Outten & Golden: Empowering Employees in the Workplace

Posts Tagged ‘regulation’

One Last Time: OSHA Extends Recordkeeping Reporting Deadline

Friday, November 24th, 2017

After multiple delays, OSHA has finally announced that employers who are required to keep OSHA injury and illness records must send summary information in to the agency by December 15, fifteen days after the deadline announced last June, when the agency proposed to delay the reporting deadline from July 1 to December 1.

The rollout has been plagued by numerous delays. First OSHA delayed until August 1 in putting up the website which was supposed to be up by the end of February.  Then there came false accusations of a data breach, and finally a delay in issuing the final change in the required submission deadline.

When the regulation was issued last year, OSHA stated that the data would be published on the web. “Public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses,” OSHA announced when the regulation was issued in May 2016.  The Trump administration has not disclosed its intentions about publicizing the data, although there is legal precedent for requiring the agency to publish the data on OSHA’s website.

Other parts of the “electronic” recordkeeping regulation are being challenged in court and are under reconsideration by OSHA. The agency also announced today that OSHA is currently reviewing the other provisions of its final rule to Improve Tracking of Workplace Injuries and Illnesses, and intends to publish a notice of proposed rulemaking to reconsider, revise, or remove portions of that rule in 2018.”

Some in the business community don’t like requirements that more detailed information on injuries and illnesses be sent to OSHA starting next year, or that OSHA has prohibited employers from retaliating against workers for reporting injuries.  At last week’s Congressional hearing, Secretary of Labor Acosta falsely stated that the regulation “was asking for some information that was very detailed and that identifies individuals.”

OSHA also noted that seven state plans, California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming, have not yet adopted the regulations. States are supposed to adopt all new OSHA standards and regulations within 6 months of federal OSHA’s issuance.

This blog was originally published at Confined Space on November 22, 2017. 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).

New CFPB Rule – a Poster Child for Regulation

Tuesday, July 25th, 2017

The new CFPB rule is critically important in its own right, but it is also interesting to view the battle over this rule as a microcosm of the fight we so often see between free market devotees and fans of regulation. Bankers, credit card issuers, payday lenders and the Chamber of Commerce have urged for many years that consumers should be free to “choose” to resolve disputes through individual arbitration – supposedly a quicker, cheaper better mode of dispute resolution as compared to litigation and class actions.  In contrast, those who oppose forced arbitration assert that such arbitration is unfair for consumers and bad for society as a whole.  Ultimately this battle between free marketeers and pro-regulation forces turns on principles of economics, psychology, and political philosophy, as I have detailed elsewhere.

While those who oppose regulation urge that financial consumers should be free to choose to resolve future disputes through individual arbitration rather than through class actions, empirical studies and common sense tell us that consumers do not knowingly choose a contract based on the arbitration clause.  We do not focus on such clauses, we do not usually understand them and our human psychology leads us to be overly optimistic that no disputes will arise in any event.  Nor would it make sense for all consumers to spend the time and energy to try to figure out such clauses.

We also cannot count on the miracle of Adam Smith’s invisible hand to ensure that financial service companies act in the best interest of consumers.  The lack of perfect competition, customers’ lack of complete information, the impact of clauses on third parties and the unequal initial distribution of resources all ensure that the market will not miraculously do what is best for customers.

Philosophically, how can one argue with a straight face that clauses imposed unknowingly in small print contracts are supported by principles of freedom or autonomy?  As Professor Hiro Aragaki has explained, perhaps autonomy supports freedom from contracts of adhesion more than freedom of contracts of adhesion.

So, we need regulation. What should the regulation look like? Is forced arbitration the quicker, cheaper, better form of dispute resolution that its advocates suggest? Do class actions help consumers or do they only enrich the lawyers who bring them? The CFPB used extensive empirical investigation to answer these questions.  It found that (1) financial consumers are typically unaware of the arbitration clauses to which they are subjected; (2) only miniscule numbers of financial consumers actually bring claims in arbitration; and (3) financial class actions, e.g. over improper check bouncing charges, have brought billions of dollars of benefits to millions of consumers and also imposed non-monetary sanctions, all helping to deter future illegal conduct.  Thus, CFPB concluded that, at minimum, it should prevent financial companies from using arbitration to insulate themselves from class actions.  It issued the rule to achieve that end.  The new CFPB rule also requires companies to submit additional information to CFPB regarding their arbitration programs so that CFPB can conduct additional analyses and decide whether more/different regulation may be needed.

Hurrah for the CFPB!   Its new rule is supported by psychology, economics, and political philosophy.  Nonetheless, the new rule is under serious threat.  Congress may consider proposals to gut the rule as early as next week, and the Acting Comptroller of the Currency is threatening to void it on the ground that allowing financial consumers to sue in class actions would threaten the soundness of the banking system.

