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Posts Tagged ‘Department of Labor’

Trump's acting Labor secretary pick feared by unions

Monday, July 15th, 2019

Ian Kullgren March 9, 2018. (M. Scott Mahaskey/Politico)Patrick Pizzella, tapped by President Donald Trump on Friday to step in as acting Labor secretary, is a polarizing figure beloved by conservatives for his pro-business views and disliked by unions and Democrats for a history of opposing worker protections.

Pizzella, who has served as deputy secretary of Labor since April 2018, will take over following Labor Secretary Alexander Acosta’s resignation amid controversy over a plea deal that he brokered for wealthy sex offender Jeffrey Epstein as a prosecutor in Florida. Pizzella comes “highly recommended by Alex,” Trump told reporters Friday.

But Pizzella’s ascendance to the top of the agency tasked with enforcing labor protections is something unions have long feared. He worked alongside disgraced lobbyist Jack Abramoff to shield the Northern Mariana Islands from federal labor laws in the 1990s, and generally has favored easing workplace regulations.

“If the president is serious about helping working people, selecting Patrick Pizzella wouldn’t be the way to demonstrate that,” Randi Weingarten, president of the American Federation of Teachers, said in a statement. “My dealings with Patrick have been limited, but his dubious track record, including his association with Jack Abramoff, doesn’t bode well.”

Some Democrats on Friday urged Trump to put someone else in charge of the Labor Department. Rep. Rosa DeLauro (D-Conn.) said in a written statement that Pizzella‘s “checkered past on these issues — including lobbying with convicted felon Jack Abramoff on behalf of sweatshops and pushing anti-worker policies as a member of the Federal Labor Relations Authority — make him unfit to lead the Department of Labor.”

This article was originally published by Politico on July 12, 2019. Reprinted with permission. 

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.

Alexander Acosta stepping down as Labor secretary

Friday, July 12th, 2019

Ian Kullgren March 9, 2018. (M. Scott Mahaskey/Politico)Eliana JohnsonAnita Kumar

Labor Secretary Alexander Acosta is stepping down from his post, just two days after he held a news conference to defend a plea deal that he brokered for wealthy sex offender Jeffrey Epstein while serving as a U.S. attorney in Florida more than a decade ago.

President Donald Trump alerted reporters this morning of Acosta’s departure. “This was him, not me,” said Trump as Acosta stood beside him.

Trump, who saw Acosta largely as a source of favorable monthly statistics about unemployment and job growth, called Acosta “a great labor secretary not a good one” and “a tremendous talent. He’s a Hispanic man, he went to Harvard, a great student.” Trump indicated that he was satisfied with Acosta’s explanation for the plea deal in Wednesday’s news conference, saying, “He explained it.”

But Acosta has had a rocky relationship in recent months with other White House officials, including acting chief of staff Mick Mulvaney, over the perceived slow pace of deregulation at the department. And one person familiar with the situation said that although Trump initially thought Acosta handled the Epstein controversy well, over the last couple of days the president saw the negative press and didn’t like it.

“POTUS is not a fan of bad press, especially when other people make him look bad,” this person said.

Acosta, a 50-year-old Harvard-educated lawyer, came newly under fire for the lenient 2008 plea deal after Epstein was re-arrested July 6 in New York City and charged with sex trafficking. Under the earlier plea agreement, Epstein served only 13 months of an 18-month term and was permitted daily furloughs to go to the office. Epstein also was required to register as a sex offender and to pay restitution to his underage victims.

At the White House this morning, Acosta told reporters: “Over the last week I’ve seen a lot of coverage of the department of labor. And what I have not seen is the incredible job creation that we’ve seen in this economy. more than 5 million jobs, I haven’t seen that…. I do not think it is right and fair for this administration’s labor department to have Epstein as the focus, rather than the incredible economy that we have today.”

It’s an ignominious end for a son of middle-class Cuban immigrants who climbed his way up and made a name for himself in conservative social circles. Acosta led his resignation letter with mention of his parents and their desire to secure “the best opportunities for their son and grandchildren.”

“He’s been careful for his whole life, going to the right schools and connecting to the right people,” said a former administration official. “And now he’s just going to be remembered for Jeffrey Epstein.”

Things began to unravel for Acosta in November, when the Miami Herald published a lengthy reexamination of the case, and accelerated in February, when a district court judge ruled that the 2008 plea deal violated the Crime Victims Rights Act because Acosta never revealed the terms of the deal to Epstein’s victims before it was finalized. Also in February, the Justice Department opened an investigation into whether Acosta’s prosecution team committed professional misconduct in its handling the Epstein case.

Key details of Acosta’s plea agreement with Epstein were known to senators at the time Acosta was confirmed as labor secretary, though initially these seemed minor compared to domestic abuse allegations against Trump’s first pick for labor secretary, Andy Puzder. Acosta defended his actions at a congressional hearing this past April, saying he entered the case only after a state grand jury recommended that only one charge be filed against Epstein — a course of action that would have resulted in no jail time for Epstein, no restitution to victims, and no registration as a sex offender.

“At the end of the day Mr. Epstein went to jail,” Acosta said. “Mr. Epstein was incarcerated, he registered as a sex offender, the world was put on notice that he was a sex offender, and the victims received restitution.“

Acosta has suggested that he and his attorneys were worn down by Epstein’s all-star legal team, which included Alan Dershowitz and Kenneth Starr, the special prosecutor who investigated the Monica Lewinsky scandal in the 1990s. Among other tactics, the Epstein lawyers investigated the prosecutors looking for “personal pecadillos,” Acosta wrote in 2011 to journalist Conchita Sarnoff, whose 2016 book “TrafficKing” chronicled the Epstein prosecution. Acosta called these efforts “a year-long assault on the prosecution and the prosecutors.”

Acosta has also said that the full extent of Epstein’s alleged abuse wasn’t known at the time he struck the plea deal.

“Had these additional statements and evidence been known,” he wrote in a letter Sarnoff, “the outcome may have been different.”

Epstein aside, Acosta‘s relationships in the White House wore thin in recent months. Known for his careful demeanor, Acosta was privately accused by White House officials of slow-walking deregulatory efforts, such as business-friendly policies on overtime pay and shielding franchised companies from legal liabilities.

