According to Dr. David Michaels, assistant secretary of Labor for OSHA, “the most effective means for OSHA to encourage elimination of life threatening hazards … is to publicize the names of violators, especially when their actions place the safety and health of workers in danger.”1 Michaels explained that to accomplish this, OSHA “will issue more hard-hitting press releases that explain more clearly why we cited a specific employer,” and dubbed this enforcement initiative “regulation by shaming.”2
Even under past administrations, it was not unusual for OSHA to issue news releases announcing significant enforcement actions. However, today’s OSHA takes enforcement press releases a step further.
In 2008, the final year of the Bush administration, OSHA issued 161 enforcement news releases, which generally identified only the bare facts about OSHA’s most significant enforcement actions.3 Today, OSHA is on pace to more than quadruple that number this year, already issuing more than 381 enforcement press releases through Aug. 10.4 The agency now issues releases about less significant matters (citations with penalties as low as $40,000), and more importantly, has begun to use inflammatory language to embarrass the cited employers.
There are three primary problems with “regulation by shaming.” First, as OSHA acknowledges, the harsh news releases harm employers’ reputations among potential customers and employees. Second, the news releases are issued contemporaneously with citations that merely are allegations, not final orders of the Occupational Safety and Health Review Commission (OSHRC), which raises constitutional due process implications. Finally, because OSHA has not been granted statutory authority to sanction by public shaming, employers could challenge that these press releases violate the Administrative Procedure Act (APA), which is the law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations.
Harm to Employers’ Reputations
OSHA under Michaels is committed to an enforcement-heavy philosophy, and while regulation by shaming is but one of many initiatives in OSHA’s enforcement arsenal, it appears to be his pet project. He has boasted about the effectiveness of a shaming campaign, saying, “As a mechanism for restricting undesirable behavior, or promoting desirable behavior, shaming is far less expensive or bureaucratic than most rules enforced by [a] federal agency.”5
Michaels explained that OSHA has modernized medieval punishment by putting employers in virtual “public stocks,” and leaving them to the “heaping of public scorn and anger.”6
Historically, OSHA has avoided excessive scorn in enforcement press releases, in even the most egregious cases. For example, in 2004, following a fatality at a power plant and an enforcement action including multiple serious violations, OSHA issued a simple, five-sentence press release identifying the barest of facts about the enforcement action, and did not include comment from an OSHA official.7 Press releases from today’s OSHA, on the other end of the spectrum, detail the nature and number of citations, the proposed penalty and invariably include provocative statements from a senior OSHA representative about the employer, even in non-injury cases.
The following excerpts demonstrate what we think is the subversive nature of OSHA’s press releases:
➤ “Failing to . . . hav[e] proper machine guarding and using machine-specific procedures . . . demonstrates a blatant disregard for the safety of workers.”8
➤ “This injury resulted from managers’ complacency, as they failed to oversee . . . operators to make sure fall protection was used. The fact that the body belt was too big for the operator shows a lack of concern and a desire to get the job done regard- less of danger to the workers.”9
➤ “No worker should have to risk his or her life for a paycheck.”10
OSHA is fully aware that regulation by shaming creates negative public perceptions about employers, which lead to a loss of customers and profit, and problems attracting and retaining personnel. With an unstable economy and constant market fluctuations, U.S. employers can hardly afford to have their reputations unnecessarily and unjustly tarnished.
Undermining Constitutional Due Process
Aside from the negative content, the timing of the press releases also is problematic. OSHA publishes its enforcement press releases when it first issues citations, before employers have an opportunity to correct any mistakes in the allegations, contest the citations or participate in a hearing before the OSHRC to prove the allegations false. Although OSHA regularly sets forth supposed facts that later are proven or even acknowledged by OSHA to be inaccurate or misstated, OSHA never issues a follow-up press release correcting or apologizing for unfounded statements.
Congress expressed concern about erroneous OSHA press releases that go uncorrected. Earlier this year, the House Committee on Education and the Workforce questioned Secretary of Labor Hilda Solis about uncorrected mistakes in enforcement press releases, but she evaded the topic.11
The timing of this practice threatens to undermine employers’ constitutional right to due process. Specifically, the U.S. Constitution guarantees that we have a right to be heard before the government acts to levy a penalty.12 Courts have found other agencies’ press releases to rise to the level of a penalty, even when the stated purpose was to inform the public of regulatory measures. For example, earlier this month, a federal court in Arizona found a press release punitive and warned that the “United States, and its employees, have a special duty not to injure the reputations of its citizens.”13
Crossing the APA
The APA governs the rulemaking function of federal agencies, and specifies the process by which agencies may enact rules, requiring a formal notice and comment period for proposed regulations. When an agency engages in practices exceeding the scope of its authority under the APA or the authority it has been granted by Congress, an offended party may challenge such practices in federal court.
Employers who feel aggrieved by an enforcement press release may seek review if the releases constitute a final agency action.14 Any challenge would require a showing that the press release rose to the level of a sanction or penalty, which, as discussed above, has been found by federal courts with regard to other agency press releases.15 A successful APA challenge of an OSHA news release also would require a court to find the news release arbitrary, capricious, an abuse of discretion or otherwise unlawful.16 Employers could make that showing by referencing the provisions of the OSH Act that set out the specific penalties OSHA is authorized to issue,17 and which do not include any form of punishment by shaming. Therefore, OSHA’s press releases, when punitive, could be arbitrary, capricious or an abuse of discretion.
