Outten & Golden: Empowering Employees in the Workplace

Archive for August, 2018

Brett Kavanaugh dissent shows how far he'll go to side with the boss over workers

Wednesday, August 15th, 2018

It’s starting to look like a requirement of being nominated to the Supreme Court by Donald Trump is having at least one gratuitously, ludicrously anti-worker dissent in your record. Neil Gorsuch had the frozen trucker, and as for Brett Kavanaugh, Dave Jamieson offers a candidate. Kavanaugh was the lone dissenter on a case in which a company was found to have created a spin-off company solely for the purpose of busting its union.

In the case, Island Architectural Woodwork, a unionized company, created Verde Demountable Partitions, which was non-union. Verde operated from an Island-owned building, used the same equipment, and was run by the daughter of Island’s chief executive. It was a thin fiction:

According to court filings, Island provided Verde with free equipment and rent but didn’t even bother to document its dealings with the supposedly separate company until after it was subpoenaed.  

As the appellate court later noted, “Island made no formal valuations of its assets before handing them off to Verde” ? an unusual move if the two companies were disconnected as they claimed.

On top of all that, Island’s president, Edward Rufrano, tried to make it a condition of a new contract for Island’s workers that their union sign away its right to organize the Verde workers. But to Kavanaugh, this wasn’t enough to show that Verde existed to avoid worker organizing:

“The Board … seems to have found something shady in the fact that Verde was started and primarily owned by two daughters of Island’s primary owner,” Kavanaugh wrote, making it clear he saw no such shadiness.

What would make Kavanaugh see something done by a business owner as shady? 

This blog was originally published at DailyKos on August 15, 2018. Reprinted with permission.

About the Author: Laura Clawson is labor editor at Daily Kos.

Trump's NLRB Is Back in Action After Its Ethics Scandal. And It's Not Good for Workers

Tuesday, August 14th, 2018

The Trump-dominated National Labor Relations Board has been mostly quiet this summer, largely as the result of an ethics scandal that has tainted some of its earlier anti-union work. But NLRB initiatives are quietly underway to restart attacks on labor rights, including an effort disclosed August 1 that could restrict how workers can use email on the job.

The ethics scandal, in which Board member William Emanuel was judged to have violated a pledge not to vote in cases involving his former law firm, prompted the agency’s chairman to order an internal review. The “ethics and recusal requirements” review has been underway since early June.

Both Emanuel and Board Chairman John Ring are Trump appointees, approved by narrow margins in the U.S. Senate over united opposition from union-friendly Democrats. One of those Democrats, Sen. Elizabeth Warren of Massachusetts, has been an especially harsh critic of Trump’s NLRB appointees. One of her associates, who requested anonymity, tells In These Times that Senate Democrats are skeptical about Ring’s review. “It looks to me like a public relations dodge,” he says. 

Warren’s assistant press secretary told In These Times over email, “Any attempt to weaken the ethics standard…would be a betrayal of the working Americans the NLRB is meant to serve.”

Ring can expect close scrutiny of the ethics review, but is nevertheless moving forward with the Trump agenda to roll back pro-worker decisions issued by the labor board when it was controlled by Democrats during the Obama administration. In the latest example, the NLRB announced on August 1 that it intends to re-examine the 2014 Purple Communications case that upheld the limited right of workers to use workplace email systems for union-related communications.

According to an official statement, “the National Labor Relations Board invites the filing of briefs on whether the Board should adhere to, modify, or overrule Purple Communications, Inc., 361 NLRB 1050 (2014).” In Purple Communications, the Board ruled that workers have a limited right to use the email systems provided by their employers to promote union activities, even if the employer opposed the union. 

Going beyond email, Ring indicated the NLRB wants to re-examine existing rules on the use of all “employer-owned computer resources.” 

Ring telegraphed the expected outcome of the re-examination of Purple Communications by reporting that the decision to move ahead was approved by a narrow 3-2 vote of the five-member board. The split in the vote was strictly along partisan lines, with the three Trump Republicans (Ring, Emanuel and Marvin Kaplan) voting to go forward and the two Obama Democrats (Mark Pearce and Lauren McFerran) opposed. The two Democrats actually were both NLRB members back in 2014 when Purple Communications was decided, and had voted to protect union rights at that time. 

In further plans to attack the pro-labor decisions from the Obama era, Ring has  made clear that he is not done with the Browning-Ferriscase, which was at the center of the Emanuel ethics scandal. Forced to withdraw its 2017 decision to reverse Browning-Ferris because of Emanuel’s ethics violation, the NLRB now intends to attack the same issue of how the term “joint employer” will be defined under labor law by different means, according to Ring.

In a June 5 letter to Warren and other senators, Ring stated, “Candor requires me to inform you that the NLRB is no longer merely considering joint-employer rulemaking. A majority of the Board is committed to engage in rulemaking and the NLRB will do so. Internal preparations are underway, and we are working toward issuance,” of public notices required to establish the new rules. The board will act to issue the notices “as soon as possible, but certainly by this summer,” Ring wrote.

What Ring did not say is that the joint employer issue has taken on a special resonance for conservatives and business lobbyists, who view the Obama NLRB’s action as a dangerous step that could lead to increased unionization. The fast food sector took particular interest, as the franchise model for food outlets as pioneered by the McDonald’s hamburger chain was seen as newly vulnerable to union organizing under the Obama NLRB.

Ring declined a request from In These Times for a telephone interview to answer questions about the ethics review and other developments at the NLRB.   

Union members and labor activists shouldn’t expect any positive result from the NLRB’s ethics review, or from further action on Browning-Ferris, says Michael Duff, a law professor at the University of Wyoming who worked at NLRB earlier in his career. The ethics review is “window dressing, an attempt to salvage credibility,” he says, and the board’s hostility to Browning-Ferris is already “abundantly clear.”

“It’s going to be a tough road at NLRB for unions as long as there as a Republican in the White House, and especially with Trump,” he says.

About the Author: Bruce Vail is a Baltimore-based freelance writer with decades of experience covering labor and business stories for newspapers, magazines and new media. He was a reporter for Bloomberg BNA’s Daily Labor Report, covering collective bargaining issues in a wide range of industries, and a maritime industry reporter and editor for the Journal of Commerce, serving both in the newspaper’s New York City headquarters and in the Washington, D.C. bureau.

This article was originally published at In These Times on August 14, 2018. Reprinted with permission. 

Labor Department becomes latest Trump agency to take interest in 'religious freedom'

Monday, August 13th, 2018

The Department of Labor issued a directive Friday that makes it easier for federal contractors to claim their religious beliefs as a defense against anti-LGBTQ discrimination charges.

