
In August 2016, Ervin Bledsoe was doing building restoration work for BJB Architectural Metal in downtown Louisville when he fell from a ladder. He ruptured his spleen and died the next day at the hospital. A BJB representative didn’t return a call for comment.
The federal audit pointed out that KY OSH missed possible citations for a lack of ladder training; improper ladder use; and lack of management oversight. KY OSH didn’t ultimately issue any violations or fines. But, the agency had already offered the company a 25 percent “good faith” discount on fines before an inspector began investigating.
More than 90 percent of companies investigated after a fatality in fiscal year 2016 and 2017 were offered a reduction on fines even before KY OSH decided whether violations occurred, according to KyCIR’s analysis. The federal audit concluded these reductions are often handed out without justification.
More than 60 percent of companies that had a fatality received a good faith reduction, which was also concerning to the authors of the federal audit: a fatality “indicates a complete lack of an effective safety and health program, and/or at least a failure in the program.”
One of those penalty reductions was handed out in direct violation of Labor Cabinet rules after 66-year-old Sally Berry was stabbed to death.
Berry was working in a residential care facility in Elizabethtown owned by Louisville-based ResCare, now called BrightSpring Health Services. According to court records, Berry was killed by a resident she was supervising on the evening of January 3, 2017.
The resident was indicted for murder, but the charges were dismissed by the prosecutor on competency grounds, court records show.
The KY OSH report noted that Berry may have been verbally abusive towards the residents. KY OSH issued no citations related to Berry’s death, in part because, the inspector wrote, he “can’t determine if the attack wasn’t provoked.” KY OSH did issue a list of ideas to improve worker safety at the home, but noted these are “merely suggestions.”
Excerpt from KY OSH’s Berry investigation
While investigating, though, KY OSH issued a violation to the company for willfully failing to maintain required workplace injury records. It was the only time KY OSH issued a serious willful violation in the 2016 and 2017 fiscal years.
The company was given a 15 percent reduction based on “good faith,” which KY OSH issues to companies with an effective, written safety and health program.
But KY OSH’s manual says that “good faith” reductions cannot be assessed when the company has any willful violations, since the employer can’t willfully disregard safety regulations and be in good faith at the same time.
And even though the inspector documented at least 10 incidents of workplace violence in two years at the facility and cited ResCare for faulty record keeping, KY OSH handed out an additional 10 percent reduction on the strength of the company’s worker safety history.
KY OSH issued a $14,750 fine to the company after the penalty reductions, according to records.
In a statement, a spokesperson for BrightSpring, formerly ResCare, said, “We remain deeply saddened by this very tragic loss of an employee … We continuously strive to seek prevention-focused safety and quality improvements to ensure the welfare of our employees and the people we support.”
That company paid its fine in full. But many companies don’t.
One in three companies penalized after a fatality saw further reductions after an informal settlement meeting with KY OSH.
These informal settlements are intended to encourage the companies to invest in safety, according to Mike Dixon, commissioner of the department that oversaw KY OSH, then called Office of Occupational Safety and Health during the Beshear administration.
“Whether that’s buying fall protection or paying for extra training for their employees, if they would show proof that they had done that, we would reduce the penalties,” Dixon said. “We felt that promoted safety on the job site more than some little penalty.”
For nearly half the companies that had violations, KY OSH agreed the company fixed the problems during the course of the investigation. Beyond that, KY OSH typically doesn’t follow up in person after a company reports that it has addressed the problem.
Dixon said the department is abdicating its responsibility if its no longer leveraging penalty reductions to fix worker safety violations.
“A fatality on a job site, a vast majority of the time, it could have or should have been prevented,” he said. “Unfortunately, in a poor state like Kentucky, people are willing to do about anything to have a job.”
That’s why, Dixon said, employees need a strong worker safety agency looking after them.
Education Before Enforcement
In public statements, Labor Cabinet leaders have highlighted the focus of the state’s worker safety agency.
Enforcement is not the priority.
“We are going to educate, we’re going to educate, we’re going to educate and we’re going to educate, and then citate,” then-Labor Secretary Derrick Ramsey told WKMS, the public radio station in Murray, in April. “Our team is doing an incredible job of getting out and educating people.”
KY OSH will come and assess a company’s safety program, for free, without the threat of fines or punishment. In 2016, the education division of KY OSH gave voluntary consultations to 334 businesses and offered training to approximately 4,400 employees, according to state reports.
The education program helps businesses proactively identify and fix worker safety violations.
“Last year, we saved in penalties for businesses over $12.5 million,” Ramsey said, naming his agency’s estimate of the penalties that were avoided by education. “When someone can say we’re creating an unsafe environment, I don’t know where they’re talking about, because I can say, the commonwealth has never been as safe as it is now.”
Kentucky remains above the national average on workplace injuries and illnesses. But those numbers are declining, statistics that Ramsey cites as proof that education is working.
