Making Workplaces Safer
Congressman Charlie Norwood (R-GA), Chairman of the House Subcommittee on Workforce Protections of the Education and Workforce Committee has again introduced four bills aimed at improving workplace safety, enhancing business competitiveness and foster more job creation to strengthen the economy. The measures, which will be marked up by the Committee on April 13 deserve the support of MCAA members. These reforms will improve worker safety by making it easier for employers to work voluntarily and proactively with OSHA to ensure safe and secure workplaces.
The first of these four bills, the Occupational Safety and Health Small Business Day in Court Act (H.R. 739), gives the Occupational Safety and Health Review Commission (OSHRC) additional flexibility to make exceptions to the arbitrary 15-day deadline for employers to file responses to OSHA citations when a small business misses the deadline by mistake or for good reason. Under current legal interpretation, employers who fail to meet the 15-day deadline lose their right to a day in court, regardless of whether there were intervening circumstances that inadvertently caused an employer to miss the deadline.
H.R. 740, the Occupational Safety and Health Review Commission Efficiency Act, increases the membership of the OSHRC from three to five members to ensure cases are reviewed in a timely fashion. Because a quorum of two (of the three) commissioners is needed for decision making, OSHRC has in the past been unable to act. The appointment process is sometimes controversial, leading to vacancies, and oftentimes commissioners must recuse themselves from consideration of cases. Increasing the membership of the commission from three to five members will ensure that cases are reviewed in a more timely fashion.
The Georgia Congressman has also introduced a bill, H.R. 741, the Occupational Safety and Health Independent Review of OSHA Citations Act to restore independent review of OSHA citations by clarifying that OSHRC is an independent judicial entity given deference by courts that review OSHA issues. Congress enacted the OSHA law only after being assured that judicial review would be conducted by "an autonomous, independent commission, which, without regard to the Secretary, can find for or against him on the basis of individual complaints." The bill restores the original system of checks and balances intended by Congress providing an independent review of OSHA citations.
The fourth and, in my view, perhaps the most important of the OSHA reform bills is H.R. 742, the Occupational Safety and Health Small Employer Access to Justice Act. This bill levels the playing field for small businesses and encourages OSHA to better assess the merits of a case before it brings unnecessary enforcement actions against small businesses. Under current law, the Equal Access to Justice Act (EAJA) allows small business owners to recover attorneys' fees if the owner successful challenges a citation. However, if OSHA can establish that its enforcement action was "substantially justified" or the result of "special circumstances," small businesses can be denied reimbursement of attorneys' fees even if OSHA loses the case in court. Historically, the law's "substantially justified" and "special circumstances" standards have made it easy for OSHA to prevent recovery under this broad standard, so attempts by small business owners to recover costs simply exacerbate the financial harm of OSHA's dubious enforcement actions.
All of these bills were passed by the House during the last Congress only to die in the Senate. I encourage you to let your representatives know how important these bills are and ask that they vote for them. It should be a priority for our industry to enact legislation which improves health and safety working conditions for our workers.
About the Author
Marian J. Marshall was the Director of Government Affairs for the Mason Contractors Association of America.