It took two years for DOL to issue a regulation outlining a program for privately led apprenticeships, a delay that irked the president’s daughter, Ivanka Trump. A former DOL official told POLITICO in June that she was “fed up” with Acosta.

Mulvaney curtailed Acosta’s rule-making authority shortly after taking office in January, requiring three White House aides to sit in on all the agency’s regulatory meetings. Then in May, the White House took the unusual step of ordering Acosta to fire his chief of staff, Nick Geale, after an internal review concluded that Geale’s interactions with employees — including frequent profanity-laced tirades — were damaging morale inside the agency.

Even as White House aides abandoned Acosta, the president himself remained content, in large part because of the favorable monthly employment statistics typically reported by DOL. Acosta went out of his way to praise the strength of the economy on social media, often mentioning the president by name.

“I feel very badly, actually, for Secretary Acosta,“ Trump said July 9. “I’ve known him as somebody that works so hard and does such a good job. I feel very badly about that whole situation.”

This article was originally published by Politico on July 12, 2019. Reprinted with permission. 

About the Author: Ian Kullgren is a reporter on POLITICO’s employment and immigration team. Before joining POLITICO, he was a reporter for The Oregonian in Portland, Ore. and was part of a team that covered a 41-day standoff with armed militants at the Malheur National Wildlife Refuge. Their efforts earned the Associated Press Media Editors grand prize for news reporting in 2017. His real beat was politics, though, and he spent most his time at the state capitol covering the governor and state legislature.

He is a native of the mitten state and graduated from Michigan State University, where he ditched most of his classes to work on The State News, the student newspaper. He’s a big fan of mountains, for hiking in the summer and skiing in the winter.

About the Author: Eliana Johnson is a White House correspondent at POLITICO. She previously served as Washington editor of National Review, where she led the organization’s 2016 election coverage. She has worked as a producer at the Fox News Channel, as a research associate at the Council on Foreign Relations, and as a staff reporter for the New York Sun, where she covered higher education. She graduated from Yale College in 2006 with a degree in History.

About the Author: Anita Kumar serves as White House correspondent and associate editor, covering President Donald Trump and helping organize and guide coverage for POLITICO’s White House team.

Kumar joined POLITICO in 2019 after covering the White House for McClatchy’s chain of newspapers for six years. She reported on Hillary Clinton’s campaign for president in 2016 and Barack Obama’s re-election campaign in 2012.

Prior to that, she worked at the Washington Post, writing about Virginia politics, and the Tampa Bay Times, writing about local, state and federal government both in Florida and Washington. She started her career at the News & Advance in Lynchburg, Va. and worked briefly at the News & Record in Greensboro, N.C.

A native Virginian, Kumar grew up in Charlottesville and attended the University of Virginia.

Kumar was elected to the White House Correspondents’ Association board in July 2018 for a three-year term. She appears regularly on television and radio.

Trump’s administration considers rule that would make it easier for businesses to exploit workers

Wednesday, February 6th, 2019

The U.S. Department of Labor plans to propose a rule that would reexamine worker classification, redefining who is given certain labor protections and who is not.

The boom of the so-called gig economy — as seen in ridesharing apps like Uber and Lyft and others like TaskRabbit and DoorDash — have raised questions about whether people providing these services should be classified as entrepreneurs or as workers.

Paul Secunda, professor of law at Marquette University, said the motivation for an employer-friendly Department of Labor to explore worker classification is very clear.

“Obviously employers want as many workers as possible to be independent contractors for the reasons that they don’t have to pay benefits, they are not subject to employment laws, and are at a real disadvantage bargaining with their employers,” Secunda said.

Secunda said such a rule would have profound effects on workers.

“It almost comes across as arcane and who cares? But if you can’t be considered to be an employee then all these laws are beyond your reach. You can’t organize. You can’t get minimum wage or overtime. You can’t get the protections of employment discrimination law. You can’t get consumer protections when it comes to pensions and health insurance. It’s really damaging. Those in the Trump administration, who are pro-business in a way that I don’t know we’ve ever seen before, are focused on it as a way to make it less expensive for these large companies to have labor and not pay for it.”

Bloomberg Law broke the news that the department would be looking at the issue after a spokeswoman told the outlet it will update the joint employer rule and then look at worker classification.

There are different tests and factors to determine whether a worker is an employee or contractor. The National Labor Relations Act uses what is known as a common law definition based on how much control the employer has over the worker, including factors such as bringing your own tools to a job, whether you get a W-2 or Form 1099, and how much direction you receive on how to provide the service or product.

Under the Fair Labor Standards Act, which the Labor Department administers and enforces, there is an economic realities test that asks how dependent someone is on the employer in question. The more dependent the person is, the more likely that person is an employee and not an independent contractor.

In January, the National Labor Relations Board (NLRB) ruled that the transportation service SuperShuttle was correct to call its airport van drivers contractors instead of employees. The NLRB said it was considered entrepreneurial opportunity since workers set their own schedules and have their own work vans.

Secunda said the ruling was a “radical departure” from the common law definition of employee that has been used under the NLRA for decades.

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“They’ve added a new factor called entrepreneurial opportunity which is nowhere to be found in any of the list of factors I’ve ever seen for the common law control. You could argue that some of these factors hint at such entrepreneurial control but it’s never been either discussed as the centerpiece of the test as it was in the SuperShuttle case nor has so much emphasis been put on it as it was in the SuperShuttle case,” Secunda said. “It is not just happenstance that this case was decided by the NLRB and then in the regulatory agenda you see the Department of Labor is thinking of trying to eventually change the definition or factor test in a way that is not surprisingly going to favor employers.”

One in five Americans is a contract worker, so the debate over who is an employee or contractor will only grow in importance. People who are considered freelancers, on-call workers, temp agency workers, and contractors increased from 10.5 percent to 15.8 percent between 2005 and 2015, according to Harvard and Princeton economists.

“It’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited.”

Many of these workers have pursued lawsuits in the past few years. A part-time driver sued Grubhub in 2015 and argued that he that was entitled to minimum wage, overtime pay, and reimbursement of expenses, since the company had a lot of control over his schedule. But last year, a U.S. District Court judge disagreed and said that because he never went through training, wore a uniform, or received performance evaluations, he wasn’t a traditional employee.

