The federal process for regulating American businesses was the focus of a hearing held on April 5 by the Education and the Workforce Subcommittee on Oversight and Investigations. The same subcommittee held a similar hearing on the practices of the Occupational Safety and Health Administration (OSHA) on January 28 (see The Source, 2/3/00, p. 3).
Telecommuters Committee Chair Peter Hoekstra (R-MI) has introduced a bill (H.R. 4098) that would require OSHA to clarify its stance on labor standards for at-home workers. The legislation follows a letter written last November and reported in the media in early January. In response to a request for information on OSHA policy, the letter indicated that employers would be held responsible for federal health and safety violations occurring within the homes of at-home workers, including office workers who telecommute.
However, the letter—which drew considerable media attention and complaints from several business groups—was withdrawn within two days by Secretary of Labor Alexis Herman, whose department oversees OSHA.
Opening the April 5 hearing, Rep. Hoekstra said testimony delivered on January 28 indicated that “no one in a senior management position at the U.S. Department of Labor (DoL) had any idea that the [changed] work-at-home…policy had been publicly released.” Since that hearing, however, OSHA “has failed to provide this subcommittee with an adequate answer” about how the error occurred, he said.
Acting Deputy Secretary of Labor Edward Montgomery testified on behalf of the DoL, saying that lessons have been learned from the incident. “Once we realized the unintended consequences…we moved expeditiously to rectify our error,” he said, adding: “Our agency heads understand that we need better controls when we are making new policy statements or when we are commenting…on existing practices.”
Rulemaking Practices In his opening remarks, Rep. Hoekstra expressed concern that “a number of questions have arisen about DoL’s conduct in managing its rulemaking,” adding: “We have repeatedly heard that a ‘regulatory arrogance’ exists at DoL in many of their dealings with the public. Charges that the ‘deck is stacked’ against those who disagree with the DoL are very serious.”
Arthur Sapper, a lawyer who specializes in OSHA law with McDermott, Will & Emery, said the U.S. Supreme Court decision Martin v. OSHRC (CF&I Steel Corp.) “undermines the rulemaking process.” He added, “Instead of open and public policy-making, the decision encourages OSHA to resolve major policy issues in secretly-written interpretation letters and compliance directives.”
According to Mr. Sapper, ambiguity is common when a company challenges an OSHA rule or the agency’s interpretation of a regulation. In those situations, due to the Supreme Court decision, “it is not enough to show that OSHA is wrong; OSHA must be ‘clearly’ wrong,” he said. “If a court is unsure of the correct interpretation of an OSHA standard or statute…OSHA wins if its position is ‘reasonable,’ even if the court thinks that OSHA’s view is wrong.”
