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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).

As shutdown becomes longest in U.S. history, federal employees sue over working for no pay

Monday, January 14th, 2019

The government shutdown dragged on for a 22nd day on Saturday, making it the longest in American history. On Friday, 800,000 federal employees went without their paychecks. And though President Trump insists “the buck stops with everybody,”  51 percent of Americans are placing blame for the shutdown him and him alone, according to a Reuters/Ipsos poll.

On Friday, federal employee unions filed a lawsuit accusing the government of violating federal labor laws by forcing “essential” employees to continue to work through the shutdown, even though they aren’t being paid. These unions — the National Federation of Federal Employees, the National Association of Government Employees, the National Weather Service Employees Organization — have sued in the U.S. Court of Federal Claims. They allege that by not paying workers minimum wage and overtime, the federal government is violating the Fair Labor Standards Act.

In a statement, NFFE National President Randy Erwin said:

“In this country, when a worker performs a day’s work, he or she is entitled to a day’s worth of compensation. That is how working people provide for their families. Because of the chaos this wasteful government shutdown is causing, the government is trying to pay people in I.O.U.s. With this lawsuit we’re saying, ‘No, you can’t pay workers with I.O.U.s. That will not work for us.’”

The National Air Traffic Controllers Association also sued the federal government Friday, as its workers, too, work sans pay throughout the shutdown. Their lawsuit argues that the administration is in violation of the Fair Labor Standards Act as well as the Fifth Amendment, asserting that it “unlawfully deprived NATCA members of their earned wages without due process,” as the group wrote in a press release. According to The Hill, NATCA is asking for a hearing on its motion for a temporary restraining order against the government.

Politico reports that the Office of Management and Budget is working on “a special mid-cycle pay disbursement for impacted agencies” so that employees can be paid swiftly — that is, once the shutdown ends.

One thing that would not end the shutdown, according to the White House, is the declaration of a national emergency, a move Trump is said to be giving serious consideration.

Sources told Politico that White House officials have urged congressional Republicans to manage their expectations about the shutdown coming to a speedy conclusion in the event that Trump declares a national emergency at the border.

This article was originally published at ThinkProgress on January 12, 2019. Reprinted with permission. 

About the Author: Jessica M. Goldstein is the Culture Editor for ThinkProgress.

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).

The Trump administration has started rolling back the birth control mandate

Thursday, June 1st, 2017

Federal officials, under orders by President Donald Trump, have drafted a rule to roll back the Obama-era mandate that birth control be included under all employer insurance plans.

The final shape of roll back is still uncertain: The White House Office of Management and Budget (OMB) website says that it is reviewing the “interim final rule” to relax the requirements on preventative services. The rule change is specifically aimed at accommodations for religious organizations, some of whom have strongly objected to requirements that they include birth control coverage under their insurance for employees.

Typically, when an agency considers changing a rule?—?which can have immediate and sweeping policy impacts?—?they publish a preliminary version, solicit comments from the public, and incorporate the feedback into revisions before handing down the final change. If the OMB is reviewing the interim final rule, however, that means the rule has already been drafted by the relevant agencies and is in the last step before being published, according to the National Women’s Law Center.

“We think whatever the rule is, it will allow an employer’s religious beliefs to keep birth control away from women. We are sure that some women will lose birth control coverage,” Gretchen Borchelt, the vice president of the National Women’s Law Center, told the New York Times.

Under the current rules, implemented under President Obama, birth control coverage is considered part of preventative medical care and must be covered by all insurers with no co-pay. The mandate has guaranteed an estimated 55 million women access to birth control and other preventative services at no additional cost to them, regardless of their employer.

In 2013, the mandate saved women $1.4 billion on birth control pills, and since the law went into effect, there has been a nearly 5 percent uptick in birth control subscriptions, according to the NWLC. The increased access to contraceptives has also correlated with a sharp drop in unintended pregnancy and abortion rates.

These public health outcomes make it easy to see why the requirement has been widely lauded by women’s health advocates and providers.

“Without question, contraception is an integral part of preventive care; women benefit from seamless, affordable access to contraception, and our health system benefits as well,” the American College of Obstetricians and Gynecologists (ACOG) said in a statement about the mandate. “ACOG strongly believes that contraception is an essential part of women’s preventive care, and that any accommodation to employers’ beliefs must not impose barriers to women’s ability to access contraception.”

The law has been hotly contested, however, by religious organizations who object to having to include birth control in their insurance plans. Trump seized on their complaints while campaigning for the presidency, and in early May, fulfilled his pledges to evangelical Christian supporters by handing down an executive order on “religious freedom” that aimed to do two things: To make it easier for faith leaders to preach politics, and to allow employers to claim a religious exemption against providing contraceptive coverage for their employees.

Trump made the proclamation alongside representatives of Little Sisters of the Poor, an order of nuns who have been some of the most vocal opponents of Obamacare’s mandate that insurance include birth control coverage?—?taking the fight up all the way up to the Supreme Court.

“Your long ordeal will soon be over,” Trump told them when he announced the order.

Secretary of Health and Human Services Tom Price immediately issued a statement saying that he’d be happy to take have the opportunity to reshape the requirements on birth control coverage.

“We welcome today’s executive order directing the Department of Health and Human Services to reexamine the previous administration’s interpretation of the Affordable Care Act’s preventive services mandate, and commend President Trump for taking a strong stand for religious liberty,” he said in a press relief.

Price has long been a vocal critic of the birth control mandate on grounds of religious freedom, and has also been dismissive of its benefit to women.

“Bring me one woman who has been left behind. Bring me one. There’s not one,” Price said about women having trouble paying for birth control in an interview with ThinkProgress in 2012. “The fact of the matter is this is a trampling on religious freedom and religious liberty in this country.”

According to a recent survey by polling form PerryUndem, 33 percent of American women said they couldn’t afford to pay any more than a $10 copay for their birth control. Fourteen percent said that if they had to pay for birth control at all, they couldn’t afford it.

This article was originally published at ThinkProgress on May 30, 2017. Reprinted with permission.

About the Author: Laurel Raymond is a reporter for ThinkProgress. Previously, she worked for Sen. Patrick Leahy (D-VT) and served as a Fulbright scholar at Gaziantep University in southeast Turkey. She holds a B.A. in English and a B.S. in brain and cognitive sciences from the University of Rochester, and is originally from Richmond, Vermont.

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