The CFPB says otherwise, and expresses surprise that such a claim is being made at the tail end of a very public three year study.

Let’s now all take what steps we can to preserve this rule against the attacks that are coming in Congress, from elsewhere in the bureaucracy, and in the courts.

The Consumer Financial Protection Bureau (CFPB) just issued a new rule prohibiting financial service providers from using forced arbitration to prevent their customers from suing the company in class actions.  While many of us believe this rule is a “great win for consumers,” others are trying to gut it in Congressin the courts, or through administrative action by the Comptroller of the Currency.

Inferior workplace health and safety regulations are killing us (literally!)

Friday, May 20th, 2011

Image: Kate ThomasOn Monday, May 16, SEIU member Cathy Stoddart, RN, BSN spoke at a briefing with U.S. Senate staff about the importance of strong health and safety workplace regulations. The briefing familiarized HELP committee staff with the benefits of regulations for American consumers and workers, as well as the costs of government’s failure to ensure a safe workplace.

In her dual role serving an Executive Board member of her SEIU Healthcare PA and as a nurse at Pittsburgh’s Allegheny General Hospital, Cathy is no stranger to making her voice heard on workers’ rights and workplace safety issues. She spoke in detail on Monday about how we might easily and affordably strengthen health and safety regulations to prevent injuries and illnesses, save lives, and improve patient care. “Regulations don’t kill jobs,” Cathy pointed out, “but a lack of workplace health and safety regulations does kill workers.”

The reality is much more needs to be done to regulate hazards that healthcare workers face. The statistics speak for themselves…

Healthcare workers have higher injury and illness rates than workers in mining, manufacturing or construction; yet very few health and safety standards for these caregiving workers exist.

For example, there are currently no standards to protect healthcare workers from the leading hazard they face: an epidemic of neck, back and shoulder injuries from manual patient handling. A Safe Patient Handling regulation that required the provision of lifting devices to protect healthcare workers from career-ending back, neck and shoulder injuries would go a long way towards solving this pervasive problem. With the recent anti- worker rhetoric combined with staffing cutbacks, we are also seeing an alarming increase in workplace violence. We need a national OSHA workplace violence prevention standard to protect healthcare workers from getting assaulted by patients, residents and clients.

A bill that’s currently making the rounds in the House Judiciary and Rules Committees presents a huge potential barrier to removing the threats healthcare workers still face on the job. H.R. 10 (the REINS Act) would require both Houses of Congress to approve virtually all new major regulations before they go into effect, which means that any new regulation would get caught up in Congressional gridlock.

What would passage of the REINS Act specifically mean for working people? Nothing good, that’s for sure. HR 10, if enacted, would essentially make it impossible to ever issue another regulation to protect workers from on-the-job hazards. Consider that in the year 2010 alone, federal agencies issued more than 90 major new rules that could likely have been subject to the REINS Act’s requirements. There are simply not enough hours in a day to allow Congress to allot the time necessary to consider and approve even the most important rules (much less 90 of them).

The OSHA standard setting process currently in place is essentially broken. Standards that previously took a year to promulgate now take decades, if they come out at all. We need to expedite rulemaking, not slow it down, like the REIN Act aims to do.

This article originally appeared in SEIU Blog on May 19, 2011. Reprinted with permission.

About the Author: Kate Thomas is a blogger, web producer and new media coordinator at the Service Employees International Union (SEIU), a labor union with 2.1 million members in the healthcare, public and property service sectors. Kate’s passions include the progressive movement, the many wonders of the Internet and her job working for an organization that is helping to improve the lives of workers and fight for meaningful health care and labor law reform. Prior to working at SEIU, Katie worked for the American Medical Student Association (AMSA) as a communications/public relations coordinator and editor of AMSA’s newsletter appearing in The New Physician magazine.

Business Lobbyists Yearn For The Days When Elaine Chao Ran The Labor Department

Tuesday, January 5th, 2010

Image: Pat GarofaloWith the calendar turning to 2010, the Associated Press took a look back at the first year of Labor Secretary Hilda Solis’ tenure, pointing out that “her aggressive moves to boost enforcement and crack down on businesses that violate workplace safety rules have sent employers scrambling to make sure they are following the rules.”

In many ways, Solis has completely reversed the course of the Labor Department that was set by her predecessor, Elaine Chao. And Solis’ crackdown has business lobbyists yearning for the days when Chao ran the show:

“Our members are concerned that the department is shifting its focus from compliance assistance back to more of the ‘gotcha’ or aggressive enforcement first approach,” said Karen Harned, executive director of the National Federation of Independent Business’ small business legal center…Chao has claimed that success was the result of cooperating with businesses to help them understand the myriad regulations. Keith Smith, a spokesman for the National Association of Manufacturers, said his members “want to build upon [Chao’s] progress and recognize what’s working.”

