BI’s Article search uses Boolean search capabilities. If you are not familiar with these principles, here are some quick tips.
To search specifically for more than one word, put the search term in quotation marks. For example, “workers compensation”. This will limit your search to that combination of words.
To search for a combination of terms, use quotations and the & symbol. For example, “hurricane” & “loss”.
The U.S. Occupational Safety and Health Administration’s policy of publicly shaming employers to improve workplace safety via “nasty” press releases persists despite the change in administrations, said an attorney representing employers who hopes to challenge the practice in court one day.
The rate of releasing these public statements about enforcement actions taken against employers is significantly lower under the Trump administration than the Obama administration, but the tone in these press releases has not changed, attorneys at Conn Maciel Carey L.L.P. said during a webinar Tuesday.
The agency issued 2,780 press releases — at a rate of about 463 per year — from 2011 to 2016 during the Obama administration, said Eric Conn, founding partner of the Washington-based law firm. After a pause in press release issuance from Jan. 20, 2017 — the date of President Donald Trump’s inauguration — to April 28, 2017, when Alexander Acosta was sworn in as Secretary of Labor, OSHA once again began issuing press releases and has issued 149 since then.
Under the Bush administration, which issued 148 press releases per year during the 2003-2008 time period, and previous administrations, the tone of the press releases was “very black and white, very neutral,” he said.
The Trump administration reverted back to an issuance frequency more in line with the Bush administration after Mr. Acosta took over the department, but the press releases have surprisingly “retained the ugly tone of the Obama-era press releases,” Mr. Conn said. “Still, 100% of the press releases issued during the Trump-Acosta era at OSHA have included an inflammatory and embarrassing quotation from a senior OSHA or DOL official.”
The practice of issuing these press releases is problematic for several reasons, including that they are issued on the same day of or immediately following the issuance of citations when they are based on allegations and the employer still has a legal window to challenge the citations, Mr. Conn said, noting that citations are often downgraded — or even withdrawn completely — and proposed penalties reduced during informal conferences between OSHA officials and employers.
“They still have press releases on (the OSHA website) from more than a decade ago that say nasty things about employers that have later proved to be wrong, and there’s no effort by OSHA to change that or correct that or apologize for that,” he said.
Other stakeholders such as the American Society of Safety Professionals have also objected to OSHA’s heavy reliance on “a name-and-shame model of enforcement” via nearly 40 press releases per month publicizing fines and enforcement actions taken against companies. “Many times, these press releases have been based merely on allegations of violations and are published prior to companies being afforded a hearing,” the organization said in a report published in 2017.
Mr. Conn said he is eager to challenge the policy in court because he believes the way it’s being implemented and executed by the Obama and Trump administrations violates both constitutional due process and the Administrative Procedure Act. The Occupational Safety and Health Act allows and may require the agency to communicate with the regulated community about enforcement efforts and actions, he noted.
“You can do all that education without shaming the employer,” Mr. Conn said. “It’s the shaming component of this that takes it in a different direction. You’re no longer educating. Your purpose for doing this is to layer on an additional level of punishment, and that is why I think we get into the area where this is unlawful.”
“They are issuing these nasty press releases based purely on allegations before you’ve had your due process, and there’s no question that they are intended to be punitive,” he added.
A “great case with a good fact pattern” would be one when OSHA issues the press release and is later proven completely wrong, but the employer suffers actual harm, which is “pretty easy to demonstrate,” Mr. Conn said.
But employers have been reluctant to sue over the policy to date, even when they have suffered damages, because the federal government would likely have immunity from paying damages, Mr. Conn said.
“From my view, it would be next to impossible to recover money damages from the federal government, from OSHA, from the Department of Labor in this lawsuit,” he said. “If we were to succeed, the success would be a declaratory judgment that the policy is unlawful or unconstitutional or that particular press release was unlawful or unconstitutional and therefore maybe what you get is injunctive relief to take your press release down or injunctive relief to prohibit … press releases that have this particular shaming element to them. I think there’s an opportunity to fix what I think is a broken and unlawful policy, but it’s probably going to be pretty expensive without the opportunity to recover any monetary damages. And oh by the way, you’re going to be poking the bear.”
An OSHA spokesperson could not be immediately reached for comment.
The U.S. Occupational Safety and Health Administration is sounding the alarm about a recent spike in workplace fatalities in Kansas, Missouri and Nebraska.