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Is Acosta Being Kicked Upstairs?

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If you read last Monday’s Punching In by Bloomberg Law crack reporters Benn Penn and Chris Opfer, you know that there are some management attorneys who are less than enamored of Alex Acosta’s less-than-stellar deregulatory accomplishments and wish President Trump would kick him upstairs to a judgeship, which (rumor has it) is where the 49 year old former federal prosecutor would like to end up eventually.

After all, 15 months after Trump’s inauguration and one year after Acosta was sworn in, construction workers are still breathing air free from cancer causing silica dust, thanks to the efforts of the dreaded Obama administration.  Never mind that the court unanimously rejected the industry’s attempt to overturn the rule (which Acosta’s Labor Department vigorously and successfully defended.)

But hope springs eternal. The general industry Silica standard has not yet taken effect, so the Administration could theoretically still succeed in giving foundry workers the right to get cancer at work.

Taking Acosta’s place in these corporate fever dreams would be the newly appointed and allegedly less cautious Deputy Secretary of Labor Pat Pizzella. It seems that for some people there aren’t enough Trump Cabinet agencies embroiled in scandal and the Jack Abramoff-tainted Pizzella would undoubtedly be a much better fit with the rest of Trump’s ethically challenged cabinet members than the boring, straight-laced, and (so-far) ethically untainted Acosta.

Presumably, the climax of these management attorneys’ fantasies would be the appointment of a Scott Pruitt type to head the Labor Department — without the daily scandals of course.  But this raises some issues.

First, as former OMB analyst (and current Rutgers professor) Stuart Shapiro wrote last week, Pruitt’s deregulatory “accomplishments” have been more rhetoric and failure than actual accomplishment.

The reality is that he’s made less headway than advertised. To date, Pruitt’s EPA has been taken to court repeatedly over efforts to delay or repeal regulations finalized near the end of the Obama administration. His record in court on these issues is not good. The courts have struck down six attempts to delay or roll back regulations on pesticides, lead paint and renewable-fuel requirements, The New York Times reported.

The main reason for Pruitt’s failures is that he is no better at complying with regulatory rules than his is with ethics rules.

Repealing a regulation is hard. In fact it is just as hard as enacting one. In his haste to dismantle President Obama’s environmental legacy, Pruitt has skirted the procedural requirements necessary to defend his actions in court.  Those procedures are not easy to follow, but failure to follow them means near-certain defeat in the courts. The best way to make sure that the i’s are dotted and t’s are crossed is to rely on the experts, the civil servants within EPA.

And EPA’s civil servants are fleeing. (See “Rats,” “Sinking Ship.”)

Acosta, to his credit, seems to understand that problem, aside from the momentary lapse when he neglected to include the economic analysis of his tipping rule. But with the help of Congress, everyone pretty much kissed and made up over that too.

Yes, in theory, Acosta could ride into the sunset to be replaced with a Scott Pruitt/Andy Puzder Frankenstein’s monster at DOL who would try to rape and pillage worker protections without passing go — and without complying with the Administrative Procedures Act, the OSH Act or the many other laws that lay out rulemaking procedures based on the tiresome requirements of evidence, science and public input.

But as we’ve seen in this administration, undermining an agency’s mission and cutting corners on administrative procedures tends to go hand-in-hand with cutting corners on ethics — as well as the law.  Not a very good combination if your goal is to actually get something accomplished.

Alex Acosta may not my my ideal Labor Secretary by a long shot — and he will certainly never live down his infamous naming of Ronald Reagan to the Labor Hall of Honor (a deed that will be as hard to live down as Mitt Romney heading out on the family vacation with his dog strapped to the top of this car,) but he’s about the best we could expect in a Trump administration that sports such Cabinet luminaries as Scott Pruitt, Ben Carson, Jeff Sessions, Ryan Zinke, Steve Mnuchin and Betsy DeVos.

After all, he actually defended his failure to slash the budgets of DOL’s enforcement agencies before Congress by making the shockingly un-Republican argument that “Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced.”

Which is probably why this cabal of one-martini-over-the-line corporate attorneys would like to show him the door.

This blog was originally published at Confined Space on May 5, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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Do Fewer OSHA Inspectors Matter?

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One sign that anti-OSHA conservatives are getting nervous about articles (and television appearances) highlighting the declining number of OSHA inspectors are articles questioning whether government plays a useful role in protecting workers. In this case, the Reason Foundation, which “advances a free society by developing, applying, and promoting libertarian principles, including individual liberty, free markets, and the rule of law,” has concluded that reducing the number of OSHA inspectors has no effect on workplace safety.

