Update: President Signs Resolution to Overturn OSHA Recordkeeping Rule Criticized in WLF Paper

oshaOn April 3, 2017, President Trump signed into law House Joint Resolution 83, which nullifies an Occupational Safety and Health Administration recordkeeping rule. The US House of Representatives and the US Senate had both passed the resolution to nullify the rule under the Congressional Review Act.

We noted the House’s passage of the resolution last month in US House of Representatives Disapproves OSHA Rule Recently Analyzed in WLF Paper. A February 24, 2017 Washington Legal Foundation Legal Opinion Letter, OSHA’s Midnight Attempt to Overrule Federal Court’s Decision Is Ripe for Rescission, explained how the “clarification” rule illegally expanded employers’ obligation to make and maintain records beyond the Occupational Safety and Health Act six-month statute of limitations.

US House of Representatives Disapproves OSHA Rule Recently Analyzed in WLF Paper

oshaThe US House of Representatives passed a resolution on March 1, 2017 under the Congressional Review Act (CRA) disapproving an Occupational Safety and Health Administration (OSHA) rule, “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.”

A February 24, 2017 Washington Legal Foundation Legal Opinion Letter, OSHA’s Midnight Attempt to Overrule Federal Court’s Decision Is Ripe for Rescission, explained how the late-December 2016 rule essentially overturned a 2012 federal appeals court decision. That decision held that an OSHA recordkeeping rule’s continuing obligation to make or update records conflicted directly with the Occupational Safety and Health Act’s six-month statute of limitations. The WLF paper’s author, Eric J. Conn, Co-Founder and Chair of the OSHA Practice at Conn Maciel Carey PLLC, wrote of the rule acted on by the House:

This is an untenable policy for the nation’s employers, which are entitled to a short, fixed period of repose in order to fairly defend OSHA citations.  The new rule also undermines the OSH Act’s intent to encourage prompt resolution of workplace-safety hazards.  Following OSHA’s logic, were OSHA to extend the retention period in § 1904.33(a) from five to ten to 30 years, the statute of limitations for recordkeeping citations would be extended with it, further subverting Congress’ intent.

Action of the OSHA rule now moves to the US Senate, which would consider a similar CRA resolution.

FEDERAL REGULATORY READING LIST: Resources for New Employment and Workplace Agency Leaders

*Note: This is the first in a planned series of  posts compiling Washington Legal Foundation papers, briefs, regulatory comments, and blog commentaries relevant to critical legal and constitutional issues facing new senior leaders at specific federal regulatory agencies.

For the past eight years, employers have faced a dizzying array of new employment and workplace-safety regulations, guidance documents, and enforcement policies from the Department of Labor (DOL), the Occupational Safety and Health Administration (OSHA), the Equal Employment Opportunity Commission (EEOC), and the National Labor Relations Board (NLRB). Some of those new rules and directives departed dramatically from decades-old agency policies and practices.

Through its public-interest litigating, publishing, and communications capabilities, WLF influenced debates over those agencies’ policies and actions with timely papers and blog commentaries, and weighed in directly through regulatory comments and amicus briefs.  Those activities have resulted in an impressive body of reference materials that are instructive for new leadership in those agencies.  We provide a summary of and links to those documents below to simplify access to relevant work product from WLF in each of those areas. Continue reading

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)