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Occupational Safety

Labor Department Drops Shroud of Secrecy Over Job Safety Actions

Oct. 23, 2020, 10:26 PM

The Department of Labor is prohibiting its worker protection agencies from issuing press releases announcing when they issue citations and sanction employers.

The DOL policy, set forth in an intra-departmental memo dated Sept. 24, targets the Occupational Safety and Health Administration, Mine Safety and Health Administration, and the Wage and Hour Division.

“As a matter of Department policy, in general, enforcement agencies should not issue news releases before achieving a successful outcome,” DOL Deputy Secretary Patrick Pizzella said in the directive to six division heads, with copies sent to Secretary of Labor Eugene Scalia, as well as the department’s top litigator and its public affairs chief.

Also included on the distribution list, the leaders of the Employee Benefit Security Administration, Office of Federal Contract Compliance Programs and the Office of Labor Management Standards.

The memorandum was first reported upon earlier Friday by the New York Times.

The directive follows a DOL decision to stop releasing OSHA citations—those documents offering specific details of workplace infractions—upon request unless a Freedom of Information Act request was made.

The move also comes during a resurgence of the coronavirus pandemic in the U.S., and amid criticism that the scale of OSHA’s fines are insufficient to compel many companies to be more proactive about worker protection.

Labor Department spokeswoman Megan Sweeney said the memo is part of an effort to take a “more thoughtful and deliberative approach” to inform the public about bad actors.

“As OSHA investigations began to conclude, it became apparent that the number of citations would be rising quickly,” Sweeney said in a statement emailed to Bloomberg Law. “The Department decided to streamline announcements to make it easier for the public to see all of the establishments that were issued citations related to COVID. Beginning in October, OSHA has issued weekly press releases listing all of the latest establishment to receive OSHA violations.”

OSHA cases with high proposed fines or significant allegations of employers endangering workers can take years to resolve through legal appeals. Citing administrative difficulties tied to the pandemic, the Occupational Safety and Health Review Commission is not currently permitting on-site examination of those appellate records. Previously, the notices were viewable in person, on paper, after a reviewing attorney approved the documents.

‘Prove Misleading’

Pizzella justified the policy saying that while press releases are “effective ways of communicating with the public” the releases can “prove misleading” if the allegations are later overturned by a court or withdrawn by the agency. Under the new DOL policy, if an agency want to issue a press release on a enforcement action, the agency head must first consult with the DOL Office of the Solicitor, Pizzella wrote. The final decision is at the discretion of the department, not the agency.

The deputy labor secretary has served the federal government in different capacities across multiple administrations including those of Republican presidents Ronald Reagan and George W. Bush and that of Democrat Barack Obama.

Since the policy took effect, OSHA has issued four press releases containing lists of employers cited for Covid-19 related hazards, but hasn’t released actual citations that provide additional information about the alleged violation. Early Friday, the agency announced it had cited 112 establishments an aggregate $1.6 million, or an average of $14,317 a piece, for workplace violations related to the coronavirus pandemic.

While the release included a link to an OSHA webpage detailing which regulatory provisions each business is alleged to have breached, it included no specific details on the individual violations.

OSHA does continue to allow public access to its online enforcement database that lists every inspection and violation issued by the agency.

Industry-side attorneys have long complained about OSHA press releases as being unfair to clients who contested the allegations. Both the Obama and George Bush administration frequently issued releases. During the first six months of the Trump administration OSHA issued few enforcement press releases, but the numbers later increased.

OSHA released its last press releases about issuing citations against a single employer on Sept. 11. Prior to that, OSHA had issued about 95 press releases in 2020 and more than 200 in 2019.

To contact the reporters on this story: Bruce Rolfsen in Washington at BRolfsen@bloomberglaw.com; Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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