Monday morning musings for workplace watchers.
AGs Weigh in on OSHA Case|Missing DOL Publication|EEOC litigation down
Bruce Rolfsen: A federal lawsuit that seeks to cancel hundreds of OSHA safety regulations is getting the attention of state attorneys general, environmental groups, and labor advocates.
The lawsuit, now at the US Court of Appeals for the Sixth Circuit, argues for that for 50 years OSHA’s “permanent rules” have been unconstitutional.
A federal district judge dismissed the case Sept. 2. The plaintiff, heavy industry general contracting firm Allstates Refractory Contractors LLC of Waterville, Ohio, appealed, and has gained the backing of industry groups such as National Federation of Independent Business and a host of conservative legal advocacy organizations.
Groups supporting OSHA responded by filing their own legal briefs in late January.
“This case threatens the stability of the statutory regime under which OSHA operates, and in doing so jeopardizes amici States’ ability to ensure the safety of workers in their jurisdictions,” 19 attorneys general, all Democrats, said in a brief.
Without a federal OSHA, states would likely have to create and fund their own worker safety agencies, and employers could face different standards in each state, the AGs argued.
The AFL-CIO labor federation in its brief asserted that the US Supreme Court’s 2022 decision against OSHA’s Covid-19 test-or-vaccination standard otherwise backed OSHA’s rulemaking powers.
“The Supreme Court made plain, however, that OSHA could adopt standards addressing ‘day-to-day’ hazards, including fire and sanitation, because such requirements, unlike vaccination, may be ‘undone at the end of the workday,’” the federation said.
Environmental groups also have submitted a brief arguing that a wholesale overturning of OSHA rules could lead to restrictions on the Environmental Protection Agency.
The appeals court hasn’t scheduled oral arguments or indicated when a decision will be issued.
Rebecca Rainey: The US Labor Department says a glitch is the reason why it ceased sending an email list highlighting its work, a change that’s created concern among worker advocates who say the Daily Digest publication was helpful for tracking the agency’s work and putting employers on notice.
The digest email “wasn’t functioning,” Labor Department spokesman Egan Reich told PI. He said the agency is “working to get it back up,” adding that there are other ways to receive the DOL press releases, and that the agency is committed to in getting the information out to the public.
The agency stopped sending the Daily Digest email last May, but made no formal announcement at the time. The publication listed links to the agency’s news releases, summarizing its enforcement actions and other work.
While the Biden administration has increased the frequency of press releases highlighting its work compared to the Trump administration, worker advocates say they’re concerned the Biden DOL has abandoned a useful tool.
“It all about deterrence,” said Debbie Berkowitz, a former adviser at the Occupational Safety and Health Administration, and now a fellow at the Kalmanovitz Initiative for Labor and the Working Poor at Georgetown University.
Small DOL enforcement agencies like OSHA, for example, have limited budgets and aren’t able to reach every workplace, Berkowitz said. The press releases “explain to the public what OSHA found so other employers could read, as well as reporters, and know what the hazard was and get that information out,” she said. “It sort of amplifies, multiplies the agency’s impact.”
Reid Maki, director of Child Labor Issues and coordinator at the Child Labor Coalition, added that publicizing enforcement work was crucial, given the small number of Wage and Hour Division investigators compared to the number of workers they are required to protect.
“If you really want to have robust child labor laws, you need to publicize your enforcement efforts really well,” Maki said. “You can’t just issue a press release that reporters may or may not find. So this tool, The Daily Digest, would help get the word out.”
The missing digest may have been a welcome break, however, for businesses and management-side attorneys who have criticized Democratic administrations for using enforcement press releases to shame employers before they’ve had a chance to appeal or adjudicate violations filed against them by the DOL.
Employers Should Get Ready for More OSHA Enforcement Under Biden’s DOL
Limited OSHA Virus Inspections Spur Push to Regain ‘Trust’ (1)
J. Edward Moreno: A Seyfarth Shaw LLP report analyzing lawsuits brought by the US Equal Employment Opportunity Commission found that the civil rights agency—despite getting an influx of cash from Congress in recent years—hasn’t upped its litigation game, at least not yet.
The EEOC filed 95 lawsuits in fiscal year 2022, down from 114 in FY 2021, and the cases didn’t vary much from the previous years in terms of the statute or nature of the allegations. One potential reason for the lagging litigation could be that the agency’s regional attorneys have cases brewing that they’re waiting to present to the commission once it has secured a Democrat majority, according to Seyfarth attorney Andrew Scroggins.
“That’s probably the case, because otherwise we would’ve seen an uptick in the litigation the past year, it would all seem to line up, but we didn’t,” Scroggins told PI.
The commission currently has a Democratic chair, Charlotte Burrows, and a 2-2 partisan split. President Joe Biden’s nominee to fill the fifth seat on the commission, Democrat Kalpana Kotagal, failed to be confirmed last year and was renominated Jan. 4.
EEOC regional offices investigate charges, but to initiate most litigation, particularly resource-intensive systematic cases, the full commission has to approve. In 2022, 16 cases were voted down, each by a Republican commissioner.
Meanwhile, the EEOC’s budget has increased by over $40 million since 2019. Biden requested $464.7 million for this fiscal year, which is about $44 million more than the agency’s final FY 2022 budget.
“If you’re a regional attorney and you got what you think is a juicy case to pursue, why not just sit tight and wait until you have three Democratic appointees on the commission so you get the blessing to move forward with your case,” Scroggins said.
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