The number of fatalities investigated by KY OSH has remained largely stable over the last decade, hovering between 20 and 30 workplace deaths a year. While the 20 fatalities in 2017 was the lowest number in a decade, the year before was among the highest at 27.
Laura Stock, the director of the Labor Occupational Health Program at the University of California at Berkeley, said an opt-in, voluntary education program isn’t a long-term fix.
“Without a really strong enforcement unit … these voluntary compliance assistance programs are not going to be able to do the job,” Stock said.
Though his education-first initiatives continue, Ramsey left the Labor Cabinet in May to head up the Kentucky Education and Workforce Development Cabinet.
Ramsey took a lot of Labor Cabinet senior staff with him, including the commissioner and deputy commissioner of the Department of Workplace Standards, which oversees KY OSH. Ramsey was replaced with an acting secretary.
Donta, the former deputy commissioner, was fired in December. (In a whistleblower lawsuit he filed against the cabinet, Donta alleges the termination was a result of reporting a fellow supervisor’s alleged sexual harassment.)
KY OSH itself has had four different directors of compliance since Bevin was inaugurated in 2015.
That turnover mirrors what’s happening at KY OSH’s lower levels as well. A quarter of all compliance officers have less than one year experience, while 63 percent have three years or less.
Agency leaders have blamed turnover for some of the institutional problems detailed by the federal audit.
“They have a problem at the cabinet with inexperienced investigators,” said Donta. “And because of that, sometimes, things fall through the cracks.”
These employees investigate grisly deaths and dismemberments. They deal with heartbroken families and contentious companies. Entry-level pay for the job, which requires a college degree, starts at $30,000 a year.
According to a state database, even the most experienced officers make about $55,000.
And a little experience working for the state can translate to double or triple the state salary in the private sector.
Donta said inexperienced compliance officers often have to train the next class; compliance officers quit in the middle of investigations; and many work a second job to make ends meet.
This is a problem every state grapples with, said Barab, the Obama-era OSHA director.
“It doesn’t excuse the states from their obligations under the law,” said Barab. “And it certainly doesn’t excuse the states from recognizing those problems and working to improve those problems.”
Experts and former employees agree that to hire, train and retain inspectors, KY OSH would need more money. Funding levels have increased slightly over the last few years, but federal budget cuts to OSHA haven’t helped.
Even though state plans are only required to match federal funds, Kentucky already contributes twice as much as the feds do.
At Hobbs Home, Fight Continues
Credit Michelle Hanks
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Lisa Hobbs’s table is covered with documents and articles relating to her husband and his death. Gene Hobbs was run over by a coworker on a construction site in December 2016.
Lisa Hobbs’s table is covered with documents and articles relating to her husband and his death. Gene Hobbs was run over by a coworker on a construction site in December 2016. Photo by Michelle Hanks
In the basement of the house at “Camp Pius,” the farm that has been in her husband’s family for generations, Lisa Hobbs has a table. It’s covered in neat piles of documents, tabbed and highlighted, laying out everything that has happened since her husband was run over in December 2015.
There’s the obituary, the commendation the county awarded him posthumously, the police report. She kept meticulous track of the dates and documents, injustices and victories.
In May 2018, one of those victories came in the form of a federal report. She had filed a complaint with federal OSHA, alleging that KY OSH had mishandled the investigation into her husband’s death. This was the response from the federal office in Nashville.
Greg Turner, the only eyewitness to the incident, was finally interviewed by a federal inspector. Had that interview been conducted at the time, OSHA area director Bill Cochran wrote, it “would likely have changed the outcome of this investigation.”
Cochran declined an interview request through a spokesman. His report identified multiple possible violations against Meade County, including training violations, management inspection violations and a sweeping violation for failing its duty to protect employees.
And as for that backup beeper, which the police and Turner agreed wasn’t audible, the federal inspector found KY OSH didn’t do enough to verify whether it worked or not.
“KY OSH should ensure that all available evidence is obtained and used to determine the facts at the time of the incident before developing conclusions and findings,” the report reads.
Reading that report felt like a win for Lisa Hobbs. But in many ways, it’s too little, too late.
On June 14th, what would have been her 43rd wedding anniversary, Lisa Hobbs stood in her front yard. She watched the same public works dump truck that killed her husband barrel down her country road. She listened closely as the truck reversed, and began to back down the street.
“No damn beeper,” she said, shaking her head.
More than a year and a half after Gene Hobbs was run over at work, she still couldn’t hear the backup beeper on the dump truck. KY OSH never told the county to fix it.
Correction: Bill Cochran is OSHA area director. A previous version of this story had an incorrect title.
Jeff Young, Jacob Ryan and Emma Collins contributed to this story. Eleanor Klibanoff can be reached at eklibanoff@kycir.org and (502) 814.6544.