A federal judge ruled last year that Uber doesn’t have enough control over Uber Black, a limo service, to be considered an employer under the FLSA, since drivers are free to run personal errands, take naps, and smoke cigarettes between rides. In 2017, DoorDash, a food delivery company, reached a settlement with workers after they said they were misclassified as independent contractors. Although the agreement provided more protections for workers and clearer policies, it did not result in a change in worker status.

The online gig economy is “growing rapidly,” economists Seth D. Harris and Alan Krueger explain in a 2015 report on the modernizing labor laws. Harris and Krueger propose that there be a new legal category of workers called independent workers for people like Lyft drivers, who are neither traditional employees or independent contractors, since they have similarities to both categories. Although they can, in theory, choose when and whether to work, there are restrictions imposed by the company on how much they can charge customers. They suggest “extending many of the legal benefits and protections found in employment relationships to independent workers.”

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.

This article was originally published at ThinkProgress on February 6, 2019. Reprinted with permission. 

About the Author: Casey Quinlan is a policy reporter at ThinkProgress covering education and labor issues. Their work has also been published in The Establishment, Bustle, Glamour, The Guardian, and In These Times.

Secunda said that although the department will likely argue that these workers are entrepreneurs, there isn’t necessarily evidence to suggest that is how they should be characterized. Due to low pay, some drivers work extraordinarily long shifts.

“I think their entire emphasis here, entrepreneurial opportunity, brings the gig workforce into play,” Secunda said. “That term micro-entrepreneur — the idea that these people who are running their own little businesses — it’s hard to believe people are running businesses working 60 hours a week and making $10,000 a year. It doesn’t sound like a good entrepreneur to me. It sounds like an employee who is being exploited. But that’s their argument.”

This possible change would come after recent victories for businesses. In December, a federal appeals court ruled that an Obama-era standard that says joint employers can be held responsible for labor law violations and must bargain with contract workers’ unions was too broad. McDonald’s has been one of the companies at the center of this issue, after workers filed 291 complaints accusing the company of retaliation for a strike in the form of reduced work hours, disciplinary actions, and interrogations.

In September, the National Labor Relations Board issued a business-friendly proposed rule for an updated standard on joint employer status under the National Labor Relations Act. Under this rule, an employer is a joint employer “only if it possesses and exercises substantial, direct and immediate control over the essential terms and conditions of employment and… in a manner not limited and routine.”

The Labor Department plans to update the joint employer rule soon. The Labor Department has also recently moved to encourage states to conduct drug tests for people seeking unemployment insurance, which labor experts say would accomplish nothing but humiliation and more hoops for low-income people seeking relief.

Meanwhile, House Democrats are focusing on the Labor Department’s handling of its proposed tip-pooling rule, after reports that the department moved to hide findings that the rule would rob workers of billions of dollars every year. On Friday, Reps. Bobby Scott (D-VA), Keith Ellison (D-MN) Mark Takano (D-OR), and Suzanne Bonamici (D-OR) askedfor all economic analyses of the rule. Democrats have also called for an investigation into Labor Secretary Alexander Acosta after a Miami Herald report on his role in securing a plea deal for multimillionaire financier Jeffrey Epstein, who was able to avoid prison despite allegations that he sexually abused dozens of girls.

Undermining Worker Safety — Despite Laws and Shutdowns

Monday, February 4th, 2019

Regulatory doo doo — to use the technical term — seems to be where the Department of Labor is finding itself these days.  And Democrats in Congress along with the Department of Labor’s Inspector General are not amused.

At the request of Senator Elizabeth Warren (D-MA) and Congresspersons Bobby Scott (D-VA), Mark Takano (D-CA), Rosa DeLauro (D-CT) and Lucille Roybal-Allard (D-CA), DOL Inspector General Scott Dahl has agreed to Audit the Department of Labor’s regulator process. The main focus will be on the Wage and Hour Division’s proposal to allow 16- and 17-year-olds to operate power-driven patient lifts in nursing homes without supervision, as well as OSHA’s recent decision to roll back parts of the agency’s electronic recordkeeping regulation.

Regulations (and OSHA standards) are important. Congress passes laws like the Occupational Safety and Health Act or the Mine Safety and Health Act or the Clean Water Act, which give agencies a general mandate to protect workers and the environment. But regulations put meat on the bones of the laws. The OSHAct gives employers the legal responsibility to maintain safe workplaces and gived OSHA the authority to set standards and cite employers who violate those standard. And it’s the regulatory process that enables OSHA to issue those specific standards — like those protecting workers from falls, amputations, silica or asbestos exposure.

Rolling back “burdensome” regulations (along with cutting taxes and appointing more conservative federal judges) are the main reasons that otherwise more-or-less sane Republicans continue to support an ignorant, racist, malignant narcissist in the White House.

The business community and Republicans in Congress generally hate regulations, which is why you almost never hear them mention the word “regulation” without the words “job-killing” preceding it. In fact, rolling back “burdensome” regulations (along with cutting taxes and appointing more conservative federal judges) are the main reasons that otherwise more-or-less sane Republicans continue to support an ignorant, racist, malignant narcissist in the White House.

And there’s a process for issuing regulations and standards.  All government regulatory activity falls under the Administrative Procedure Act which ensures that agencies follow some basic steps when they issue new regulations or change existing regulations and lays out the basis for regulatory actions in the public record. New regulations or regulatory changes may not be “arbitrary, capricious, an abuse of discretion” and must be based on evidence on the record. The Occupational Safety and Health Act has many additional rules for issuing OSHA standards.  Regulations that were not developed (or rolled back) according to proper administrative procedure can be struck down by the courts.

In addition, the Data Quality Act requires the Office of Management and Budget (OMB) to issue government-wide guidelines that “provide policy and procedural guidance to Federal agencies for ensuring and maximizing the quality, objectivity, utility, and integrity of information (including statistical information) disseminated by Federal agencies.”

