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Federal Rules on Worker Safety and Record Keeping Are Likely Targets for Rollbacks

Concern among labor unions and advocates of workplace safety is so high that some unions raced to court last month to intervene in a lawsuit seeking to undo a new rule that prevents companies from retaliating against employees who report workplace hazards.

New York Times, By Barry Meier and Danelle Ivory, March 13, 2017

Even as the Labor Department awaits confirmation of a new secretary, officials say enforcement actions are moving forward against companies accused of violating workplace safety rules.

There is just one issue: The public isn’t likely to know much about them.

In a sharp break with the past, the department has stopped publicizing fines against companies. As of Monday, seven weeks after the inauguration of President Trump, the department had yet to post a single news release about an enforcement fine.

By contrast, the Obama administration saw the announcements — essentially publicly shaming companies — as a major tool in its workplace safety enforcement. It issued an average of about 460 news releases annually about fines and other enforcement actions, said Eric Conn, a lawyer in Washington who tracks such cases.

“The reason you do news releases is to influence other employers” to clean up their acts, said David Michaels, who was an administrator of the Occupational Safety and Health Administration, the agency within the Labor Department that oversees workplace safety, during much of the Obama administration.

As Mr. Trump vows to roll back regulations across the federal government, the early experience in the Labor Department shows that there are many ways to signal the administration’s new direction. Concern among labor unions and advocates of workplace safety is so high that some unions raced to court last month to intervene in a lawsuit seeking to undo a new rule that prevents companies from retaliating against employees who report workplace hazards.

Jillian Rogers, a spokeswoman for the Labor Department, declined to comment when asked why OSHA had not issued any such releases. But she said that the agency’s enforcement efforts were unchanged and that such efforts were “reflected across various media channels,” like newsletters and social media.

“The Department of Labor is continuing to operate business as usual, including enforcement operations,” Ms. Rogers said.

In addition to the rule on worker retaliation, several other OSHA regulations or standards, on issues like record-keeping practices and use of a mineral linked to a deadly lung disease, face delay or elimination.

Last week, the Senate passed a measure to repeal an Obama-era rule that required companies seeking significant federal contracts to disclose violations of labor standards, like safety and fair-pay rules, or instances when they were accused of such violations. The so-called blacklisting rule was intended to prevent companies that violated workplace regulations from getting federal money.

Alan Chvotkin, executive vice president for the Professional Services Council, a trade association that represents federal contractors, hailed the measure, which Mr. Trump may now sign into law. He said the rule was onerous and unfair, because companies had to report unproved accusations.

“The regulatory scheme was overly burdensome,” Mr. Chvotkin said. “We applaud the change.”

As an agency, OSHA has long struggled to have an impact. Its rule-making procedures are arduous, and changes can take years or even decades to enact.

Last year, to help the agency flex its muscles, Congress passed a law doubling the fines companies faced for safety violations. The agency also took aim at certain industries it considered repeat offenders.

Among other things, it levied fines last year as high as $317,000 against several poultry producers like Tyson Foods, Koch Foods and Birdsboro Kosher Farms. It also assessed a $2.5 million fine against Ajin USA, a company in Alabama that supplies auto parts for South Korean carmakers like Kia and Hyundai, after a 20-year-old woman was killed when a factory robot malfunctioned.

Still, the Trump administration and lawmakers seem to be making good on commitments to roll back regulations on businesses, and OSHA appears to be a prime target.

Industry groups are pushing back against an Obama-era regulation meant to exert pressure on companies to better comply with record-keeping rules. A provision of that rule, which was supposed to take effect last month, would require companies to electronically submit accident data to OSHA so the agency could post the information on a public website. As recently as early January, OSHA said on its website that it expected the site to be live in February.

But in recent weeks, the agency changed the wording so that it now states, “OSHA is not accepting electronic submissions at this time.”

“That was not an accident,” said Mr. Conn, the lawyer. “That was a big signal to employers that even if they report the data, it will not be published online.”

Ms. Rogers, the department spokeswoman, did not comment on the wording change.

In addition, OSHA’s ability to charge companies with failures to properly record workplace injuries may be severely curtailed.

For years, the agency had taken the position that it had up to five and a half years after an alleged violation to issue a citation to a company. But a court in 2012 found that OSHA’s interpretation was inconsistent with what the court called the “clear” wording of the law, which gave the agency only six months to bring charges.

In December, the Obama administration issued a rule aimed at circumventing the court decision and restoring the five-and-a-half-year period. But the House recently repealed that rule, and the Senate is expected to follow suit.

Arthur G. Sapper, senior counsel at Ogletree Deakins and the lawyer who successfully argued against the agency in the 2012 court case, said the new OSHA rule deserved repeal.

“They could have gone to that or another court or to Congress, but instead they tried to evade the law by changing their regulations,” Mr. Sapper said.