On August 10, the Department of Labor’s Office of Federal Contractor Compliance Programs (OFCCP) issued an enforcement directive that says investigators should consider recent U.S. Supreme Court decisions and recent executive orders relating to issues of religious freedom. The directive wouldn’t directly have an effect on the 2014 executive order that says government contractors can’t discriminate against employees or applicants in the LGBTQ community, according to Bloomberg. It does mean, however, that auditors in this office can, under certain circumstances, allow for religious exemptions in situations relating to discrimination against the LGBTQ community.

The directive reads, “Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. … Recent Executive Orders have similarly reminded the federal government of its duty to protect religious exercise-and not to impede it.”

It referred to the U.S. Supreme Court decision in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involved a baker who refused to make a wedding cake for a same-sex couple. The Court reversed the Colorado Civil Rights Commission’s decision and said it showed bias during its consideration of the religious freedom defense, but that these concerns were unique to the case. The directive also referred to the 2017 case from Missouri, Trinity Lutheran Church of Columbia, Inc. v. Comer, where the Court decided that it is a violation of the First Amendment’s guarantee of free exercise of religion to deny religious organizations the ability to apply to a neutral and secular aid program.

Although Missouri’s constitutional language is very broad on the issue of providing government services to churches, as ThinkProgress’ Ian Millhiser wrote last year, the case was “an ideal vehicle for conservative lawyers to ask a conservative Supreme Court to endorse an expansive reading of the Constitution’s protections for churches.” The church was represented by the Alliance Defending Freedom (ADF), which supports recriminalization of homosexuality in the United States and has defended the state-sanctioned sterilization of transgender people.

Trump has signed many executive orders stressing religion. In May 2018, an executive order established a White House Faith and Opportunity Initiative, which consults with faith leaders. It also notifies the Attorney General of concerns from faith based and community organizations “about any failures of the executive branch to comply with protections of Federal law for religious liberty” as the Attorney General described in October of last year, when the Justice Department released its memorandum on religious freedom.

That memorandum was part of a broader effort that resulted from a May 2017 executive order that asks for agencies to work on “promoting free speech and religious liberty.” This order contained the words “deeply held beliefs,” words that have been used in bills and in cases fighting to enable discrimination against women and the LGBTQ community.

“We are giving our churches their voices back,” Trump said as he signed the order near two nuns who were from Little Sisters of the Poor, a plaintiff that took issue with the ACA’s contraception mandate, saying it would violate their religious beliefs to cover birth control as an employer.

Friday’s directive said that OFCCP staff can’t “condition the availability of [opportunities] upon a recipient’s willingness to surrender his [or her] religiously impelled status,” referring to the 2017 Trinity case, and must allow “faith-based and community organizations, to the fullest opportunity permitted by law, to compete on a level playing field for . . . [Federal] contracts,” referring to the establishment of a White House Faith and Opportunity Initiative. The directive will go through the normal rulemaking process, which includes public comment.

This directive is part of a string of agency decisions this year to focus on religious freedom. On Monday, the Labor Department appointed Steven Begakis as Wage and Hour Division policy adviser. Begasi has affiliations with the ADF, according to Bloomberg. He once wrote that the United States isn’t a free society for religious people and gave an example of “a Catholic business owner who refuses to pay for your employee’s abortion procedures.” 

On July 30, Attorney General Jeff Sessions announced that the Justice Department formed a task force to implement religious liberty guidance it introduced last year. In his announcement, Sessions referred to nuns being “ordered to buy contraceptives.”

In January, the Department of Health and Human Services announced the creation of a Conscience and Religious Freedom Division. In May, the People For the American Way and Right Wing Watch brought a lawsuit against The Department of Housing and Urban Development, who said administration officials are trying to imperil efforts to protect LGBTQ people, according to Newsweek. Activists said they want to know the reasoning behind why HUD removed a guidebook on training people on how to provide equal access to homeless shelters for transgender people and its elimination of pilot programs on decreasing LGBTQ homelessness.

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering economic policy and civil rights issues. Her work has been published in The Establishment, The Atlantic, The Crime Report, and City Limits.

This article was originally published at ThinkProgress on August 13, 2018. Reprinted with permission.

Will the Left Get Fooled Into Abandoning Worker Pensions?

Friday, August 10th, 2018

The ideological blinders of some on the left are aiding and abetting the right’s final assault on labor. Workers and their allies should be appalled, and they need to act quickly.

In the past decade, one of the few hopeful developments in an often bleak labor landscape has been the rise of a new form of activism built on the power of labor’s $3.5 trillion pensions. A new class of activists at the AFL-CIO Office of Investment, the American Federation of Teachers, the National Education Association, the American Federation of State County and Municipal Employees, the North America’s Building Trades Union, the Service Employees International Union, UNITE HERE, the California Public Employees’ Retirement System, the New York state and New York City and Illinois and Chicago and Los Angeles pension funds—and smaller state, county and municipal pension funds across the country—have begun to mobilize these funds to advance the interests of the workers who contribute to them.

Under their leadership, these pensions have invested to create union jobs for workers, who then strengthen the funds by contributing to them. They have fought privatization of public sector jobs, pushed back on outrageous Wall Street fees, attacked obscene executive compensation, forced disclosure of the CEO-worker pay ratio, resisted hedge fund attacks on pensions and in some cases divested from them entirely, and sued companies like Enron, Worldcom, and now Wells Fargo for fraud. They have divested from gun companies, demanded companies account for their environmental impact, hammered companies over sexual harassment and assault, and attacked pharmaceutical companies that fueled the opioid crisis. For all these reasons, these funds have come under withering attack from the right—empowered by the recent Janus case—which is using a controversy about the funding status of public pensions to ram through crippling reforms to undermine them. The left’s response has been silence and concessions. The left’s pension paralysis can be traced to its entirely ideological and outdated discomfort with what these pensions really are: labor’s own source of capital.  

The best example of this aiding and abetting of attacks on pensions is Doug Henwood and Liza Featherstone’s In These Times piece, “Wall Street Isn’t the Answer to the Pension Crisis. Expanding Social Security Is.” They then double down on their claims here. According to Henwood and Featherstone, pension funds are dead anyway because of systematic underfunding. In support of this conclusion, they cite the research of Joshua Rauh, a Stanford economist affiliated with the conservative Hoover Institution. Rauh is indeed a credible economist. But so is Alicia Munnell of the Boston College Center for Retirement Research, as is Dean Baker of the Center for Economic and Policy Research, and as are others who dispute the conclusion that these pensions are necessarily doomed nationwide, including Max Sawicky, who responded to the Henwood and Featherstone arguments here and here.