The legislators’ letter asked the Labor Department’s Inspector General (OIG) to investigate whether DOL had deviated from agency regulatory and data quality requirements when it issued the patient lift proposal. According to Deborah Berkowitz at the National Employment Law Project

In order to support this proposal, the Labor Department cited a ‘survey’ of Massachusetts vocational programs that purportedly demonstrated that the current policy ‘restricts’ young teens from being hired to work in nursing homes. Although the Department has ignored repeated requests from Congress and advocates to provide the survey for public review and comment, NELP has obtained a copy.

It became immediately clear why the Department wouldn’t produce the document. This seven-year-old survey, conducted using Survey Monkey, compiled responses from a scant 22 vocational programs in Massachusetts. Half the respondents did not even know what the policy was in the first instance.

The bottom line is that in this administration, when it comes to undermining worker safety and health, neither shutdowns, nor furloughs, nor well-established federal laws governing regulation can stop or even slow the priorities of the business community.

And as Suzy Khimm at NBC News points out, the child labor proposal is not the only area in which DOL is having problems:

The Labor Department is facing legal challenges over other deregulatory actions affecting workers. Last week, the department undid an Obama-era regulation requiring certain employers to submit detailed reports of workplace injuries electronically, arguing that it risked violating workers’ privacy. Last year, the department made it easier for small businesses and self-employed people to buy health insurance that does not comply with the Affordable Care Act. Both changes have spurred lawsuits alleging that officials failed to follow legally required procedures for rule-making.

Dahl is already investigating the Labor Department’s handling of a proposal to allow restaurant managers and owners to take workers’ tips and place them in a tip-sharing pool that includes bosses. Bloomberg Law reported last year that the administration hid its own projection that the change would allow management to skim $640 million in gratuities. (The administration later backed off the change.)

Meanwhile, the White House Office of Information and Regulatory Affairs (OIRA) has come under criticism not only for how agencies regulate, but when the regulate. As we’ve noted several times before, OSHA — and apparently the White House — were in such a hurry to roll back OSHA’s electronic recordkeeping rule that they managed to rush it out right in the middle of the government shutdown.  As House Education and Labor Committee Chair Bobby Scott said in a statement

“It is notable that despite the many important issues being neglected during this partial government shutdown, the administration found time to finalize a rule that shields employers from accountability for the health and safety of their employees. President Trump pledged to defend the American worker, but this is yet another decision that violates that promise.”

OIRA decided that it was allowed to move regulatory actions forward during the shutdown as long as the regulatory actions came from a funded agency (like the Department of Labor).  Some find that interpretation rather dubious. Quoted in Government Executive, Sam Berger, an attorney who worked for OMB during the 2013 shutdown now with the Center for American Progress,

pointed to the shutdown procedure standard being used in the Federal Register, as published in a bulletin by the National Archives and Records Administration. Under the Jan. 14 Justice Department guidance, he said in an email to Government Executive, “funded agencies [must show] delaying publication until the end of the [shutdown] would prevent or significantly damage the execution of funded functions at the agency.”

For OIRA, he said, the standard “is the same for any part of government that isn’t funded, but that works with funded agencies. If the rule is excepted (for example, necessary to protect life and property) then OIRA can bring staff on to review,” he added, arguing that OIRA can’t justify bringing back furloughed employees to process the OSHA rule. If the agency is funded (as is the Labor Department), “then OIRA can only bring staff on if not moving forward with the rule during the shutdown would prevent or undermine the funded function.”

The bottom line is that in this administration, when it comes to undermining worker safety and health, neither shutdowns, nor furloughs, nor well-established federal laws governing regulation can stop or even slow the priorities of the business community.

This blog was originally published at Confined Space on February 1, 2019. Reprinted with permission. 
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).

House Democrats plan to grill Labor Department officials about tip and child labor policies

Monday, November 12th, 2018

After winning back the House on Tuesday, Democrats plan to grill Labor Department officials about some of their proposals, which they have safety and transparency concerns about.

Democrats have long had questions about the U.S. Department of Labor’s approach on issues such as child labor in health care jobs and not informing the public about an analysis that did not favor one of their proposed regulations on tipping.

Rep. Bobby Scott (D-VA), who will be chair of the Education and Workforce Committee, told Bloomberg Law about his plans and said, “If you’re having a regulatory change, the law requires you to produce the evidence to support the change.”

In December, the department proposed a rule rescinding parts of Obama-era tip regulations and allow employers who pay the minimum wage to take workers’ tips. The department said it would allow “back of the house” workers, such as dishwashers and cooks, who don’t typically receive tips, to be part of a tip-sharing pool. But the rule wouldn’t actually prevent employers from just keeping the tips.

According to Economic Policy Institute research, tipped workers would lose $5.8 billion a year in tips as a result of this rule. Women in tipped jobs would lose $4.6 billion annually.

After doing an internal analysis of the proposal, Department of Labor decided to scrub it from its proposal after it also discovered workers would be robbed of billions of dollars. Staff then changed the methodology to get a more favorable analysis, but Labor Secretary Alexander Acosta and his team were reportedly unsatisfied with even that analysis, so with the approval of the White House, they took it out. Later reports from Bloomberg showed that White House’s Office of Information and Regulatory Affairs (OIRA) staff said the proposal of changes to tipped worker pay rules should include professional estimates of the impact for tipped workers but Mick Mulvaney, director of the Office of Management and Budget and acting director of the Consumer Financial Protection Bureau, worked with Acosta to scrap the analysis entirely, Bloomberg Law first reported.

In December, Saru Jayaraman, president of Restaurant Opportunities Centers United, a non-profit that advocates for improvement of wages for low-wage restaurant workers, said the proposed rule would push a majority-women workforce “further into financial instability, poverty, and vulnerability to harassment and assault.”

Democrats on the committee, as well as other Democrats in Congress, wrote a letter to the department in February stating that if the department withheld the analysis, it “raises serious questions about the integrity of the Department’s rulemaking process.” They also demanded more information about meetings and further communication about the analysis.

Democrats also wrote a letter to Acosta and Mulvaney in August citing their concerns about a department proposal to allow teenagers to work more hours in health care positions that under current regulations, are considered unsafe for them. The department has said that exempting power-driven patient lifts from these regulations makes sense because use of the equipment would be “safer for workers than the alternative method of manually lifting patients.”

