Labor Department’s lawyers to fight reductions of OSHA penalties, attack industry-wide issues

As OSHA pushes forward with tougher enforcement, the critical role played by the legal office of the Department of Labor is not always fully appreciated. The office of the Solicitor of Labor is not a part of OSHA, but handles its legal work and has a significant role in calling the shots on enforcement.

So for those trying to figure out where OSHA is headed, the annual operating plan issued by the solicitor’s office can provide important clues.

Jonathan Snare and Howard Radzely of the Morgan Lewis law firm have done an excellent job of analyzing that document in a recent article.

Among the things to watch for from OSHA and the solicitor’s office:

• Action from a new “Penalty Reduction Task Force,” set up to reduce the rate of cases in which administrative law judges and the OSHA Review Commission substantially reduce OSHA penalties.

• More publicity about litigation against alleged violators. This matches up with OSHA’s plan to make increased use of public “shaming” of companies that are issued citations.

• Greater emphasis on targeting allegedly unlawful practices across industries and enterprises, rather than company-by-company enforcement. What this means, Snare and Razely say, is: “employers should be alert to industry enforcement trends, and immediately adapt their policies and procedures to match current enforcement patterns. Employers no longer have the luxury of waiting for particular industry enforcement trends to ‘hit’ (or not) at their workplace, nor can they assume that enforcement will be limited to one facility.”

• Action from an “Ergonomics Response Team” to identify cases that have set precedents contrary to the agency’s agenda and then find cases that can be used to reverse those precedents.

• Development of a strategy to litigate against companies that evade penalties and compliance by going in and out of business.

The office is also preparing for expected legal challenges to the cranes standard and to the proposal to include a separate column to record musculoskeletal disorders on the OSHA 300 accident and illness log.

To keep up with the latest news about increased OSHA enforcement, subscribe to this blog and have it sent automatically to your Reader or email box.