Trump Administration Clamping Down on Regulatory Activity with Controversial “One-In, Two-Out” Order

The Trump Administration has made an effort to clamp down on regulatory activity by his executive branch, issuing an executive order directing agencies to repeal two regulations for each one rule they issue (“one-in, two-out”) and instructing that any new regulations finalized this year must have an incremental cost of zero.[1]  President Trump seeks to rein in the regulatory process in order to reduce the burden of rules on businesses.

However, the executive order has already been challenged. On February 8th in the U.S. District Court for the District of Columbia, the Natural Resources Defense Council, the Communications Workers of America, and Public Citizen filed a joint complaint, seeking to prohibit implementation of the order and the White House Office of Management and Budget’s (“OMB”) February 3rd guidance on the policy. In the complaint, the plaintiffs argue that these regulation-restricting provisions clash with the Occupational Safety and Health (“OSH”) Act’s mandate to craft standards based on threats to worker safety. Additionally, the complaint argues that the executive order and guidance are “arbitrary and capricious” due to their focus on rules’ costs and not on their benefits to Americans. The plaintiffs claim that the “one-in, two-out” requirement will lead to a noticeable increase in the number of rules withdrawn from OMB consideration, since compliance with a new regulation is more expensive than the year-to-year costs of complying with current policy.

[1] Exec. Order, Presidential Executive Order on Reducing Regulation and Controlling Regulatory Costs, available at https://www.whitehouse.gov/the-press-office/2017/01/30/presidential-executive-order-reducing-regulation-and-controlling.

Employers Earn an Important Victory in “Union Walk-around” Lawsuit

On Friday, February 3, a federal judge in Texas denied (in part) a motion to dismiss a lawsuit challenging an OSHA Standard Interpretation Letter (known as the “Fairfax Memo”) that contains policies for safety walk-arounds.  The Fairfax Memo permits employees to designate third parties as their representatives in OSHA worksite inspections.  NFIB argued that the memo authorizes union recruiters to enter workplaces against employer’s wishes, and is illegal because it violates the Administrative Procedures Act (“APA”) and exceeds OSHA’s statutory authority.

The OSH Act gives OSHA the right to inspect workplaces, and also gives an employee the right to have a representative present at a workplace inspection. 29 U.S.C. § 657(e).  Shortly after passage of the Act, OSHA promulgated through notice and comment a rule interpreting the Act’s employee representative provision.  29 C.F.R. § 1903.8(c); see 36 Fed. Reg. 17,851 (Sept. 4, 1971). 

While 29 C.F.R. § 1903.8(c) requires that the employee representative be an employee of the employer, it also permits a third party who is not an employee of the employer, “such as an industrial hygienist or a safety engineer,” to participate in the inspection if, in the judgment of the Compliance Safety and Health Officer, it is “reasonably necessary” to the conduct of an effective and thorough physical inspection of the workplace.

In February 2013, then-Deputy Assistant Labor Secretary Richard Fairfax issued the memo in response to an inquiry from a union official about whether a worker at a workplace without a collective bargaining agreement could authorize a person affiliated with a union or community organization to act as a representative.  The memo concluded that the worker could authorize a person affiliated with a union or a community organization to act as his representative based this on an interpretation of the “reasonably necessary” standard for permitting third parties at walkarounds.  According to the memo, a nonemployee representative is a reasonably necessary third party when he “will make a positive contribution” to an effective inspection.  Continue Reading

Standard for Workplace Violence in the Healthcare and Social Service Industry?

In response to calls from labor groups and unions to develop federal standard that addresses workplace violence in the healthcare and social service sectors, former OSHA chief David Michaels stated during a January 10 meeting that OSHA found that there is ample evidence showing workplace violence is a rampant issue, and that OSHA will work towards establishing a standard. OSHA’s then deputy assistant secretary, Jordan Barab, held an optimistic outlook for the chances of the rule’s development, even in the deregulatory environment of the Trump administration.

In their July 12 petition for a standard, labor groups and unions argued that the OSH Act’s General Duty Clause, an enforcement mechanism requiring companies to maintain safe workplaces, is ineffectual in preventing workplace violence. Bureau of Labor Statistics (“BLS”) data showing an increase in workplace violence during recent years reflects this conclusion, they argued.  The January 10 meeting served as the impetus for OSHA to pursue a standard, and OSHA is currently seeking public comment on a December 7 request for information (“RFI”) that closes on April 6.  Although OSHA officials are uncertain whether the agency can identify the factors that cause violent incidents, labor representatives disagree.

