Under Obama, Labor Agencies Beefing up Budgets, Enforcement

Under Obama, Labor Agencies Beefing up Budgets, Enforcement

Some in the manufacturing community worry that an attempt to issue an OSHA ergonomics standard is on the way.

Labor historians agree: Over the past few decades, a change in political party at the White House usually signals a dramatic change in the federal government's approach to labor policy.

"Absolutely. This is not a close call," explains Robert Trumble, professor of management and director of the Virginia Labor Studies Center at Virginia Commonwealth University. "And the [U.S.] Chamber of Commerce and AFL-CIO see it the same way also."

Washington, D.C.-based journalist Phil Dine, author of "State of the Unions: How Labor Can Strengthen the Middle Class, Improve Our Economy, and Regain Political Influence," puts it this way: When a Republican administration is in power, unions are "persona non grata"; when a Democratic administration is in power, "[unions] are among the first people invited to the White House to forge new policies."

These differences in philosophy aren't limited to the way administrations approach policies regulating unions. For example, experts see a dramatic difference in the Obama administration's approach to worker safety and health.

Labor Lawyer: 'More Fines and Penalties and Blood in the Streets'

David Michaels, assistant secretary of labor for occupational safety and health

Speaking at a U.S. Small Business Administration Office of Advocacy roundtable on Jan. 22, new OSHA chief David Michaels declared: "Under this administration, OSHA is returning to the original intent of the OSH Act. We're a regulatory and enforcement agency and we're going to act like it."

"We're moving from reaction to prevention, beefing up enforcement and moving the regulatory agenda forward," Michaels added.

The numbers support Michael's declaration. The Labor Department's fiscal year 2010 budget funded 100 new OSHA inspectors, and the fiscal year 2011 budget proposes to hire 25 more inspectors and move 35 OSHA employees from compliance assistance to enforcement.

Meanwhile, the agency "is moving ahead with an aggressive regulatory agenda," as Michaels put it, including a controversial proposal to restore the column for musculoskeletal disorders on the OSHA 300 Log.

The Department of Labor's Wage and Hour Division, which enforces federal labor laws on issues such as the minimum wage and overtime pay, also receives a bump in funding in the proposed fiscal 2011 budget. The agency is slated to receive a $20 million increase over the 2010 budget appropriation, including funding to hire 90 new investigators.

When unveiling the Labor Department's budget request in February, Secretary of Labor Hilda Solis remarked that the proposed 2011 budget "builds on the 2010 budget policy of returning worker protection programs to FY 2001 staffing levels, after years of decline."

"With these increases, the Labor Department's worker protection agencies will be able to vigorously protect wages and working conditions of 135 million workers in more than 7.3 million workplaces," Solis said.

Ed Foulke Jr., partner, Fisher & Phillips LLP

At the U.S. Equal Employment Opportunity Commission, the fiscal 2011 budget request is $385.3 million, an increase of $18 million over fiscal 2010. In its congressional budget justification, the commission said the additional funding is "vital to increase hiring to improve enforcement initiatives, reduce the backlog, target systemic litigation and reinvigorate federal sector enforcement."

Former OSHA chief Ed Foulke Jr., who is a partner at the national labor and employment law firm Fisher & Phillips LLP, asserts that the shift toward enforcement and rulemaking is not limited to the agencies mentioned above.

"It's a theme that runs completely through all of government," Foulke says.

Adds colleague D. Albert Brannen, also a partner with Fisher & Phillips: "All these agencies want more fines and penalties and blood in the streets."

Prelude to an Ergonomics Standard?

The Labor Department's "added focus on enforcement of existing regulations and promulgations of new regulations" is troublesome to the National Association of Manufacturers (NAM), according to Keith Smith, NAM's direct of employment and labor policy.

"With that aggressive approach to enforcement, unfortunately you've seen it come at the expense of employer compliance assistance programs that have been very effective in helping with a continued improvement of workplace safety rates," Smith tells IndustryWeek.

Among manufacturers' biggest concerns with Labor Department policy is the aforementioned proposal to restore the column for musculoskeletal disorders (MSD) on the OSHA 300 Log, Smith says. The proposed rule, titled "Occupational Injury and Illness Recording and Reporting Requirements," would require employers to check the MSD column if a workplace injury meets the definition of an MSD, according to OSHA.

Keith Smith, director of employment and labor policy, National Association of Manufacturers

"Because that's in the comment period and that's going through the regulatory process, we can't go into a lot of details there, but we do see the proposal... as a precursor to efforts to restore some form of an ergonomics standard," Smith says. "That ergonomics standard was repealed in 2001 because of the high economic impact it would have on manufacturers."

Foulke agrees.

"This way [OSHA is] going to be able to show, 'Here are all the musculoskeletal disorders, and we have a serious problem here, because 20%, 30%, 40% or whatever of the injuries listed on the logs are actually MSDs. So now we need an ergonomics standard,'" Foulke says. "...I'm kind of curious to see how that will play out."

OSHA's Michaels, however, in his Jan. 22 speech, insisted that the proposed rule "is not a prelude to a broader ergonomic standard."

"MSDs continue to be a major problem for American workers, but at this time, OSHA has no plans for regulatory activity," Michaels said.

Another concern for the National Association of Manufacturers is OSHA's national emphasis program on recordkeeping to crack down on potential underreporting of injuries and illnesses. Unveiled in October, the program includes records reviews, employee interviews and a limited number of workplace inspections, according to OSHA.

"OSHA needs accurate data to effectively targets its inspections and resources, and to measure the impact of OSHA's actions on workplace safety," Michaels said on Jan. 22. "...We were very concerned about recent studies, congressional hearings and a GAO report that not only documented serious underreporting, but also significant disincentives for workers and employers to report accurately."

Smith asserts that regardless of "the amount of under or overreporting that may be taking place," statistics show that workplaces have been getting safer over the past decade or so.

"That trend is undeniable," Smith says. "...We need to look at what has been contributing to those improvements and really reinforce those programs."

Bracing for Tougher Enforcement at OSHA

It's clear that OSHA and other labor and employment agencies are ramping up enforcement of existing regulations. Foulke notes that there has been "a huge increase in the number of significant cases" (cases involving fines of $100,000 or more) at OSHA, and the agency is on pace to possibly triple the number of significant cases compared with last year.

To be prepared for OSHA's increase in enforcement, Foulke offers these tips for manufacturers:

  • Know the safety and health standards that apply to your operations. "And that's not a difficult thing to do," Foulke says. To view OSHA's entire catalog of standards, visit the OSHA Web site.
  • Be prepared to handle an OSHA inspection. "Because it astounds me how many employers have no idea what their legal rights are under the [Occupational Safety and Health] Act," Foulke says. "OSHA doesn't control their work site." For example, Foulke notes that employers are entitled to be part of an OSHA walk-around and take pictures if they feel it is necessary.
  • Determine your safety weaknesses by conducting self-audits. "When you correct those deficiencies, you're going to eliminate hazards, you're going to reduce injuries, you're going to reduce your workers' comp costs and you're going to end up being more profitable and competitive," Foulke says. "It's a win-win situation."
For more on the Obama administration's labor and employment policies, read "Is EFCA's Time Now?" in the upcoming April issue of IndustryWeek, appearing on IndustryWeek.com on March 17.
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