But Mr. Michaels, the former head of OSHA, said that if the rule died, safety recording would effectively become voluntary because finding violations and bringing charges within six months was nearly impossible.

“Responsible companies will keep good records, but the low-road companies won’t, and that will put responsible companies at a disadvantage,” said Mr. Michaels, an epidemiologist who is now a professor at George Washington University.

In addition, the agency said recently that it was delaying a rule intended to sharply lower occupational exposure to beryllium, a widely used mineral linked to a deadly lung disease. The rule, which was set to go into effect this month, will be delayed until at least May.

The action is the latest twist in a four-decade effort by safety advocates to tighten beryllium exposure limits. Those advocates say they are optimistic that the new exposure standard will go into effect with only minor changes, but they added that any long delays or major revisions could jeopardize worker health.

Michael Wright, director of health, safety and environment for the United Steelworkers, said that if the rule was delayed or overhauled, “then we will have a big problem, and we’ll be fighting that with every resource we have.”

House Republicans Vote To Nullify Another One Of Obama’s Workplace Safety Rules
This time, they’ve gone after a rule about recording workplace injuries.

Huffington Post, By Dave Jamieson , Laura Barron-Lopez, March 12, 2017

WASHINGTON ― House Republicans voted Wednesday to roll back a federal rule that requires employers to keep better record of workplace injuries.

Lawmakers availed themselves of the same arcane tool they’ve used to undo other federal regulations in recent weeks: the Congressional Review Act, or CRA. The 1996 law enables Congress to dismantle a regulation within 60 days of it being finalized, while also forbidding agencies from rolling out a similar regulation in the future.

The GOP-controlled House approved the measure, known as a “resolution of disapproval,” in a mostly party-line vote. It now heads to the Senate, which is also led by a Republican majority.  

Republicans have used the CRA to target more than a dozen regulations in the past six weeks, needing only a simple majority in the Senate to pass the resolutions. It would be a futile exercise if it weren’t for President Donald Trump, as it’s unlikely that a Republican president would veto the measures if Congress passed them. 

The Obama administration issued the new record-keeping rule in December through the Occupational Safety and Health Administration. The rule states that employers have an ongoing obligation to maintain accurate records of injuries and illnesses, and that OSHA has up to five years after they happen to cite employers for failing to keep track of them. OSHA said it was issuing the rule as a “clarification,” after a 2012 appeals court ruled that the statute of limitations was just six months.

It may not sound like a big deal, but lasting and accurate records are crucial to OSHA’s mission: They allow the agency to pinpoint recurring hazards at dangerous employers and industries, and they help officials figure out where to target their limited resources. 

Record-keeping rules need to be strong because employers have an incentive to fudge them, Jordan Barab, a former OSHA official in the Obama administration, wrote last week in a blog post. After all, higher injury rates can translate into higher workers’ compensation costs.

“[W]ithout being able to enforce any violation within the five-year period, enforcement of recordkeeping accuracy would be almost impossible,” Barab wrote. “The losers would be the workers because there would no longer be any way for OSHA to force employers to keep accurate records that could identify hazardous conditions.”  

House Republicans referred to the new rule as a burden on business, even though OSHA said it did not include any new reporting requirements for employers. In a statement Wednesday, House Majority Leader Kevin McCarthy (R-Calif.) called the rule a “power grab” by OSHA. 

“Nothing in the statute suggests Congress sought to endow this bureaucracy with the power to hold a discrete record-making violation over employers for years, and then cite the employer long after the opportunity to actually improve the workplace has passed,” McCarthy said.

Regulations that were introduced during the Obama era have come under attack since Trump assumed office. Earlier this month, House Republicans used the CRA in an attempt to repeal a Labor Department regulation that would bar companies from getting federal contracts if they had a history of wage theft and workplace hazards. They successfully passed a resolution of disapproval that still needs to be voted on in the Senate.

Other agencies have been hit by the CRA, too. Republicans have rolled back a Social Security Administration rule regulating gun purchases, as well as a Securities and Exchange Commission rule that ramped up disclosures for oil and gas companies. The full tally of regulations repealed through the CRA is now 13, McCarthy said.

Because such measures can be passed with an up-or-down vote, Senate Democrats have been helpless to stop them through a filibuster. 

“The most interesting and troubling thing about this is that it may very well be the ultimate block on modernizing workplace standards,” Celine McNicholas, labor counsel for the Economic Policy Institute, recently told The Huffington Post.

Until this year, the only time the CRA had been successfully used was in 2001, when Republicans blocked a workplace safety rule put forth in the waning days of the Clinton administration. That rule set new ergonomic standards in an effort to combat carpal tunnel disease and other musculoskeletal disorders among workers. OSHA has not introduced a similar rule since then.

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