Bad Facts Make Bad Laws . . . .

Former Clinton official Webb Hubbell summed it up well…

There is an old adage in politics and the law that “Bad Facts, Lead to Bad Law.” In law, a horrible fact situation full of sympathy for one side can lead to a Judge or a jury making a poor decision or bad precedent.

In politics a bad or terrible tragedy may lead to sympathetic legislators making a law that seems to redress one inequity, but it has terrible consequences for society.

When an accident occurs, such as the recent Texas fertilizer plant explosion, there is a rush to pass new laws or to use an accident to justify resuscitating unsuccessful past legislation.  Unfortunately, such laws may not contribute to better workplace safety.  Instead, they may include interest groups’ “wish lists,” which may have little to do with the incident which triggered their proposal.  Ideology should not trump objective analysis.  The question must always be “will this law improve workplace safety?”


The day after the Texas explosion Congressman George Miller introduced legislation (law text) to increase Federal-OSHA power over the 21 State OSHA Plans, along with provisions drawn from the Protecting of American Workers Act (PAWA) which has not progressed in four years (and whose weaknesses have been discussed).   The explosion occurred in Texas, which is a Federal-OSHA state.  So why does an explosion in Texas demonstrate a need for more Federal oversight of OSHA State Plans?  Well, . . . it doesn’t.  But “bad facts” present opportunities to “ make bad laws.”


The current Administration prefers a centralized management approach, and has reduced the authority of OSHA Regional and Area Office Leadership; many of whom are highly seasoned professionals.  One could excuse those civil servants if they feel as if D.C. seemingly distrusts its own people.


D.C. leadership appears to distrust State OSHA Plans even more than its own system, and acts on the assumption that D.C. always knows best.  In the last few years, Federal-OSHA has increasingly tried to induce State OSHA Plans to adopt new Federal “approaches.”  The problem is that many of the State-OSHA Plans believe that their approach may be more effective in their State than the one-size-fits-all punitive approach sometimes promoted by D.C.


Congressman Miller stated that he introduced the legislation in response to the recent GAO Report, “OSHA Can Better Respond To State-Run Programs Facing Challenges.” This is the latest report criticizing OSHA’s State Plans, and focuses on underfunding and staffing, especially for OSHA Plans in Nevada, Arizona, California, Michigan, New Mexico, Kentucky, Tennessee, Utah and Alaska.


The Report accurately notes that the identified State Plans are increasingly struggling with adequate staffing and funding.  However, the Administration has been critical of the State Plans since coming into office, both before and after funding set-backs.


Given how strapped Federal-OSHA is, one does not see how Federal-OSHA would provide the help most desperately needed by these State OSHA Plans . . . more money.


A greater motive may be a dislike of the State Plans doing things their own way.  A reasonable question is whether greater Federal-OSHA intervention would improve the State OSHA Plans. 


Let’s look at Federal-OSHA.  Everyone should agree that Federal-OSHA needs a substantial budget increase so as to hire and train more inspectors without having to eliminate vital consultation programs.  However, the political reality is that OSHA will not receive the funds it reasonably requires.  Thus, OSHA has all but eliminated the consultation programs, which many experts within and outside of OSHA believe accomplished a great deal.  Also, D.C. shifted more resources to enforcement.  Despite a stagnant budget, OSHA continues to shift money to its whistle blowing focus.  While we do not disagree with the need to protect whistleblowers, most management labor attorneys will tell you that they rarely encounter legitimate retaliation claims.  Nevertheless, many of the current Administration’s supporters strongly believe that encouraging whistle blowing must be one of OSHA’s primary focuses.  But it seems difficult to defend the transfer money when OSHA cannot adequately fund its core safety responsibilities.


What Will Fed-OSHA Add?


There are certainly problems with some of the State OSHA Plans, but few of these problems could not be corrected by an infusion of cash. (OSHA State Plan Analysis).  Can Fed-OSHA even assist in more training when it is cutting training and development for CSHO’s?  Can Fed-OSHA provide technical assistance when its own Salt Lake lab is facing challenges? 