Wherever one stands on underfunding, there are cures for it that are worse than the disease itself. The conservative solution is to smash and scatter these pensions into millions of individually managed 401ks. The number one priority on the left should be to stop that from happening, not undermine resistance to this grim fate by scaremongering about the perils of pensions or comparing them to a nonexistent alternative. Turning all these funds into 401ks will do more than just subject workers to a retirement vehicle that has been renounced by its inventors and itself has its own indisputable underfunding crisis. It would also silence worker shareholder voice. This aspect of the argument is repeatedly misunderstood, dismissed, or ignored by parts of the Left.

The necessary precondition for these funds to be able to act on behalf of the workers who contribute to them is to be collective. A pension fund is like a union and a 401(k) is like right to work. Just as an individual worker has little say negotiating pay, benefits or working conditions alone, so an individual shareholder in a company has little say over the fees they are charged or how much the CEO makes. Just as workers are empowered through the collective voice of the union, so they are empowered in their retirement investments through the collective voice of the pension. Divide and conquer the pensions and you kill the shareholder voice that has enabled them to engage in the very activism that promotes their contributors’ interests.

And yet, Henwood and Featherstone’s substitution of Social Security for these pension funds would silence that worker-shareholder voice as surely as 401ks would. They blithely dismiss the power vested in these pension funds by citing three examples of how it has been used against workers. Indeed, this power has been abused, and more than three times. But a more balanced account of this power would also consider the stunning ways in which it has been used to advance worker interests. Ironically, one of the examples Henwood and Featherstone use in their article—KKR profiting off its investment in Safeway supermarkets while laying off workers—ended in a way that demonstrates the very shareholder power they deride and ignore, in which fed up worker pension funds like the California Public Employees Retirement System flipped the script, using their shareholder power to oust several KKR board members from Safeway, demote others, and punish its management for its attack on workers and their benefits. We are seeing echoes of that revolt today in the furious reaction of public pensions to KKR’s handling of the Toys R Us debacle, in which many labor’s capital institutions have pushed hard for Toys R Us workers to receive severance and are reconsidering their KKR investments, as Henwood and Featherstone acknowledge here. What other investors would do that?

On the other hand, they are quite correct to condemn outrageous investments by pension funds in businesses that kill workers jobs, particularly the jobs of the very workers who contribute to these funds. I agree and have argued against that practice here and here. But they make an unjustifiable logical leap in arguing that the solution to this problem is widespread divestment and ultimately abandonment of these pensions in favor of a larger Social Security system.

First, divestment. The left has fallen madly in love with divestment. When it comes to investment issues, we have just one move: Divest. But divestment is only one tool in the toolkit, and anyone who has looked carefully at the evidence must conclude that it is often not the best of the lot. Divestment from publicly held companies is often utterly pointless— pure political theater. Consider the Vice Fund (formerly the Barrier Fund), which invests in tobacco companies, casinos and alcohol companies because they sell addictive products and are often targeted for divestment. How many divesters have sold their shares to the Vice Fund? There’s no way to know. But if the shareholders buying your shares are indifferent to the concerns that prompted your divestment, it will have no effect, other than to make yourself look conscientious in a press release. As shareholder advocate Nell Minow has put it, “the day an activist shareholder divests is the day the CEO pops the champagne and breaks out the caviar.” Investors that stay and fight have had a significant impact, like prompting corporate action on the environment or reining in excessive CEO pay practices.

Yes, divestment can be appropriate at times. I applauded CalPERS’s divestment from hedge funds. I researched and told the story of how Dennak Murphy, a quiet SEIU capital strategist, helped to make that happen. Hedge funds have underperformed the market for over a decade and charge outrageous fees, making divestment from them as an asset class often a logical thing to do, though a report from the American Federation of Teachers Capital Strategies group illustrates how pensions could do better by cutting the fees they pay hedge funds. And it is also true that pensions that have stayed in hedge funds have been able to use their investments to push the funds to stop undermining teacher pensions.

Similar issues present themselves with private equity funds, particularly those engaging in practices that undermine labor. Divesting from private equity might undermine the industry. But it might not. It might instead result in the industry proceeding much as before, but without the only investors who care about labor and have any interest in protecting it. That would be KKR and Toys R Us but with no one pushing for worker severance packages. Alternatives exist. For years, ULLICO—founded by Samuel Gompers to provide life insurance policies for industrial workers when the insurance industry wouldn’t write such policies—has been making investments that require companies to use union labor. The AFL-CIO Housing Investment Trust similarly uses union capital to finance housing built with union labor. New York City recently adopted a responsible contractor policy for real estate and infrastructure investment requiring the hiring of responsible contractors who pay workers fair wages and benefits, inducing private equity fund Blackstone to adopt the policy for its infrastructure projects. In fact, the only reason we know about private equity’s many abuses is because the AFL-CIO’s Office of Investment pushed for the adoption of private fund registration in Dodd-Frank. In short, if properly deployed, labor’s capital can be utilized to advance the interests of workers, not just undermine them.

The spread of worker-friendly investment policies may be a far more powerful tool than divestment. It may, in fact, be critical to the future of labor if and when a national infrastructure spending project materializes, which is highly likely to contain some incentives for private sector funding. Scaling up New York City’s responsible contractor policy for private infrastructure investment could make the difference between whether America gets rebuilt using union or nonunion labor. But for such worker-friendly policies to succeed, you’ve got to have pooled investment funds that can implement them, not 401ks. And not just Social Security either.

There are several practical objections to the pursuit of a single-minded plan to expand Social Security. First, it is politically impossible in the near term; if anything, we will be lucky if we complete the year 2018 without it being cut back. Second, going all-in on Social Security implies that our retirement is more secure in the Washington of Trump, McConnell, and Ryan, or their future incarnations, than it is in Sacramento, Boston, or Albany. Third, if pension critics favoring this approach were being intellectually consistent, they would have to describe Social Security the same way they describe public pension funds. That means describing Social Security as zero-percent funded, since there are no funds actually set aside for it, anywhere. That’s a misleading description, but no more misleading than the arguments made about public pensions that Henwood and Featherstone so credulously accept. The federal government can pay for Social Security—even if it is technically zero-percent funded—just as all fifty states can pay for their pensions. Fourth, there is no good reason why we should not simultaneously pursue a policy of expanding Social Security while also fighting to protect worker pensions in collective form. But setting these aside, it’s wrong to argue that Social Security alone is the right ideal, because it entails forfeiting the shareholder power of pooled, collectively managed retirement funds.

One problem with Social Security is that workers contribute to it over a lifetime of work but have absolutely no say over how that money is used in the interim. In contrast, vehicles that set aside those contributions into actual funds with worker representation and often political representation on boards—like public pension funds, and like some sovereign wealth funds—have say over whether, for example, their funds should be invested in apartheid South Africa, not to mention giving workers say over CEO pay, corporate governance or labor practices. Such funds give workers voice in capital markets, arguably the most powerful force on the planet today. They are the 21st century model for retirement security, because they retain that shareholder voice. Social Security gives away all that power for nothing.