The department has said that teenagers would have to receive 75 hours of training and at least 16 hours of supervision by a nurse in the proposed rule.

But in their August letter, Democratic lawmakers said they want scientific reviews from the National Institute for Occupational Safety and Health.

“While we believe in expanding job opportunities for young workers, I am sure you would agree that this should not be done at the expense of their health, safety, and lives,” Democratic members of Congress wrote.

This article was originally published at ThinkProgress on November 10, 2018. Reprinted with permission.

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.

A Dark Veil

Friday, July 20th, 2018

The Trump administration on Tuesday rescinded the Department of Labor’s “persuader rule” requiring companies to disclose any consultants or lawyers contracted for anti-union persuasion efforts. The most recent in a series of anti-worker regulatory rollbacks, the decision has drawn harsh condemnation from union leaders and working people.

When the Labor Department issued the rule in 2016, it was hailed as a win for workplace transparency. Workers would have the right to know when their bosses hired outside union-busters to influence organizing decisions.

Then-Secretary of Labor Tom Perez explained it would “ensure that workers have the information they need to make informed decisions about exercising critical workplace rights….Informed decisions are the best decisions.”

In the wake of Tuesday’s announcement, AFL-CIO National Media Director Josh Goldstein slammed the administration’s decision to shield the “sinister practices of employers and their hired guns.”

“By repealing the persuader rule, the Department of Labor is siding with corporate CEOs against good government and transparency,” Goldstein said. “They have thrown a dark veil over the shady groups employers hire to take away the freedoms of working people.”

This blog was originally published at the AFL-CIO on July 19, 2018. Reprinted with permission. 

Kavanaugh: Threat to Workers and to OSHA

Wednesday, July 11th, 2018

While most of the discussion of President Trump’s nomination of Brett Kavanaugh to the Supreme Court focuses on the possibility that he will be the deciding vote to repeal Rowe v. Wade or that the will bend over backwards to help Trump out of the Russia investigation, there is clear evidence that Kavanaugh is overly friendly to corporate America, and hostile to workplace safety, the Occupational Safety and Health Act and the environment.

In 2010 a killer whale dismembered and drowned a Sea World trainer, Dawn Brancheau, in front of hundreds of horrified men, women and children looking forward to a day of fun and frolic with sea animals. The whale that killed Brancheau had been implicated in three previous human deaths.

OSHA issued a $70,000 willful General Duty Clause Citation against Sea World and ordered the company to reduce the hazard by physically separating trainers from the whales. OSHA proved that Sea World and its employees knew from previous incidents and close calls that the all of its killer whales were dangerous, and that Tilikum, the whale that killed Brancheau, was particularly dangerous.  Experts also described a feasible means of protecting employees — actions that Sea World in fact implemented following Brancheau’s death.

The Occupational Safety and Health Review Commission upheld OSHA’s citation, and Sea World appealed to the Court of Appeals. The D.C. Circuit court decided 2-1 in favor of OSHA. The Court found that  “There was substantial record evidence that Sea World recognized its precautions were inadequate to prevent serious bodily harm or even death to its trainers and that the residual hazard was preventable,” and that there was substantial evidence that there were feasible means to protect employees without impacting the business. The majority opinion upholding OSHA’s action was written by Circuit Judge Judith Rogers. Also supporting OSHA was Chief Judge Merrick Garland.

The lone dissenter, opposing OSHA’s citation, was Circuit Judge Brett Kavanaugh.

According to former OSHA Assistant Secretary David Michaels, “In his dissent in the Sea World decision, Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.”

Judge Kavanaugh made the perverse and erroneous assertion that the law allows Sea World trainers to willingly accept the risk of violent death as part of their job.  He clearly has little regard for workers who face deadly hazards at the workplace.  —  David Michaels

Garland, as you may remember was nominated to the Supreme Court in 2016, following the death of Supreme Court Justice Antonin Scalia. Republicans, led by Senate Majority Leader Mitch McConnell, infamously refused to consider Obama’s nomination, allowing Trump to appoint Neil Gorsuch to the Court. And the lead attorney representing Sea World was Eugene Scalia, son of deceased Justice Antonin Scalia.

Are Whale Shows A Sport Like Football?

Kavanaugh calls OSHA’s action “arbitrary and capricious” because regulating the safety of killer whale shows is allegedly no different than regulating the safety of tackling in football, or speeding in sports car racing, or punching in boxing — things in which OSHA has never involved itself.  And just as you’d have no football if you didn’t have tackling, or no sports car racing if you didn’t have speeding, there would allegedly be no Sea World if there was no close human contact with killer whales.

One problem with this argument, as Rogers points out, is that no one — except Kavanaugh — claims that whale shows are a sport where you are there to see who “wins.”

Or, to put it more bluntly, people go to boxing matches to watch people punch each other, and go to football games to watch one team physically stop the other from scoring. But tourists — including small children — go to Sea World to watch attractive trainers lovingly interact with adorable sea creatures. Killer whale shows are not supposed to be modern gladiatorial contests where the audience looks forward to seeing whether the trainers will successfully keep their limbs attached or finish the show bleeding and dead at the bottom of a pool.

Not even Sea World made the football/car racing/boxing analogy, Rogers and Garland point out. By making that argument, Kavanaugh is just makin’ stuff up — adding his own opinions on matters that weren’t even part of the case.

Second, as the majority opinion points out, “physical contact between players is ‘intrinsic’ to professional football in a way that it is not to a killer whale show.” Spectators can take pleasure from a whale jumping out of the water and doing back flips even without close personal contact with a human trainer.

In fact, the show went on even after the OSHA citation. Following Brancheau’s death, Sea World implemented many of the controls that OSHA recommended in its General Duty Clause citation — and still managed to attract customers to the park — and even to the killer whale shows — without the close personal contact.

Hostility Toward OSHA

Kavanaugh’s dissent drips with hostility toward OSHA and a basic misunderstanding of the act and the principles — and law — behind it. Comparing killer whale shows to football, boxing, car racing, as well  as other “extremely dangerous” sports such as “Ice hockey. Downhill skiing. Air shows. The circus. Horse racing. Tiger taming. Standing in the batter’s box against a 95 mile per hour fastball….” etc., etc., Kavanaugh objects to OSHA’s “paternalistic” intervention because “the participants in those activities want to take part.”