Further, pursuant to the plain text of the OSH Act, OSHA may issue general press releases concerning investigations, findings and its rules and regulations.18 The provisions of the OSH Act granting OSHA this authority, as well as relevant case law, demonstrate that OSHA and other agencies may express their views of what the law requires of a party, even if that view is adverse to the party.19 OSHA’s new regulation by shaming campaign, on the other hand, exceeds this authority. Indeed, OSHA’s express goal is to penalize the referenced company, not inform the public, which conflicts with a 1998 amendment to the OSH Act that provides: “results of enforcement activities” may not be used “to impose … goals with regard to the results of such activities.”20
If OSHA were to remove the company names from its press releases, perhaps replacing the identity with “a company was cited ….” it would have the same effect of warning the public of workplace dangers, without adding additional and premature punishment. Congress spoke directly to the issue of negative publicity as a consequence for OSHA violations when it set the scope of penalties OSHA was authorized to issue, and rejected the practice. Therefore, employers could assert that the continued practice exceeds OSHA’s authority under the OSH Act and runs afoul of the APA.
OSHA’s Actions Pose Threat to Business
Advising the public on how to maintain safe and healthy workplaces does not require OSHA to vilify cited companies. Using the results of investigations to promote workplace safety falls under OSHA’s authority, but the OSH Act and the APA prohibit OSHA from singling out a company for public flogging. Specifically seeking to eliminate negative publicity, Congress amended the OSH Act to put an end to a goal-driven use of individual enforcement results, but employers believe today’s OSHA ignores Congress’ words.
Accordingly, OSHA’s regulation by shaming initiative poses a threat to small and big business alike. In an increasingly tumultuous economy, where client retention may be the difference between solvency and bankruptcy, a scathing news release from OSHA jeopardizes the economic well-being of many well-intentioned U.S. businesses.
OSHA’s recent trend of publicly scolding companies, especially before final agency action, is punitive, runs contrary to the mission of the U.S. Department of Labor, threatens to undermine employers’ constitutional due process rights and could well violate the Administrative Procedure Act.
The authors would like to acknowledge Clayton LaForge, a summer associate in the Labor and Employment practice, for his assistance with the article.
1 OSHA at Forty: New Challenges and New Directions,” Letter from Dr. David Michaels, Assistant Secretary of Labor for Occupational Health and Safety, to the U.S. Dept. of Labor, 4, July 19, 2010.
2Id.
3See, e.g., “OSHA Fines Downstate Illinois Power Plant Following Fatality Investigation,” OSHA Regional News Release, U.S. Dept. of Labor, Apr. 27, 2004.
4See OSHA News Releases, Occupational Safety & Health Admin., Dept. of Labor, available at http://www.osha.gov/pls/oshaweb/owasrch.search_form?p_doc_type=NEWS_RELEASES&p_toc_level=0, last accessed July 20, 2011.
5Dr. David Michaels, “Regulation by Shaming,” The Pump Handle, Nov. 29, 2006, http://thepumphandle.wordpress.com/2006/11/29/regulation-by-shaming/.
6Id.
7See, e.g., “OSHA Fines Downstate Illinois Power Plant Following Fatality Investigation,” OSHA Regional News Release, U.S. Dept. of Labor, Apr. 27, 2004.
8OSHA Newsroom, http://osha.gov/newsrelease.html.
9Id.
10Id.
11Statement of Congressman Scott DesJarlais, Hearing before the House Comm. on Educ. & the Workforce, 49, 112th Cong., Feb. 16, 2011.
12U.S. CONST. AMEND. V.
13Equal Employment Opportunity Commission vs. Serrano’s Mexican Restaurants, LLC, d/b/a Serrano’s Fine Mexican Food Restaurants, No. CV 02-1608-PHX-FJM, 2007 U.S. Dist. LEXIS 48803, at *6-7 (D. Az. July 5, 2011).
145 U.S.C. § 704.
1529 U.S.C. § 651(C).
165 U.S.C. § 706(2)(A). Courts will apply the well-known Chevron test to such claims, which disadvantages companies, as an agency’s construction of the statutes it administers is subject to a deferential standard of review. Chevron U.S.A., Inc. v. Natural Resources Defense Council Inc. 467 U.S. 837, 842-43 (1984).
1729 U.S.C. §§ 658, 666.
1829 U.S.C. § 657(g)(1)-(2).
19See, e.g., AT&T v. EEOC, 270 F.3d 973, 975 (D.C. Cir. 2001) (holding unreviewable an agency order that “does not itself adversely affect complainant but only affects his rights adversely on the contingency of future administrative action.”).
2029 U.S.C. § 657(h). Eliminating negative publicity specifically factored into Congress’ passage of this Amendment. During debate over the Amendment, Congress cited the testimony of a Vice President for HR at Sysco Corporation that “threats of penalty and negative publicity to intimidate even the largest corporations” may exceed OSHA’s purpose.