The only plausible argument for forfeiting this massive shareholder power is that it taints workers by making them complicit with the power structures of capital. (“Investing in the stock market achieves the opposite [of guaranteeing future security through social and physical investments]; it expands the wealth and power of Wall Street,” Henwood and Featherstone write.) And indeed, to an extent, participating in the market can make labor complicit in power structures that work against it. So does participating in electoral politics. So does bringing lawsuits. So does organizing into a union that negotiates, and compromises with, management. When running for office, suing, or organizing, you create and enter into power structures that may at times compromise you. The question is not whether this will happen—it will. The question is, would you be better off not voting, suing, organizing? In my view, the answer is no. That same “no” applies just as much to capital markets. Overall, you are worse off if you make no effort to exercise voice within them.

Henwood and Featherstone style their argument as a wake-up call to progressives to “get real” about the purportedly parlous state of pensions. Here is another “get real” wake up call to progressives: capital markets are going nowhere. When corporations operate globally, when capital can flee overnight or starve government functions through punishing bond yields, you cannot rely on the nation state alone to solve all your problems. If it’s the market that is causing those problems, you must have some say inside the market to solve them. You do not empower yourself in the 21st century by unilaterally surrendering your own shareholder voice any more than you empower yourself politically by not voting. Instead, you exercise that shareholder voice, learn to amplify it, organize it to advance the interests of the workers who contribute it, resist the hostile legal interpretations designed to choke it. You engage with it and you fight for it and you push to move it in the right direction. What you definitely do not do is walk away from it in favor of some fantastical, outdated, and nonexistent alternative that keeps you ideologically pure and powerless.

About the Author: David Webber is a law professor at Boston University and author of The Rise of the Working Class Shareholder: Labor’s Last Best Weapon (Harvard University Press 2018).

This blog was originally published at In These Times on August 9, 2018. Reprinted with permission. 

Employee Success Stories from the OSC

Thursday, August 9th, 2018

The Office of Special Counsel keeps federal agencies in check by holding them accountable for practices that violate the employment rights and civil rights of federal employees.

In its recap of Fiscal Year 2017, the OSC highlighted successful resolution of complaints about whistleblower retaliation, prohibited selection practices and other abuses.

Actions against federal whistleblower retaliation

In the fiscal year just ended in June, the OSC received more than 3,800 new complaints of Prohibited Personnel Practices (PPP). The highest number of cases that were favorably resolved involved whistleblower retaliation, which are top priority for the Office of Special Counsel.

Here are a sampling of whistleblower cases from the OSC’s FY 2017 report:

  • An employee was severely demoted after reporting suspected theft by an agency official. The OSC obtained a formal stay of the adverse action, and eventually she was reinstated with back pay plus compensatory damages. Facing suspension and reassignment, the official resigned from service.
  • An employee who raised red flags about overtime abuse was reassigned to menial work and received a poor performance appraisal. OSC intervention resulted in significant restoration: back pay and damages, an increased appraisal rating and rescission of Letters of Counseling.
  • A supervisor was subjected to a hostile work environment and a lowered appraisal after disclosing widespread corruption in her agency. The complaint to OSC resulted in full corrective action on her behalf, plus suspension for one official and suspension and demotion of another official.
  • An employee was slated for demotion and the dismantling of her program for disclosing that wait times for new patients were falsified. The OSC found no grounds for the adverse action. She maintained her position and program, and received substantial compensatory damages.

The retaliation list goes on. Revealing contract fraud. Calling attention to security lapses. Assisting union members in filing grievances. Affiliating with a known whistleblower. In each case, supervisors or high-level officials tried to punish or intimidate the whistleblower.

Prohibited practices in hiring, assignment and advancement

Another big category of OSC complaints is improper selection, failure to promote and related employment practices. Here are a few more success stories:

  • A supervisor who sat on an interview panel provided a favored applicant with the questions — and suggested answers — in advance. The supervisor received a 14-day suspension.
  • Two deputy assistant directors were asked to withdraw from consideration for advancement. When they declined, the vacancies were re-posted with new qualifications that the candidates did not possess. The OSC obtained a stay against the rigged hiring actions and took disciplinary action against the upper officials.
  • A supervisor who didn’t want to lose a valued employee to a different division promised a promotion in exchange for withdrawing from consideration for the other job. The promotion never happened. In a settlement, the employee was granted a promotion and back pay.

Not every PPP case ends so well for employees

The importance of legal counsel cannot be overstated. The OSC does not always side with the aggrieved employee or reach a favorable outcome. At the first sign of trouble, especially if your employment status or security clearance is in jeopardy, speak with an attorney who specializes in federal employment law.

There is a right way and a wrong way to assert your rights and seek redress. Depending on your agency and your circumstances, your case may proceed through the OSC, the MSPB, the EEOC or another investigatory body.

About the Authors: Founded in 1990 by Edward H. Passman and Joseph V. Kaplan, Passman & Kaplan, P.C., Attorneys at Law, is focused on protecting the rights of federal employees and promoting workplace fairness.  The attorneys of Passman & Kaplan (Edward H. Passman, Joseph V. Kaplan, Adria S. Zeldin, Andrew J. Perlmutter, Johnathan P. Lloyd and Erik D. Snyder) represent federal employees before the Equal Employment Opportunity Commission (EEOC), the Merit Systems Protection Board (MSPB), the Office of Special Counsel (OSC), the Office of Personnel Management (OPM) and other federal administrative agencies, and also represent employees in U.S. District and Appeals Courts.

This blog was originally published by Passman & Kaplan, P.C., Attorneys at Law on August 8, 2018. Reprinted with permission. 

Voters Just Killed Right to Work in Missouri, Proving Labor Still Has Power Under Janus

Wednesday, August 8th, 2018

After a string of victories across the country in recent years—including this summer’s Janus v. AFSCME Supreme Court ruling—the anti-union “right-to-work” movement has met its match in Missouri. 

In Tuesday’s primary election, Missouri voters overwhelmingly rejected Proposition A, a ballot measure that would have made the state the 28th in the nation to adopt a “right-to-work” (RTW) law. Designed to bankrupt organized labor, the deceptively named legislation would have prohibited private sector unions from collecting fair share fees from workers they are legally required to represent. 

With the defeat of Prop A in Missouri, the U.S. labor movement has passed its first major test since the Janus decision in June, in which the Supreme Court’s conservative majority essentially imposed “right-to-work” on the nation’s entire public sector.