And then goes on to state (cue the heroic music)

To be fearless, courageous, tough – to perform a sport or activity at the highest levels of human capacity, even in the face of known physical risk – is among the greatest forms of personal achievement for many who take part in these activities. American spectators enjoy watching these amazing feats of competition and daring, and they pay a lot to do so.

He then asks:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves – that the risk of significant physical injury is simply too great even for eager and willing participants? And most importantly for this case, who decides that the risk to participants is too high?

Not “the bureaucracy at the U.S. Department of Labor,” according to Kavanaugh.

Happily, Garland and Rogers were more knowledgeable about the Occupational Safety and Heath Act than Kavanaugh. They point out that the OSHAct puts the duty on the employer to create a safe workplace, not on the employees to choose whether or not they want to risk death — especially when the employer can make the workplace safer.

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.  Back then employers who maimed or killed workers often escaped legal responsibility by arguing that the employee had “assumed” the risk when he or she took the job and the employer therefore had no responsibility to make the job safer.  Maybe the worker even liked doing dangerous work.  Employers also escaped responsibility by showing that the worker was somehow negligent. (Interestingly, Sea World originally blamed Brancheau for her own death because she hadn’t tied her hair back.)

Kavanaugh’s idea of making America great again apparently hearkens back to a time before the Workers Compensation laws and the Occupational Safety and Health Act were passed.

Rogers and Garland were forced to remind Kavanaugh that the employer’s duty under the OSHAct isn’t reduced by “such common law doctrines as assumption of risk, contributory negligence, or comparative negligence.”

Workers Comp laws, originally passed in the early 20th century, were supposed to be no-fault. It didn’t matter who was at fault, if the worker was hurt, the worker got compensated.  And the OSHAct, passed in 1970, further states clearly and unequivocally that the employer is responsible for ensuring that the workplace is “free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees,” and sets up a mechanism to enforce the law and penalize employers who violated it.  Even if the macho employee wants to defy death, the law states that the workers may not work at heights without fall protection or go down into deep trenches without shoring. And it’s the employer’s job to make sure that employees are not endangered.

Did Brancheau enjoy her job? Undoubtedly.

Did she “willingly accept the risk of violent death as part of their job?”  Unlikely. And legally irrelevant.

Did she deserve a safe workplace? Absolutely.

Nothing New Under the Sun?

Kavanaugh also objected to OSHA’s citation because the agency allegedly “departed from tradition and stormed headlong into a new regulatory arena.”

Well, first, Congress put the General Duty Clause into the OSHAct to address “unique” recognized hazards for which there is no OSHA standard.

Second, objecting to OSHA “storming into a new arena” brings back memories of the arguments used by previous OSHA heads, politicians and the health care industry when unions petitioned the agency in the late 1980’s for a bloodborne pathogens standard to prevent HIV infection and over 300 health care worker deaths a year from hepatitis B. At that time, infectious diseases were “a new regulatory arena.” Thankfully, Judge (or Justice) Kavanaugh wasn’t around then to rule on that standard. Thousands of health care workers owe their lives to OSHA’s move into the “new regulatory arena” of infectious diseases.

Bad for the Environment

Ken Ward of the Charleston Gazette-Mail reminds us that Kavanaugh is not only anti-worker (and anti-OSHA), but also anti-environment (and anti-EPA). In 2011, Kavanaugh was the lone dissenter in a case where Arch Coal had challenged the Environmental Protection Agency’s authority to cancel a mountain-top removal permit that had been issued by the U.S. Army Corps of Engineers. The 2,300-acre Spruce operation that would have buried more than seven miles of streams.  “The EPA cited the growing scientific evidence that mountaintop removal mining significantly damages water quality downstream and noted an independent engineering study that found Arch Coal could have greatly reduced the Spruce Mine’s impact.”

Kavanaugh’s argument is that EPA didn’t do a proper cost benefit analysis. Suddenly becoming a champion of working people and unions (at least when it benefits the company), Kavanaugh argued that EPA had failed to factor in the costs of  putting more than 300 United Mine Workers union members out of work.  Once again, Kavanaugh was making stuff up (legally). Arch Coal hadn’t even made that argument.

Kavanaugh also criticized the agency’s examination of potential damage to aquatic life as an “utterly one-sided analysis.” Perhaps the fish had also “accepted the risk” of living in streams near coal deposits.

One of the judges in the majority was an Ronald Reagan pick, and the other was appointed by President Obama.

Conclusion

Kavanaugh stated at last night’s press conference that one of his legal principles is that “A judge must interpret statutes as written.”  He might have added that to interpret the law as written, one must first read and understand the law.

He also warmly told the world that his mother was a prosecutor whose trademark line was: “‘Use your common sense. ‘What rings true? What rings false?’ That’s good advice for a juror and for a son. ”

Indeed it is. And maybe he could explain to the parents and husband of Dawn Brancheau why it rings false to him that the company responsible for their daughter’s safety should be held responsible for her death —  and held to the same standard as every other employer in the country.

Until he does that, he doesn’t belong on the Supreme Court.

This blog was originally published at Confined Space on July 10, 2018. Reprinted with permission. 

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

When Workers Don’t Get Paid: 3 Contributors to Wage Theft

Monday, July 9th, 2018

Wage theft, sometimes known as time theft against employees, has been in the news a lot lately. That’s due to a study by the Economic Policy Institute (EPI) and another by Elizabeth Tippett of the University of Oregon, featured on NPR’s Planet Money podcast.

Recently, TSheets, a time tracking software company, ran a survey of their own. Their survey found just under 10 percent of employers admit to taking time off employee timesheets every day. Over 60 percent of those take off 30 minutes per day or more. Applied to the broader, hourly workforce across the U.S., TSheets estimates workers are losing out on $22 billion in earnings each year. Here are three known factors contributing to those billions lost.

Wage theft contributor 1: Unpaid breaks

The government has some stipulations in place when it comes to breaks for meals, namely “The employee must be fully relieved from duty for the purposes of eating regular meals.”