When I see an article entitled Will Deregulation Kill Workers? by Reason Magazine assistant editor Christian Britschgi, normally I wouldn’t bother to give them any undeserved attention, but some of the arguments he uses are, unfortunately, still commonly used by conservatives in the media and Republicans in Congress, and from time to time we need to expose them.

Based on writings by Bentley University economist John Leeth, Britschgi is basically saying that OSHA isn’t needed because “Employers have much stronger incentives than OSHA to provide a safe workplace.” What are these “stronger incentives” that make OSHA enforcement superfluous?

Workers Compensation: Workers comp, they note, grows more expensive with new injuries and accidents.  And it’s much more significant than OSHA penalties because “workers comp policies cost employers $91.8 billion in 2014…. Total OSHA penalties in that same year totaled only $143.5 million.”

OK, well first, if those numbers are relevant, then that sounds like a great argument to increase OSHA penalties significantly. But the fact is, because State legislatures and courts have undermined workers compensation benefits for injured workers, workers comp covers less and less of the real cost of workplace injuries and illnesses, according numerous studies cited in a 2015 OSHA report, Adding Inequality to Injury:

workers’ compensation payments cover only a small fraction (about 21 percent) of lost wages and medical costs of work injuries and illnesses; workers, their families and their private health insurance pay for nearly 63 percent of these costs, with taxpayers shouldering the remaining 16 percent.

Moreover, most workers injured or made ill on the job don’t even receive workers compensation and vulnerable and low-wage workers fare even worse.  Finally, compensating workers for occupational disease is almost non-existent. One study estimates that as many as 97 percent of workers with occupational illness are uncompensated.

Labor markets: Workers would rather work where it’s safe, so they will naturally take jobs working in safer companies rather than unsafe companies. Unsafer companies will therefore be forced to pay workers more to attract them to their unsafe workplaces.  This will provide a natural incentive for employers to make their workplaces safer because if their workplaces are safer, they won’t have to pay workers as much.

Now I’m not a credentialed economist, but even I can find major holes in this theory.  First, such a theory relies on workers having perfect information about which companies are safer than others. Now, this is interesting, because that’s exactly the theory the Obama administration used when issuing its electronic recordkeeping standard. Companies would be required to send their injury and illness information to OSHA and OSHA would post that information, allowing workers to choose safer companies. What’s interesting is that corporate America and Trump’s OSHA has done everything it can to ensure that employer safety records are not made public, from discouraging press releases to opposing the OSHA recordkeepign regulation, claiming that such information unjustly “shames” employers.

The “labor market” theory also assumes that workers would be able to simply and easily move from one (unsafe) employer to another without any loss of income –even assuming there is a safer employer down the street. Obviously that’s often not possible and in any case, that’s easier for high wage workers to lose a little income by changing jobs than lower wage employees who may be living paycheck to paycheck.  And if there are enough desperate workers who need a job, any job, that higher paying, unsafe job isn’t going to pay more for very long.  You’ll have the more common race-to-the-bottom, rather than a race to the top.

Finally, this equation puts workers in a position of choosing between safe jobs or better pay. If you happen to be in a post-Obamacare world with no health insurance and have a sick kid, you might be inclined to take the unsafe, higher paying job.  This is not a choice that we want workers to be forced to make — either from the viewpoint of morality, or the general public welfare. The whole point of the Occupational Safety and Health Act was to eliminate the need for workers to ever have to choose between their jobs and their lives, or better pay and their live.

The ability to sue over workplace injuries and health hazards: Huh? Employees don’t have the ability to sue over workplace injuries. The deal when workers compensation laws were first created is that this would be a “no-fault” system; workers give up the right to sue their employer, in return for relatively certain access to benefits following their injury. (Or at least that was the theory.) Britschgi would have known that (and taken safety and health more seriously) if he had read this article and listened to the accompanying video.

That fact that Britschgi, an assistant editor of Reason Magazine (and presumably his superiors) don’t know that workers can’t sue their employers should have sent this article directly to my Trash folder, so why am I bothering to even address it? I mean, for all I know, he’s 18 years old and this is his first job. Give the kid a break.

Because, as I said above, clearly he is not alone in his ignorance. There are undoubtedly lots of other people out there who think that workers can sue their employers. And easily move to safer jobs. And just rely on workers comp if they get hurt.

The bottom line is that more cops on the beat will make drivers drive more safely, just as more OSHA inspectors will make employers provide safer workplaces. It’s as American as law and order.

This blog was originally published at Confined Space on January 16, 2018. Reprinted with permission.

About the Author: Jordan Barab was Deputy Assistant Secretary of Labor at OSHA from 2009 to 2017, and spent 16 years running the safety and health program at the American Federation of State, County and Municipal Employees (AFSCME).


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