“The timing of this is essential. I think everyone wants to write the labor movement’s obituary,” AFL-CIO Secretary-Treasurer Liz Shuler recently said. “It’s going to energize and activate us and show that we fight back.”

“It’s going to be the shot heard round the world,” AFL-CIO President Richard Trumka said last month, anticipating Prop A would lose. “It’ll make waves in Wisconsin and Pennsylvania and Ohio and Washington D.C. And it will provide a powerful rebuke of the Supreme Court’s disgraceful ruling in Janus.”

Since 2012, more states have passed RTW legislation than at any time since the 1950s. Even traditional union strongholds like Michigan and Wisconsin have gone “right-to-work.” Meanwhile, House Republicans have introduced a national RTW bill, which President Trump has promised to sign.

In states with “right-to-work” laws, median household incomes are $8,174 less than in non-RTW states, people under 65 are 46 percent more likely to be uninsured, infant mortality rates are 12 percent higher and workplace deaths occur 49 percent more often.

Missouri’s RTW legislation was initially signed into law last February by the state’s disgraced, now-former governor, Eric Greitens. A Republican backed by the Koch brothers and various “dark money” groups, Greitens served only 16 months as governor before resigning earlier this year amid a series of scandals and criminal allegations.

Greitens’ RTW law was supposed to take effect last August, but a coalition of labor groups led by the Missouri AFL-CIO gathered 310,567 hand-written petition signatures to block its implementation and force a statewide referendum on the legislation—Prop A.

Prop A was originally scheduled for this November’s general election, but this spring, the state’s Republican lawmakers moved it to the primary, worried that a high union turnout in November would be a boon to Democrats in hotly contested races. Described by Missouri AFL-CIO President Mike Louis as a “devious ploy,” the change marked the first time a referendum in the state has been moved to a primary election.

To defeat Prop A, union members and allies waged an aggressive get-out-the-vote campaign across the state, reaching some 500,000 voters through door-to-door canvassing and phone banking. They got help from actor and Missouri native John Goodman, who narrated a radio ad declaring that RTW “will not give you the right to work. Instead, it gives big business and out-of-state corporations the right to pay you less than they do now.”

All told, organized labor raised $15 million for the campaign to stop RTW in Missouri, outspending pro-RTW groups nearly 5 to 1.

This is not the first time Missouri voters have rejected RTW. In 1978, a similar state ballot initiative was defeated by a 60 to 40 margin, despite early polling suggesting an easy victory for “right-to-work” forces. That victory, however, was followed by a precipitous decline in the power of organized labor nationwide from the 1980s to today. Whether or not Tuesday’s defeat of Prop A signals a larger shift in labor’s fortunes remains to be seen.

If nothing else, Missouri voters’ rejection of RTW shows that the eulogies for organized labor post-Janus are premature. As Trumka says, “We’ve taken their best shot, and we’re still standing.”

This article was originally published at In These Times on August 7, 2018. Reprinted with permission. 

About the Author: Jeff Schuhrke is a Working In These Times contributor based in Chicago. He has a Master’s in Labor Studies from UMass Amherst and is currently pursuing a Ph.D. in labor history at the University of Illinois at Chicago. He was a summer 2013 editorial intern at In These Times. Follow him on Twitter: @JeffSchuhrke.

Proposition A: The right-to-work referendum on Missouri’s ballot, explained

Tuesday, August 7th, 2018

In February 2017, then-governor of Missouri Eric Greitens (R) signed a right-to-work bill drafted by the state’s GOP-controlled legislature. The bill made Missouri the 28th right-to-work state in the country and the sixth state to pass such legislation since 2012.

But the bill isn’t yet law, thanks to petitioners who gathered over 250,000 signatures to place the measure before voters as a referendum.

Missouri voters will head to the polls Tuesday to cast ballots on Proposition A, an up-or-down referendum on the right-to-work bill. If “no” votes prevail, the bill will die, giving unions a much-needed win during an administration that has made it their priority to cede power away from the workers in order to reward those at the top.

It also would be the first chance for voters to weigh in on union power since the U.S. Supreme Court ruled in Janus v. AFSCME last June that public sector employees cannot be compelled to pay union dues.

Right-to-work laws allow workers to opt out of paying union dues while still enjoying the benefits of a union contract, like higher wages, benefits, and protection against arbitrary discipline. The result is a “free-rider” problem, which drives down union membership rates, because if workers can get something for nothing, many of them will choose to do so.

Supporters of right-to-work legislation argue that the laws simply ensure that no worker is forced to be a member or pay fees to a political group with which they do not agree. That, however, is already forbidden by federal law. Unions are required to bargain on behalf of every worker in a unionized shop, regardless of whether or not a particular worker joins the union.

In order to avoid the free-rider problem, many union contracts provide for “agency fees” or “fair share fees,” which require non-members to contribute their share of   costs of negotiating and overseeing union representation.

State right-to-work laws make it more difficult to collect these fees, restricting union resources and hindering a union’s ability to negotiate for better wages, benefits, and working conditions for workers.

According to the Economic Policy Institute, there will be roughly 60,000 fewer union members in the Missouri private sector if the state adopts this law.

“Without collective bargaining we’re at risk of losing our health benefits, our retirement savings and being forced to take a pay cut,” Quiema Spencer, a 39-year-old pipe-fitter from Kansas City, Missouri told The Wall Street Journal. “I can’t afford that with the cost of living going up.”

The decline of union membership harms workers, both union and nonunion alike. Right-to-work states have lower rates of employer-sponsored health insurance and lower employer-sponsored pensions.

Right-to-work laws are also responsible for creating an atmosphere that forces families who work full-time jobs to live paycheck-to-paycheck or work multiple jobs in order to make ends meet.

In states where right-to-work laws are currently on the books, wages are roughly 3.1 percent lower — equal to about $1,560 less per year — than those in states without right-to-work laws. Multiple studies have confirmed that the decline of collectively bargained union contracts has led to the hollowing out of workers earnings. In one long term study from Princeton University, researchers found that unions have consistently “provided workers with a 10- to 20-percent wage boost over their non-union counterparts over the past eight decades.”

“What we’re simply trying to do in this study is to be able to say something systematic, historically, whether there seems to have been an inverse relationship between unionization and inequality, so that when unions were strong, inequality tended to be lower,” one of the researchers wrote. “A strong lesson is that when unions were strong and they were growing, they were organizing the less-skilled workers and raising their wages, and that tends to reduce inequality.”

Luckily for Missouri workers, union support against the proposition has been particularly strong. We Are Missouri, an anti-right-to-work group, has spent $15.2 million in an effort to block the bill from becoming law. That is roughly five times the amount two groups who support the law have spent, according to The Wall Street Journal.