The Obama Administration’s grant of the nursing and labor groups’ petition is seen as a strategic decision on behalf of the Obama Administration to create a legal pathway to sue OSHA should the Trump Administration decline to pursue the standard. In a January 17 interview, Jordan Barab stated that the next step in establishing the workplace violence standard would be to analyze the potential impacts of the rule on small businesses through an advisory committee under the Regulatory Flexibility Act.  Additionally, although the Trump Administration could slow-roll the rule development process for this standard, labor interests have some hope that the ongoing RFI could provide information and momentum for states to pursue their own rules preventing workplace violence.

Labor interests are seeking an OSHA workplace violence standard that contains:

  • Requirements for employers to assess risk factors for workplace violence and to involve workers who treat patients directly.
  • Training and procedure requirements for post-incident care, including workers who provide healthcare in home settings.       Employers would also be required to develop plans that mitigate risks on job sites.
  • Requirements that are enforceable.

That is, if the deregulation-focused Trump Administration moves forward with developing the workplace violence standard.

Ready, Set, Post! Your OSHA Form 300As

Here’s your friendly reminder from your pals at Not Safe For Work: It’s time to post your OSHA Form 300A! The OSHA Form 300A log summarizes job-related injuries and illnesses that occurred during 2016, and most employers are required to post it in a common area where notices to employees are usually displayed. Employers must do so at some point between February 1 and April 30 each year.  Classes of employers that do not have to display the summary log include those with 10 or fewer employees and those in certain low-hazard industries, which are exempt from OSHA recordkeeping and posting requirements.  For more information, please visit OSHA’s Recordkeeping Rule webpage.

Delay Under the Priebus Memo

The Trump Administration has now taken leadership in the executive offices, and with this transfer of power comes the traditional memorandum halting the regulatory actions of the previous Administration. White House Chief of Staff Reince Priebus issued a memorandum directed to agency heads (“the Priebus Memo”), detailing a series of regulatory prohibitions and requirements for already-issued rules that include OSHA’s beryllium rule and EPA’s Risk Management Plan (“RMP”) safety regulation.  Additionally, there are several OSHA rules that have been finalized but that have compliance dates that have yet to occur; these rules could be delayed either by the Priebus Memo or by other Trump Administration actions.  The Priebus Memo specifies that a Trump official must approve regulations prior to an agency official’s submission of a notice or rule to the Federal Register for publication.  Also under the umbrella of this approval requirement are any sort of actions that could lead to a final rule or regulation, including notices of inquiry, advance notices of proposed rulemaking, and notices of proposed rulemaking.  The Priebus Memo has the effect of slowing or potentially even halting a number of the regulatory initiatives that the Obama Administration attempted to push through in its final weeks.

The Priebus Memo mandates that:

  • Any unpublished regulations already sent to the Federal Register should be withdrawn for Trump Administration review and approval.
  • Agencies are required to postpone by 60 days the effective date for published rules that have not yet taken effect.
  • To delay the effective date for regulations beyond the 60-day period, agencies should consider proposing the rule for notice and comment.
  • Agencies may notify the Director of the Office of Management and Budget (“OMB Director”) if they find that a particular regulation should be excluded from the Trump Administration approval requirement due to “critical health, safety, financial, or national security matters, or for some other reason.” The OMB Director will determine whether an exclusion is appropriate.

The End of Perp Walks?

For the past two weeks, we here at NSFW have been looking to the OSHA website to bring you the latest victims of the agency’s Perp Walks . . . to find that none have been published since January 19. Could the newly entered Trump Administration be the reason why no Perp Walks have been posted?  Is OSHA under an order barring external communication, similar to what Trump has put into place at the Environmental Protection Agency and other departments as the changeover in leadership occurs?  Will Perp Walks continue once Trump, who aims to decrease regulation and assist business, settles into his authority in the executive branch?  Only time will tell, and we’ll be sure to keep you informed.

Trump’s SCOTUS Nominee is a Chevron Skeptic

On January 31, President Trump introduced Judge Neil Gorsuch as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia.  Gorsuch, who currently sits on the U.S. Court of Appeals for the Tenth Circuit, has been widely-praised for his lucid, well-reasoned opinions on a wide range of federal law questions.  Like Scalia, his opinions reveal a textual orientation in matters of constitutional and statutory interpretation, a belief that criminal laws should be clear and interpreted in favor of defendants even at the expense of government prosecutions, and a skeptical stance toward administrative agencies.