The trouble is, some employees, particularly those in the healthcare or education sector, aren’t often able to walk away from their work completely. They end up working straight through their lunch, even while clocked out. For them, it’s tough to take time off when part of their performance, and potentially their compensation, is based on their responsiveness.

The best solution — both from an employee perspective and from employers who want to avoid an expensive FLSA lawsuit — is to figure out how to accommodate employee breaks, so individuals are free to take advantage of that time of rest. At the very least, employers should be talking to employees and getting their input on how to improve the situation.

Wage theft contributor 2: Timesheet rounding

Timesheet rounding is a setting in time tracking software that rounds an employee’s time when they clock in or out to the nearest minute, five minutes, or 15 minutes. It’s common for an admin to set up rounding to the nearest minute, as payroll solutions like QuickBooks aren’t set up to process seconds.

But whether a company rounds to the nearest minute or the nearest 15 minutes isn’t the problem. It’s the direction in which the rounding occurs. Say an employer has set timesheet rounding to go up to the nearest five minutes when an employee clocks in, but down to the nearest five minutes when an employee clocks out. When the employee comes in at 8:31, the timesheet shows 8:35. When they clock out at 5:04, the timesheet shows 5:00. That employee has missed out on 8 minutes of paid time.

This problem becomes all the more challenging when the time tracker is set to round to the nearest 15 minutes. On this matter, the U.S. Department of Labor states employers cannot always round down. “Employee time from one to seven minutes may be rounded down, and thus not counted as hours worked, but employee time from eight to 14 minutes must be rounded up and counted as a quarter hour of work time. See Regulations 29 CFR 785.48(b).”

Wage theft contributor 3: Unpaid overtime

Did you know it’s illegal to withhold wages, even when those wages include overtime an employee has worked without consent or prior approval from a manager? The Department of Labor makes it very clear that “work not requested, but suffered or permitted is work time.” That means it doesn’t matter if the employee worked when they weren’t supposed to — they must be paid for the time they put in.

Many employers are also unaware that some travel time is considered eligible for overtime pay. For instance, while the time spent commuting from work to home or vice versa shouldn’t be counted, the commute from home to a job in the case of an emergency could be. Travel made on behalf of work, in some instances, also has the potential to be counted as overtime.

Wage theft conclusions

Wage theft is a complicated issue, and it’s one that employees and the lawyers, HR personnel, and union reps who represent them should be educated on. If you suspect an employer is taking wages from employees, it’s a good idea to contact your state’s labor agency to learn more about wage theft claims in your state.

Next, employees should try to find out if their employer rounds timesheets (and in which direction), in addition to documenting all hours they’re supposed to be paid and comparing those times to the ones listed on their paystubs. If the numbers don’t line up, it might be time for a conversation.

Everyone deserves to be paid for the time they put in. When employers intentionally or unintentionally violate that right, it isn’t just morally reprehensible — it’s against the law.

About the Author: Danielle Higley is a copywriter for TSheets by QuickBooks, a time tracking and scheduling solution. She has a BA in English literature and has spent her career writing and editing marketing materials for small businesses. Last year, she started an editorial consulting company.

Today’s Bad Idea: Merge Labor and Education Departments

Thursday, June 21st, 2018

The Trump administration today proposed to merge the Department of Labor into the Department of Education.

While some have suggested that the new department be christened the “Department of Child Labor,” the Trump administration has come up with the “Department of Education and the Workforce.”

Some may be experiencing a sense of déjà vu at this name change.  In 1995, the newly elected Republican majority in the House of Representatives changed the name of what had always been the Education and Labor Committee to the Education and Workforce Committee. Democrats replaced “Workforce” with “Labor” when they regained the majority in 2007, and the Republicans duly changed it back to “Workforce”when they regained the majority again in 2011.

In short, the word “labor” sounds too much like “labor movement” and those nasty, unpleasant, trouble-making labor unions.

We’ll see what happens when the Democrats retake the majority after the November elections.

Some have suggested that they could christen the new agency the “Department of Child Labor”

While the alleged purpose of this merger is to consolidate vocational skills training programs in one agency, the real goal is, as the Washington Post describes, to build “on Trump’s pledge to shrink the size and scope of the federal government, a long-sought goal of conservatives.”  And of course, draining the swamp:

“This effort, along with the recent executive orders on federal unions, are the biggest pieces so far of our plan to drain the swamp,” Mick Mulvaney, director of the Office of Management and Budget who has led the 14-month reorganization effort, said in a statement. “The federal government is bloated, opaque, bureaucratic, and inefficient,” he added.

Now, there are several reasons why this is a bad idea. Chris Lu, Deputy Secretary of Labor during Obama’s second term notes that only parts of DOL and Education deal with worker training. Most of the Department of Labor consists of enforcement agencies like OSHA, MSHA, Wage & Hour and OFCCP that protect workers’ health and safety, pay, benefits and anti-discrimination rights.

And while neither OSHA, nor MSHA, nor enforcement were mentioned by Mulvaney, the idea of turning OSHA and MSHA into educational agencies that just provide education,  training and fact sheets to employers is probably appealing to Republicans and the business community.

Seth Harris, who was Deputy Secretary of Labor under Obama’s first term, calls the proposal “a solution in search of a problem” and predicts that it’s not going to happen. Any major reorganizations of Cabinet departments require Congressional approval — which means 60 votes in the Senate — and that’s not going to happen any time soon.

These type of major reorganizations rarely succeed because there are too many powerful organizations that have an interest in maintaining the status quo.  Lu notes that “there are also training programs at HHS, Interior, USDA, EPA, VA, DOD, DOJ. Shifting all of those programs would cause a firestorm on Congress and with outside groups.”

The National Employment Law Project points out that the Trump administration’s track record on labor issues doesn’t exactly inspire confidence that this proposal is being done in the best interests of workers:

This latest half-baked idea is just one more betrayal of the very workers Donald Trump pledged to put front and center when he took the oath of office. Since then, his administration has—among other things–relaxed protections for workers’ retirement savings, weakened overtime pay rights, attacked workers’ unions, rolled back important health and safety protections that would protect workers from hazardous substances on the job, and pushed through a massive tax bill that further enriches corporations and the nation’s wealthiest at the expense of workers and their families.