About the Author: Rebekah Entralgo is a reporter at ThinkProgress. Previously she was a news assistant on the NPR Business Desk. She has also worked for NPR member stations WFSU in Tallahassee and WLRN in Miami.

This article was originally published at ThinkProgress on August 7, 2018. Reprinted with permission.

Trump Appointees Are Pushing a Deregulation Plan That Could Dramatically Erode Consumer Protections

Monday, August 6th, 2018

A year ago, high-cost payday loans that preyed upon at-risk borrowers looked to be under assault.

In October 2017, the Consumer Financial Protection Bureau finalized federal regulations to force payday lenders to consider whether borrowers could actually pay back their loans. Those rules, combined with a smattering of state laws that capped interest rates, were set to finally constrain the industry’s reach. Even the time-honored gimmick of using Internet sites or even Indian reservations to make payday loans nationally without abiding by state consumer protections faced resistance from state and federal law enforcement.

But now that framework is in tatters. CFPB acting director Mick Mulvaney has vowed to reconsider the payday rule and even unsuccessfully joined a payday lender in court to argue against his own agency’s regulation. Either Mulvaney or his Trump-picked successor will likely finish canceling the rule before it takes effect in August 2019. And state protections may be undermined by this week’s announcement that online lenders can apply for national bank charters.

The Office of the Comptroller of the Currency (OCC), which grants federal charters to banks, began accepting applications on Tuesday from financial technological (or “fintech”) firms like robo-stock advisors such as Betterment or lenders like SoFi or Lending Club. “The federal banking system must continue to evolve and embrace innovation to meet the changing customer needs and serve as a source of strength for the nation’s economy,” said Joseph Otting, who heads the OCC.

Otting’s announcement dropped just hours after the Treasury Department released a report recommending a national bank charter for fintech firms, to reduce “regulatory fragmentation.” The head of the Treasury Department, Steven Mnuchin, previously worked with Otting at OneWest Bank, where Mnuchin  served as chairman and Otting as CEO. So the main leadership of OneWest, which carries a short and notorious history, has worked in tandem to boost fintech firms.

It may make sense to bring this growing number of companies doing bank-like activities inside the bank regulatory infrastructure, so that federal regulators can more easily monitor the entire financial system. But giving fintech companies national charters could revive the ugly history of federal bank regulators pre-empting state consumer protections, which would prove disastrous for borrowers.

Under a national bank charter, fintech firms would not be allowed to take deposits, and would be subject to federal capital and liquidity standards and supervision by OCC bank examiners. If a company failed, the OCC would be responsible for unwinding it.

But OCC could also assert, as it often does with nationally-chartered banks, that its rules supersede those in the states in which these firms operate. That would include caps on payday loan interest rates at 36 percent, as is the case in Oregon and several other states. State prosecutors could even be prevented from supervising a fintech firm through examinations or subpoenas of records.

Fintech firms can currently operate nationwide by partnering with national banks on loans. But when it comes to issues like interest rate caps, they still have to abide by the rules of the state where their borrowers live. If a national charter were put in place, these firms could disregard those rules, with the OCC backing them up. That could enable online lenders to charge 582 percent annual interest, as is the average in Idaho, or potentially even more.

This kind of pre-emption was routine in the run-up to the financial crisis. In 2002, Georgia passed the strongest anti-predatory mortgage laws in the nation, but the OCC pre-empted the law for national banks, claiming that there was “no evidence that national banks are engaged in predatory lending practices.” This created a chilling effect, as, wary of a federal override, state legislatures simply stopped working on mortgage fraud laws.

A pre-emption for fintech could serve similar ends. Think about online lenders using Big Data to pinpoint vulnerable would-be borrowers. This targeting can steer people toward high-cost, predatory loans, and states would be powerless to act under consumer protection or even privacy laws. And don’t expect only niche operators to pile into this space—Google or Amazon Bank is lurking in the distance, armed with far more information on customers to use toward peddling loans.

In theory, the Dodd-Frank Act limits pre-emption, and provides states the option of suing banks. But per Dodd-Frank Section 1044, the OCC still could pre-empt state consumer finance laws at its discretion, if the agency determines that the law discriminates against national banks or “interferes with the exercise by the national bank of its powers.”

Dodd-Frank also states that the OCC could not stop the CFPB from enforcing its rules. However, those are precisely the rules scheduled for the chopping block by President Trump’s handpicked team. In its report, the Treasury Department also recommended that CFPB rescind the payday lending rule, ironically stating that “the states already maintain the necessary regulatory authorities.” But fintech firms could end-run those authorities, if armed with a national bank charter.

The Treasury report argues that demand for small-dollar loans is high, and placing “unnecessary regulatory guidance” on their use reduces access to credit for those who need it. At the OCC, Otting has even encouraged big banks like Wells Fargo and Bank of America to return to small-dollar lending, creating more options for borrowers. But state consumer protection rules exist to prevent outrageously high interest rates, multiple re-borrowing to pay off the previous loan, and deceptive practices that trap people in a seemingly permanent debt cycle. The public is clearly not clamoring to wipe out such laws that defend citizens from unscrupulous financial actors.

Trump’s gallery of deregulators cannot take credit for this proposal alone. Indeed, President Obama’s OCC chair, Thomas Curry, kicked this idea off in December 2016 by opening up the concept of national fintech charters for discussion. Curry knew he wouldn’t complete the charter before his term ended the following March. So he simply invented a tool for his successor to easily undermine state consumer protections.

And that successor predictably devised the worst possible version of a fintech charter, allowing for state pre-emption and even weakening requirements for community reinvestment for the fintech firms, according to House Financial Service Committee ranking Democrat Maxine Waters. “This action could allow online payday lenders to use a federal charter to skirt state usury laws and evade responsibility to reinvest in the communities where they are operating,” Waters said in a statement.

State banking regulators have called fintech national charters a “regulatory train wreck in the making.” New York’s banking regulator already tried once to shut down the OCC’s ability to grant national charters in court, but was turned away because the OCC hadn’t completed the process. We can expect that lawsuit to resume the moment the OCC bestows a charter on a fintech firm.

Until then, this development could expose borrowers to serious risk. Taking state regulators off the field at a time when federal regulators have gleefully handcuffed themselves leaves nobody to protect the public.

This blog was originally published at In These Times on August 2, 2018. Reprinted with permission.

About the Author: David Dayen is an investigative fellow with In These Times’ Leonard C. Goodman Institute for Investigative Reporting. He is a business, finance and labor reporter, and the author of Chain of Title: How Three Ordinary Americans Uncovered Wall Street’s Great Foreclosure Fraud, winner of the Studs and Ida Terkel Prize. He lives in Los Angeles, where prior to writing about politics he had a 19-year career as a television producer and editor.

