Michaels Disputes Claims That Current OSHA Is More Aggressive Than Its Predecessors

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By David Schwartz  

SARASOTA, Fla.—David Michaels, assistant secretary of labor for occupational safety and health, and his top deputies told the American Bar Association March 14 that OSHA is always striving to improve but it has not gotten fundamentally more aggressive against employers under the current administration.

Deputy Assistant Secretary Richard Fairfax, for example, spoke on a panel entitled “OSHA's Increased Emphasis on Enforcement—the Results So Far.”

“It should be called ‘consistent emphasis,' not ‘increased,’ ” he remarked.

A phrase repeated during the first day at the ABA Occupational Safety and Health Law Committee Midwinter Meeting in Sarasota, Fla., was “perception versus reality.”

Michaels, who opened the meeting, said that “in the halcyon years of OSHA”—the late 1970s—the organization had 38 inspectors per million workers. It now has 23 per million.

He added that the annual number of inspections over a four-year period, from fiscal year 2007 to 2011, had increased by 1,324, from 39,324 to 40,648, or about 3 percent.

Industry groups and members of Congress have criticized the agency for what they say are aggressive enforcement tactics that do not necessarily result in a safer work environment. In a March 8 interview with Bloomberg BNA, Rep. John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, criticized the agency's focus on punishment while proposing budget cuts for compliance assistance programs (see related article).

Michaels said that he was recently asked how many standards OSHA had released in the previous two months. The answer, he said, was 10 in 11 years. “I often ask: Which regulations would you like us to withdraw? I haven't heard any answers.”

Michaels also addressed one of the activities that OSHA that has sparked the loudest outcry from the business community, the so-called practice of “shaming” by press release—statements that sometimes go into great detail about a particular company's practices after it has been cited for violations.

‘Nothing New.’

Michaels displayed examples of similar press releases going back to 2002. “We put these quotes out because employers have done things that are really miserable. It's a problem. My point is: We do it for a reason, and it's nothing new.”

Michaels concluded, “Enforcement works. We think consultation with employers works as well.”

Fairfax presented several graphs to the group to support Michaels's contention. Comparing fiscal 2007 to 2011, he said that serious, willful, and repeat violations have edged down from 79 percent of all violations to 78 percent. The number of times employers contest citations has increased from 7 to 8 percent in that time, although contest rates for smaller companies have risen more.

Fairfax said that the percentage of citations for serious violations had dropped from 76 to 73 percent. He noted, however, that the average penalty amount for a serious violation has more than doubled during the period, from an average of $918 to $2,133.

At a later session on state plans, Jay W. Withrow, director of the division of legal support for the Virginia Department of Labor, saying he was speaking anecdotally, speculated that the drop in the percentage of serious citations could be due to OSHA compliance officers downgrading citations because of their reluctance to impose these higher penalties.

Too Many Employers Cast as ‘the Enemy.'

Jonathan Snare, with the law firm of Morgan Lewis in Washington, D.C., who had served as acting assistant secretary of labor for OSHA, as well as acting solicitor of labor during the George W. Bush administration, said, “One of the biggest concerns from the management standpoint is that more employers than the bad actors are being treated as ‘the enemy.’ ”

He added that he was not questioning whether it was appropriate to issue press releases, he was questioning “whether it's appropriate to this extent.”

Marc Freedman, executive director of labor law policy with the U.S. Chamber of Commerce, asked Michaels why OSHA does not state more clearly that it is simply being consistent.

“I've always tried to be clear that OSHA has always done its enforcement job, but we should always try to do better,” Michaels said. He then compared OSHA's actions with what he said was the recommended response when a hiker is confronted by a mountain lion.

“Make yourself look bigger. We're a little agency, trying to make itself look big. We're trying to do different things.”

The Occupational Safety and Health Law Committee is a division of the ABA Section of Labor and Employment Law.