Of course, what worked for big business didn’t work at all for workers, as Chao’s Labor Department spent eight years “walking away from its regulatory function across a range of issues, including wage and hour law and workplace safety.”

Consider some of Chao’s legacy. The Government Accountability Office found that her Department “did an inadequate job of investigating complaints by low-wage workers who alleged that their employers were stiffing them for overtime, or failing to pay the minimum wage.” In one survey, 68 percent of low-income workers reported a pay violation in the previous week alone.

The Department’s own inspector general blamed “a lack of management emphasis on worker safety” for unsafe conditions at mines leading to a jump in worker deaths, while fines for workplace safety violations fell so low that employers began “factoring them in as part of their cost of doing business rather than complying with labor laws.” In all, “workers lose $19 billion in wages and benefits through illegal practices, nearly 6,000 American workers die on the job, and at least 50,000 workers die due to occupational disease” each year.

Solis, meanwhile, “slapped the largest fine in [Department] history on oil giant BP PLC for failing to fix safety problems after a 2005 explosion at its Texas City refinery.” She is hiring 250 additional wage-theft inspectors, and “started a new program that scrutinizes business records to make sure worker injury and illness reports are accurate.”

Labor Department staffers were so disgruntled under Chao that they threw a “good-riddance party” to cheer her departure. But for big business, Chao’s tenure meant acting with impunity and facing puny fines on the rare occasions that that were caught, and they’d like to go back.

*This post originally appeared in The Wonk Room on January 4, 2009. Reprinted with permission from the author.

About the Author: Pat Garofalo is the Economics Researcher/Blogger for WonkRoom.org at the Center for American Progress Action Fund. His writing has also appeared in The Nation, The Guardian, the Washington Examiner, and at New Deal 2.0.

What Do You Believe About Work That Is Wrong?

Monday, October 12th, 2009

After fifteen years of writing Workplace911 and its predecessor Working Wounded I’ve concluded that there are a lot of myths about work. I thought it would be fun to tackle some of the bigger ones in this week’s blog. Check out my list below and send me some of your favorites.

It’s impossible to be overpaid when someone else signs the paycheck. Let me offer a short translation of this rule—as long as someone is willing to pay you a ridiculous amount of money to work for them, then you aren’t overpaid because they have established a market for your services. I disagree. Corporate salaries are absurd. Cost cutting, layoffs and a myriad of other organizational sacrifices should float more than just the boats of the CEO and a few top executives. I’m no Marxist, CEOs do deserve a big paycheck when they are successful. But this escalator only seems able to go up.

Greed is good. The biggest problem here is that when Oliver Stone came up with this mantra for his Gordon Gekko character in the movie Wall Street it was meant as parody. Yet I hear some variation of it whenever I talk to traders, salespeople, etc. Henry Ford, hardly a commie himself, once said that only a fool holds out for the last dollar. I think wretched excess is a terrible way to run a company.

The bigger the jerk, the better the boss. Probably my favorite quote on management came from President (and General) Dwight Eisenhower. He once said, “Hitting people over the head isn’t leadership, it’s assault.” Sure jerks do get your attention and possibly results over the short term. But most employees will flee at the first chance they get. There are just too many sane bosses out there to continue to slave away for a jerk.

You’ve got to be first to market. Microsoft seems to me to be the only company that consistently puts second-rate products on the market and lives to tell the tale. The rest of us have to pick our spots and often the first to market position can’t justify launching a crappy product. So it often pays to wait.

Innovation is the middle name of American corporations. Despite rising productivity, I believe that corporations in the U.S. are running on fumes. Don’t believe me? Listen to most people talk about the management of their companies. It’s not a pretty sight. I see far more innovation right now coming from abroad and from the not-for-profit sector and I think it’s time that corporations started walking their talk.

Corporations are drowning in regulation. Tyco, Enron, WorldCom, etc. left in their wake Sarbanes Oxley and a host of other regulations. Undoubtedly Lehman, Goldman Sacks, etc. will leave their mark too. There is a lot of talk now about how corporations are being held back by senseless regulations. I hate filling out government forms as much as the next guy, but these laws came into place because of abuse by corporations. And in order to maintain the trust of the average investor these regulations need to remain in effect, no matter how much whining you hear from big business.

The bottom line isn’t just the bottom line. If I’ve learned one thing as an observer of business and the founder of four corporations, it’s that there are many bottom lines for a business. In addition to economic there are also social and environmental considerations. The financials really only are a part of the picture. The sooner that corporations take a broader view of the bottom line, the sooner they’ll begin to fully reach their potential.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. His web site, workplace911.com, contains a comprehensive archive of strategies for surviving today’s workplace. He is a fan of Workplace Fairness and can be reached via bob@workplace911.com.

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