Minimum wage increases are working for workers at the bottom, but the middle is getting squeezed

Friday, August 3rd, 2018

Here’s news that should make people who consider themselves securely in the middle class sit up and take notice. Major retail chains like Walmart have made a big deal of raising their minimum wage for entry-level workers. But what about experienced workers who’ve been in their jobs for years? If you’re guessing they haven’t seen equivalent raises, consider yourself a realist, not a cynic.

At Walmart, the world’s largest private employer, [six-year employee James] Collins says wages have remained flat — “$11, across the board” — for those around him since the company raised its starting wage in February. Managers, he says, have made it clear that pay increases are unlikely in his current position, where his responsibilities include cleaning up spills, emptying trash cans and maintaining bathrooms.

“A lot of people think it doesn’t take any skill to sweep a floor,” he said. “But after a while, you get fast at it, you develop a system for doing things well.”

It’s not just Collins and the workers around him. 

Wages for the country’s lowest-paid workers have increased 0.7 percent per year since 2007, while those in the middle — the 50th percentile — have gained 0.3 percent annually, according to an analysis of Bureau of Labor Statistics data by the Economic Policy Institute. (Also worth noting: The country’s highest-paid workers, those in the top 5 percentile, received wage increases of 1.3 percent per year during that period.)

In other words, minimum wage increases have helped the lowest-income workers and class war from above has helped the highest-paid workers, but the workers in the middle are increasingly squeezed. Those workers in the middle include the experienced Walmart worker or a Walmart store manager whose job has been eliminated and replaced with an assistant manager—Walmart has cut 3,500 store managers and replaced them with 1,700 assistant managers, saving money on both numbers and wage levels.

So if you think your years of experience and solid work history will protect you from the inequality economy, think again. If you think you’re too middle class to be worried about how much Walmart is paying its six-year employees, consider that James Collins made $19 an hour at a different job until he was laid off during the recession. Class war from above is coming for everyone but those at the very top.

About the Author: Laura Clawson is labor editor at Daily Kos.

This blog was originally published at Daily Kos Labor on August 3, 2018. Reprinted with permission. 

OSHA’s Rollback of the Recordkeeping Rule

Thursday, August 2nd, 2018

OSHA proposed last week to roll back parts of the “Electronic Recordkeeping” regulation that the Obama administration issued in 2016. The rule would have required certain employers to electronically send worker injury and illness information into OSHA. OSHA then intended to publicize the (non-confidential) information on its website. In a somewhat amusing, but Orwellian press release, OSHA portrays the rollback as an effort to “better protect” workers’ confidential information.

I finally had a chance to read the full OSHA proposal. Spoiler Alert: I’ve read a lot of OSHA regulatory proposals over my career and this one barely passes the laugh test, much less presents a serious argument for why this regulation should be weakened. Instead of an effort to better protect workers’ confidential information, this is a poorly justified attempt to protect employers from having to reveal potentially embarrassing information.

In other words, according to former OSHA official Debbie Berkowitz, “This is about the administration listening to employers who don’t want workers and the public to know about dangerous conditions.”

But even this partial rollback isn’t good enough for the Chamber of Commerce. According to Marc Freedman, the Chamber’s vice president of workplace policy, publishing any employer data on injuries and illnesses could also be used to unfairly malign businesses. “Not all injuries that have to be recorded reflect on an employer’s safety program. We don’t think they’ve fully taken care of the problem.”

Background

In order to fulfill the purpose of the Act, OSHA is authorized to require employers to record injury and illness information, as well as collect information on safety and health from employers, including injury and illness information. Consequently, OSHA has long required certain employers to keep injury and illness logs; specifically, OSHA Forms 300, 300A, and 301. OSHA Form 300 is a log of all injuries and illnesses, including names of worker injured or sickened. The 300A Form is a summary of that form that contains no names or confidential information. Employers are required to post that information in the workplace between February 1 and April 30 of every year. The 301 Form is a detailed description of workplace injuries that includes information about what happened and what the employee was doing just before the incident occurred.

On May 12, 2016, OSHA amended its recordkeeping regulation to require employers to annually submit to OSHA, by electronic means, injury and illness information that employers were already required to keep. Establishments with 250 or more employees in industries that are routinely required to keep records are required to electronically submit information from their OSHA Forms 300, 300A, and 301 to OSHA or OSHA’s designee once a year. Small businesses with 20 to 249 employees in certain designated industries are only required to submit information on the summary form 300A. Employers were already required to collect this information. The only change was that they were now required to send it into OSHA through a web-based electronic system that OSHA would develop.

Until the new regulation was issued, OSHA did not — with one exception — require any of that information to be sent in to OSHA. The main purpose of requiring employers to collect the information was to help them improve their health and safety programs, and OSHA Inspectors consulted the information when conducting inspections.  The one exception was OSHA’s collection of injury and illness information from around 80,000 employers every year, a program that lasted from 2006 to 2013 and was used to better target OSHA inspections in the most dangerous workplaces.

The 2016 rule had two phases. The first phase was submission of the Form 300A summary data which, after several delays, took effect last year. The second part, sending in information from the 300 Form and the  more detailed 301 data, was supposed to take effect this year. Submission of the 300 Log and the detailed Form 301 data are the requirements that OSHA is proposing to cancel in last week’s proposal.

What Were The Benefits?

The main purpose of this regulation was to help OSHA and the workplace safety and health community better determine why workers are getting hurt on the job and how to protect them more effectively. OSHA stated in the preamble of the 2016 regulation that the “data will improve OSHA’s ability to identify, target, and remove safety and health hazards, thereby preventing workplace injuries, illnesses, and deaths.”  Beyond enabling OSHA to better target the most dangerous workplaces, OSHA stated that the making the data public “will allow the public, including employees and potential employees, researchers, employers, unions, and workplace safety and health consultants, to use and benefit from the data. It will support the development of innovative ideas and allow everybody with a stake in workplace safety and health to participate in improving occupational safety and health.”

While the Bureau of Labor Statistics makes aggregate data available to the public, OSHA’s data collection would make much more detailed and site-specific data available to researchers. And the establishment-specific data would “enable OSHA to conduct rigorous evaluations of different types of programs, initiatives, and interventions in different industries and geographic areas, enabling the agency to become more effective and efficient. ”

Why Does Trump OSHA Want to Stop Collection of the Detailed Information?

But what seemed like a great idea two years ago, is not longer a great idea, according to OSHA, which is now

Amending its recordkeeping regulations to protect sensitive worker information from potential disclosure under the Freedom of Information Act (FOIA). OSHA has preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information. (emphasis added)

None of these statements are true nor are they effectively supported in the proposal.