 Unlike Scalia, however, Gorsuch has criticized the so-called Chevron doctrine – the rule that courts must defer to permissible agency interpretations of ambiguous statutory language – which Scalia generally defended.  Indeed, Gorsuch’s view of Chevron is more conservative than Scalia’s.  In the words of Eric Citron at ScotusBlog:

 [Gorsuch] believes even . . . broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error.

 Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground. Continue Reading

Chevron Deference and the Proposed “Separation of Powers Restoration Act of 2017”

During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive.  The Regulatory Accountability Act of 2017 is one remarkable example.  It was introduced as a free-standing bill in 2016, but the Senate did not act upon it, perhaps because then-President Obama would almost surely have vetoed it.  But now the House of Representatives has re-introduced this legislation (on January 3, 2017) as H.R. 5.  If enacted, the law would have a profound effect on the agendas of administrative agencies, such as the Environmental Protection Agency, the Department of Energy, and the Department of Labor. 

 Title II of Regulatory Accountability Act, styled the “Separation of Powers Restoration Act,” would overturn two landmark Supreme Court decisions—Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997)—by amending Section 706 of the Administrative Procedures Act.  The key provision states that any court reviewing an administrative action shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”  “De novo” review means that the reviewing court gives no deference to the legal opinions of either the parties or lower court judges and administrators.  In Chevron, the Supreme Court held that reviewing courts should defer to an agency’s interpretation of an ambiguous statute.  Auer, written by the late Justice Antonin Scalia, similarly held that for an agency’s “own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

 In recent years, several Supreme Court justices—including Justice Scalia—have questioned both the logic and constitutionality of Chevron and Auer.  These critics contend that judicial deference to agency interpretations of the statutes and regulations they administer violates separation of powers principles (hence the name of Title II).  Legislators who support the Separation of Powers Restoration Act have advanced related concerns: that Congress currently lacks an incentive to draft clear laws, and that the Executive Branch charged with resolving statutory ambiguities faces backlash for unpopular decisions, thus insulating Congress from political accountability.  They also argue that Chevron gives courts an incentive to shirk their role in striking down arbitrary and unlawful agency actions. Continue Reading

Fines Increase One Percent for Workplace Safety Violations

If a one-percent increase in maximum fines doesn’t dissuade employers from committing worker safety and health violations, then we don’t know what does. OSHA’s and MSHA’s higher penalties became effective January 13th, but it is worth noting that they can be applied to alleged violations that occurred prior to that date as long as the employer was cited for them after January 13th.  Congress authorized this increase in 2015 as part of the fiscal 2016 appropriation deal, which included a provision allowing several agencies to raise fines annually to keep up with inflation.  This same bill allowed OSHA in August 2016 to make a one-time catch-up adjustment, raising its maximum fines by 78%.

New maximum OSHA fines:

  • Repeat or willful violations: $126,749 (formerly $124,709)
  • Serious or other-than-serious violations: $12,675 (formerly $12,471)

New maximum Mine Safety and Health Administration (“MSHA”) fines:

  • Flagrant violations: $254,530 (formerly $250,433)
  • Regular Assessment: $69,417 (old $68,300)
  • Failure to provide timely notification: $69,417 (old $68,300)

OSHA’s “Perp Walks” for the Week of January 16th

OSHA’s “Perp Walks” for the Week of January 16th.

OSHA has long bemoaned that the Occupational Safety and Health Act (“OSH Act”) does not allow OSHA to issue penalties sufficiently high enough to deter noncompliance.  While reasonable minds can disagree about the sufficiency of the OSH Act’s penalty structure or whether most employers strive to provide safe and healthy workplaces out of fear of enforcement, few can question OSHA’s creative use of “alternative tools” to incentivize compliance.  Foremost among those tools is OSHA’s power of the press.

Every week, OSHA identifies by name several employers that have been cited for occupational safety and health violations.  Here’s the Perp Walks for the week of January 16th.

  • January 18 [Region 5 News Release] – 2017 – 01/18/2017 – OSHA cites Ohio railroad parts manufacturer after follow-up inspection finds workers remain exposed to machine, fall hazards SanCasT faces $235K in proposed penalties
  • January 18 [Region 1 News Release] – 2017 – 01/18/2017 – OSHA orders Amtrak to reinstate, pay $892K to employee discharged in violation of Federal Railroad Safety Act
  • January 17 [Region 3 News Brief] – 2017 – 01/17/2017 – OSHA fines Pennsylvania hospital $32K for exposing employees to workplace violence, other hazards
  • January 17 [Region 2 News Brief] – 2017 – 01/17/2017 – OSHA proposes nearly $89K penalty after finding concrete manufacturer again exposed workers to airborne silica
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