A big concern is that instead of cash and support, D.C. will add more responsibilities to State Plans, which will further hinder their effectiveness.  As an example, State Plans are unsure how to respond to Fed-OSHA’s February 21, 2013 Interpretation Letter encouraging more third-party involvement in OSHA inspections.  Changes like this Interpretation will disrupt the inspection process and place more burdens on already overworked OSHA Compliance Officers.  The proposed law isn’t awful, but it does add to the State’s burdens and gives Fed-OSHA faster more wide ranging powers than under Section 18 of the OSHAct of 1970.


Some advocates of the legislation point to Nevada-OSHA and the problems it encountered with the mammoth, Las Vegas City Center project.  Nevada-OSHA is a professional operation, and many observers believe that City Center’s problems reflected the perfect storm of a gigantic project with 9,000 employees, almost 100 architects, and local unions who could not supply an adequate amount of qualified crafts people . . . not incompetent OSHA professionals.


OSHA has taken a large role in Nevada-OSHA’s operations, without changes in the law, although I am not aware of studies noting great improvements in its operations. This begs the question, does Fed-OSHA reasonably need more powers to deal with State-OSHA Plans?  The GAO Report cites Hawaii cutting the Hawaii-OSHA budget by 50%.  However, Federal-OSHA was able to take over Hawaiian inspections without new laws.


Absent more funds, legislation needs to be scrutinized to determine if it will make OSHA more effective and workers safer.  Valid concerns have been raised about State OSHA Plans, but the proposed legislation does not seem to address those concerns, and may add more burdens.  Some State Plans may just close shop and let Fed-OSHA take over.  One might suspect such an outcome appeals to some inside the beltway, but surely not in this era of inadequate OSHA budgets.


It would be great if there could be a bipartisan effort to simply provide more money to Federal-OSHA and the State Plans, and to make it unnecessary for Federal-OSHA to impose more demands on already overextended personnel.  Our President established April 28 as Workers’ Memorial Day.  Wouldn’t a bipartisan effort to better fund OSHA be a great way to honor next April 29, 2014?

About mavity2012

I am a Senior Partner operating out of the Atlanta office of Fisher & Phillips LLP, one of the Nation’s oldest and largest management employment and labor firms. My practice is national and keeps me on the road or in one of our 28 offices about 50 percent of the time. I created and co-chair the Firm's Workplace Safety and Catastrophe Management Practice Group. I have almost 29 years of experience as a labor lawyer, but rely even more heavily on the experience I gained in working in my family's various businesses, and through dealing with practical client issues. Employers tell me that they seldom meet an attorney who delivers on his promise to provide practical guidance and to be a business partner. As a result, some executives probably use different terms than “practical” to describe my fellow travelers in the profession. I don't enjoy the luxury of being impractical because I spend much of my time on shop floors and construction sites dealing with safety, union and related issues which are driven by real world processes and the need to protect and get the most out of one's most important business assets ... its employees. That's one of the reasons that I view safety compliance as a way to also manage problem employees, reduce litigation and develop the type of work environment that makes unions unnecessary. Starting out dealing with union-management challenges and a stint in the NLRB have better equipped me to see the interrelationship of legal and workplace factors. I am proud also of my experience at Fisher & Phillips, where providing “practical advice” is second only to legal excellence among the Firm’s values. Our website lists me as having provided counsel for over 225 occasions of union activity, guided unionized companies, and as having managed approximately 450 OSHA fatality cases in construction and general industry, ranging from dust explosions to building collapses, in virtually every state. I have coordinated complex inspections involving multi-employer sites, corporate-wide compliance, and issues involving criminal referral. As a full labor lawyer, I oversee audits of corporate labor, HR, and safety compliance. I have responded to virtually every type of day-to-day workplace inquiry, and have handled cases before the EEOC, OFCCP, NLRB, and numerous other state and federal agencies. At F & P, all of us seek to spot issues and then rely upon attorneys in the Firm who concentrate on those areas. No tunnel vision. I teach or speak around 50 times per year to business associations, bar and professional groups, and to individual businesses. I serve on safety committees at three states’ AGC Chapters, teach at the AGC ASMTC
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