1. Protecting Sensitive Worker Information: OSHA assured the public when it issued the original 2016 regulation that all confidential information would be protected. This would include the information on the left side of the 301 Form, specifically workers’ names, birthdates, names of their doctors, etc.  But OSHA now argues that it’s possible, despite unanimous and universal court decisions ensuring the confidentiality of that information, that some court in the country could someday allow that confidential information to be released to the public.

OSHA warns that “That risk remains so long as there is a non-trivial chance that any court in any of the nation’s 94 federal judicial districts might issue a final disclosure order after the exhaustion of all available appeals.” Arguing that the risk is “not speculative,” the proposal cites an organization that in 2017 “invoked FOIA to request that the Department produce electronically-submitted information from Forms 300, 300A, and 301.”

Note the emphasis that I added: “electronically-submitted information.” In order to ensure the security of confidential information, OSHA ensured that employers will not even submit information to OSHA that is confidential, such as names. If the information is not “electronically submitted” to OSHA, then there is nothing there to FOIA, even if some court, some day, goes rogue.

The other example OSHA uses to show that the risk is “not speculative” is a lawsuit by former OSHA employee Adam Finkel requesting information on OSHA employees who may have been exposed to toxic beryllium dust in the course of their jobs that OSHA lost in 2006. But Finkel never sought nor did he receive identifiable information, and the court only ordered the de-identified results to be handed over. OSHA’s use of this case in its argument is somewhat garbled, but they conclude that despite the fact that the court never ordered identifiable information to be released, “it is reasonably foreseeable” that a future court could.

“OSHA’s claim that it is proposing to revoke employer requirements to submit detailed injury data in order to protect employee privacy is truly cynical.  Workers and worker representatives strongly support the collection of this information to help identify workplaces with serious injuries in order to protect workers health.” — Peg Seminario, AFL-CIO Health and Safety Director

So, in conclusion, the “risk of disclosure” that OSHA is allegedly protecting workers from, is entirely speculative and not based only any real evidence outside the fevered imaginations of OSHA regulatory writers, undoubtedly egged on by the Secretary, the White House and corporate opposition to the whole concept of transparency.

And the workers that OSHA is supposedly protecting? As AFL-CIO Health and Safety Director Peg Seminario said in a statement to Bloomberg BNA,

“OSHA’s claim that it is proposing to revoke employer requirements to submit detailed injury data in order to protect employee privacy is truly cynical.  Workers and worker representatives strongly support the collection of this information to help identify workplaces with serious injuries in order to protect workers health. Only industry groups oppose these common sense requirements. The real reason for this roll back is to protect employers who don’t want workers or the public to know about dangerous conditions and hazards at their workplaces. “

2. Uncertain Benefits of the Original Regulation: OSHA has suddenly decided that the benefits of collecting and publicizing this data are now “uncertain.” Why? Because “OSHA has no prior experience with using the case-specific Form 300 and 301 data to identify and target establishments. OSHA is unsure as to how much benefit such data would have for targeting, or how much effort would be required to realize those benefits.” And the summary From 300 is adequate to enable OSHA to target the most dangerous workplaces.

In other words, because we’ve never done it before, there’s no way to figure out if it would be beneficial. So much for innovation.

But OSHA does have a point that the summary Form 300A should suffice for inspection targeting. And it’s also possible that OSHA at this point doesn’t have the staff or resources to fully analyze all the data they will be collecting. But the proposal completely ignores the main benefit of collecting and publicizing the data: the benefit the data will provide to outside researchers and the public.

3. The Costs to OSHA: Not only are the benefits uncertain, but because of the sheer volume of Form 301 reports, “to gain (speculative, uncertain) enforcement value from the case-specific data, OSHA would need to divert resources from other priorities, such as the utilization of Form 300A data, which OSHA’s long experience has shown to be useful.”

Also, OSHA would better spend its time and resources addressing the high level of non-compliance with requirements that employers send in severe injury reports and the summary 300 Forms. I’m not sure what resource-intensive efforts OSHA is making to ensure better compliance with those requirements (not much from what we hear), but enforcing this additional requirement would fall into the same basket.

OSHA is also estimating that getting rid of this requirement would save OSHA around $400,000 because it wouldn’t have to finish developing the data system to collect the data. Not much money saved there, and from my memory, the system was already finished, or very close to being finished at the end of the Obama administration, 18 months ago.

4. Costs to Employers: OSHA also cites the burden to employers of sending the data into OSHA. First, remember that the data being sent into OSHA has already been collected, so the only additional costs is actually sending it to OSHA. OSHA estimates that by relieving the nation of this burden, a total of $8.7 million will be saved. That’s not $8.7 million per employer — that’s $8.7 million for the entire country. The cost of workplace injury, illness and death in this country is over $250 billion per year. It wouldn’t take a whole lot of prevented injuries or deaths for this regulation to pay for itself.

According to OSHA, the benefits of eliminating the  threat to worker privacy may be unquantifiable, but this  unquantifiable (and probably non-existent) risk is nevertheless somehow “substantial” enough to outweigh the “uncertain” and “difficult to quantify” value that the information could provide to researchers, the public and OSHA

5. “Benefits” of Repealing the Requirement to Submit Forms 300 and 301 Information: OSHA has kindly attempted to describe the benefits of rolling this regulation back — or “better protecting” workers, as they say.

Sort of.

First, remember they argue that they are protecting workers from the risk that their confidential information will be disclosed. And, according to the OSHA proposal “The value of worker privacy is impossible to quantify, but no less significant because of that fact.”

Indeed.

Second, OSHA admits that the Form 300 and 301 information “could add enforcement benefits,” but, on the other hand, those benefits are “uncertain and difficult to quantify” — mainly because OSHA has never actually worked with this data before.

Therefore, the agency concludes that “the (substantial) benefits to worker privacy outweigh the (uncertain) foregone benefits to enforcement.”

In other words, according to OSHA, the benefits of eliminating the  threat to worker privacy may be unquantifiable, but this unquantifiable (and probably non-existent) risk is nevertheless somehow “substantial” enough to outweigh the “uncertain” and “difficult to quantify” value that the information could provide to researchers, the public and OSHA.

So “unquantifiable” somehow trumps “uncertain” in OSHA world.

Back in the day, logic like this would have been laughed out of the room and sent back to the drawing board.

The Good News

The only good news coming out of this is that OSHA had decided not to monkey with language in the regulation prohibiting employers from retaliating against workers for reporting injuries and illnesses. The Chamber of Commerce and other industry groups were upset that this provision could keep employers from imposing retaliatory drug tests or incentive programs that discourage workers from reporting injuries or illnesses.

If you’re interested, comments on this proposal must be submitted by September 28, 2018.

This blog was originally published at Confined Space on August 1, 2018.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and I spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).

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