So if swamp draining is the goal, I have a few suggestions.  Merge ethically challenged Cabinet officers like Scott Pruitt, Ryan Zinke, Wilbur Ross, Ben Carson and Betsy DeVos with the unemployment office (even though only Pruitt would probably need the assistance.)  Then get these agencies back to accomplishing their missions: protecting workers, the environment, public housing and public schools) and, as Chris Lu says, “fill vacant positions with competent people, provide agencies with sufficient funding, and stop denigrating federal employees. ”

This blog was originally published on June 21, 2018 at Confined Space. Reprinted with permission. 

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

Full of Surprises: OSHA Spring Regulatory Agenda Released

Thursday, May 10th, 2018

When Spring is in the air, this man’s fancy turns to (where else?) the 2018 Spring Regulatory Agenda to discover  what movement OSHA will be planning to move forward (or backward) to protect American workers from injury, illness and death in the workplace.

And the news is not totally bad this time around.

The good news from the new Regulatory Agenda is that OSHA has moved several items from the Long Term Agenda to the Short Term Agenda — Emergency Response and Preparedness, an Update to the Hazard Communication Standard, Tree Care, and Preventing Workplace Violence in Health Care and Social Assistance.  The Long Term Agenda generally means that the next major action (such as an official proposal) is more than a year in the future, either because the item has been deliberates sentenced to purgatory, or because there is simply too much work to get to the next major stage within a year. (Katie Tracy of the Center for Progressive Reform has put together this handy chart to save your eyesight and help with translation.)

The other good news is that nothing was removed from OSHA’s Regulatory Agenda. Previously, the Trump administration had removed such important items as combustible dust, noise in construction, several chemical standards and protections for workers at risk from being backed over by construction vehicles.

SBREFA: One Step Forward

The Labor Department has announced an ambitious schedule of OSHA small business review (SBREFA) panels for the next year covering  Communication Tower Safety (May 2018), Emergency Response (October 2018), Workplace Violence (February 2019) a Hazard Communication Standard update (February 2019), Tree Care (April 2019).

SBREFA is a process where OSHA and the Small Business Administration’s Small  Business Advocacy office organize panels of “Small Entity Representatives” (SERs) — actual small business owners or health and safety staff — to discuss the impact of a possible standard on their industry based on preliminary economic and feasibility information compiled by OSHA. Based on the comments of the SERs, OSHA and SBA issue a report within four months of initiation of the panel, which informs the next major stage of the regulatory process — the proposal.

The SBREFA process was created under the Gingrich Congress in the mid-90s to provide small businesses with a first bite of the regulatory apple. (One might ask why the normal public comment process doesn’t provide the same opportunity, and why labor wasn’t also given a similar early bite?)  SERs generally advise OSHA that no new standard is needed, thank you very much. But they also frequently provide some useful information that OSHA later uses to tweak the proposal to address some small business concerns.

Now, this is a pretty darn ambitious regulatory schedule — five SBREFA panels in a year — especially for an anti-regulatory Republican administration. That is certainly a good thing, and especially good to see workplace violence among those panels. But there are several caveats that need to be raised.

First, I’m a more-than-a-bit skeptical they can keep to this schedule — especially since the first one is scheduled for this month.  Given the work involved here, the other smaller items OSHA is moving forward on, and the resources being put into deregulatory actions on beryllium and recordkeeping, plus the 10% cut sustained by the standards budget last year, it’s hard to see them keeping to this schedule. On the other hand, we’ve seen no forward movement on any regulatory items in the first 16 months of this administration, so it’s possible that significant preparatory work has been going on behind the scenes.

The second caveat is that these are only SBREFA panels.  The next major step is an actual proposal, which contains a proposed regulatory text and several hundred pages of “preamble” with in-depth analysis of significant risk, economic and technological feasibility. Written comments on the proposal are then solicited and a hearing is generally held — a hearing that can last days or weeks, depending on the size and complexity of the proposed standard.

Depending on the size and complexity of the standard, it can often take one to three years to get from SBREFA to a proposed standard, and then several years to get to a final standard from there.

In addition, don’t forget Trump’s “One in/Two out” Executive Order (EO) that requires agencies to repeal two standards or regulations of equal cost for every one that’s added.  While I have yet to see this EO invoked, it is assumed that the agency would have to determine which two standards are going to be revoked by the time they get to the proposal stage. Given that it takes almost as much work to revoke an old standard as it does to issue a new standard, OSHA would essentially be forced to conduct three rulemakings (one for the new rule, and two for the revoked rules) for every new rule it wants to add.  And all that is assuming that the agency can figure out which protections workers will lose when, for example, communications tower workers gain protections.

The bottom line is that none of these new standards are likely to see the light of day during this Presidential term. But any forward movement is always welcome.

There are a few small items — revisions, corrections and small updates — that are moving to the proposal and final stages — the most significant of which is the long-awaited fourth iteration of the Standards Improvement Project (SIPS) where small improvements and updates are made to numerous standards in a single rulemaking.

And Two Steps Back

Still languishing on the long term agenda are OSHA standards dealing with infectious disease and Process Safety Management which covers safety in chemical plants. Both of these had SBREFA panels during the Obama administration  They’re both fairly major rules which means a) they involve quite a bit of work to get to the proposal stage, b) OSHA budget cuts will slow the process further, and c) given their likely cost, this administration will undoubtedly be reluctant to move forward on them and hard-pressed to find protections of equal cost to remove. Slow movement on the infectious disease standard is especially disappointing considering news of another Ebola outbreak in the Democratic Republic of the Congo., a recent severe flu season and the coming of mosquito season as the weather warms.

The bad news, of course, is that the most significant regulatory movement by OSHA continues to be in reverse with a proposal undermining beryllium protections for construction and maritime workers, delay in full implementation of the beryllium standard for general industry employees and a proposal to roll back some provisions of the electronic recordkeeping standard, which OSHA is predicting for sometime in July.

The National Employment Law Project also points out DOL backsliding in protection of young workers, action at the Department of Agriculture weakening protections for meat processing workers and EPA’s actions that could result in more worker exposure to toxic pesticides.

This blog was originally published at Confined Space on May 10, 2018. Reprinted with permission.

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

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