Federal Workplace Police Cast Aside Rules that Inhibit Capitalist Punishment

oshaNLRBAn excellent Economist article recently critiqued the ever-increasing criminalization of the American business community by federal regulators:

The formula is simple: find a large company that may (or may not) have done something wrong; threaten its managers with commercial ruin, preferably with criminal charges; force them to use their shareholders’ money to pay an enormous fine to drop the charges in a secret settlement (so nobody can check the details). Then repeat with another large company.

None of this is news to us here at WLF, where we have long been at the forefront of those who are concerned about the federal erosion of business civil liberties.

But what if, despite the heavy-handed leverage, government regulators still don’t get the results they are looking for? That’s easy—change the rules. That’s precisely what OSHA Administrator David Michael recently revealed he intends to do with the standard of proof required in whistleblower merits determinations.

Despite boasting to a recent meeting of the Whistleblower Protection Advisory Committee that, from 2009 to 2014, OSHA more than doubled the number of complaints it found to have merit, recovering over $119,000,000 in damages for whistleblower complainants in the process, Michael announced that OSHA will soon release a policy memo that will change the burden of proof in whistleblower investigations.

No longer will whistleblowers be required to prove by a preponderance of the evidence that it is “more likely than not” that a violation occurred. Rather, under the new regime, whistleblowers will need only establish “reasonable cause” that a violation occurred. That lower bar will undoubtedly result in many, many more cases being found to have merit by OSHA, which is what OSHA wants.

OSHA is not the only federal workplace cop pursuing rule changes on the fly to advance its ideological agenda. As explained in a new WLF Legal Backgrounder by Littler Mendelsohn LLP attorneys Michael Lotito and Missy Parry, the National Labor Relations Board (NLRB) is poised to radically alter long-standing definitions of who counts as an employer to favor unions, plaintiffs’ lawyers, and, of course, federal regulators.

Under the view of agencies like OSHA and NLRB, due process in the face of a government-decreed worthy goal is no virtue.  And drumhead justice in pursuit of that same goal is no vice.

Also published by Forbes.com at WLF’s contributor page

Finger on the Pulse: From Our Blogroll and Beyond

Finger on the Pulse: From Our Blogroll and Beyond

  • This doesn’t happen nearly often enough: judge sanctions securities fraud plaintiffs’ lawyer for “spurious” allegations (law.com)
  •  The “copyleft” is apparently unhappy with WLF’s brief in Viacom v. YouTube (Techdirt
  • Is Foreign Corrupt Practices Act enforcement more successful at enriching those who prosecute and defend such actions than it is at reducing bribery? (Forbes
  • Federal regulations are back in fashion – who knew? (NYT
  • Landmark ruling issued on induced copyright infringement (Campaigns & Copyrights
  • TwIqbal? – drug/devices cases where Twombly and Iqbal rulings applied to dismiss suits (Drug & Device Law Blog
  • Only in America: Doctor ignores warning label, injects self with Botox, wins $15 million in “failure to warn” suit (The Oklahoman
  • OSHA’s enforcement initiatives, including the general duty of an ergonomically sound workplace (Buchanan Ingersoll)