Four OSHA Bills Promote Fairness for Small Businesses, Improve Worker Safety, Competition, Job Creation

July 12, 2005

Developing better cooperation between the Occupational Safety and Health Administration (OSHA) and employers can improve workplace safety, enhance business competitiveness, and foster more job creation to spur the economy.  The following four bills, introduced by Rep. Charlie Norwood (R-GA) and previously passed by the House in the 108^th Congress, ensure that OSHA enforcement efforts are fair for small businesses that make good faith efforts to comply with all health and safety laws.  These reforms improve worker safety by making it easier for employers to work voluntarily and proactively with OSHA to ensure safe and secure workplaces.

·      Allowing Small Businesses to Have Their Day in Court.  The Occupational Safety and Health Small Business Day in Court Act (H.R. 739) gives the Occupational Safety and Health Review Commission (OSHRC) additional flexibility to make exceptions to the arbitrary 15-day deadline for employers to file responses to OSHA citations when a small business misses the deadline by mistake or for good reason.  Under current law, employers who fail to meet this 15-day deadline may lose their right to a day in court, regardless of whether there were intervening circumstances that inadvertently caused an employer to miss the deadline.  The bill essentially codifies an administrative action taken by the Labor Department last year and restores some common-sense and flexibility to the law.  On July 12, 2005, the House passed the bill by a vote of 256-164, with 31 Democrats supporting the bill.

·      Ensuring a Timely Review of Backlogged Cases.  The Occupational Safety and Health Review Commission Efficiency Act (H.R. 740) increases the membership of OSHRC from three to five members to ensure cases are reviewed in a timely fashion.  Because a quorum of two (of the three) commissioners is needed for decision-making, OSHRC has often been unable to act.  The appointment process is sometimes controversial, leading to vacancies, and sometimes Commissioners must recuse themselves from cases, meaning obtaining a working quorum is often difficult, if not impossible.  Increasing membership to five Commissioners will help ensure that cases are reviewed in a more timely fashion.  On July 12, 2005, the House passed the bill by a vote of 234-185, with eight Democrats voting for the measure.

·      Establishing Independent Review of OSHA Citations.  The Occupational Safety and Health Independent Review of OSHA Citations Act (H.R. 741) restores the original system of checks and balances intended by Congress when it enacted the OSHA law and ensures that OSHRC (“the Court”), and not OSHA (“the prosecutor”), would be the party who interprets the law and provides an independent review of OSHA citations.  Since 1970, the separation of power between OSHA and the review commission has become increasingly clouded because of legal interpretations, mostly argued by OSHA in efforts to expand its authority.  Congress intended there to be a truly independent review of the disputes between OSHA and employers and when this dispute centers on OSHA’s interpretation of its authority, Congress intended the independent review commission and not the prosecuting agency, OSHA, to be the final arbiter.  The bill restores the original system of checks and balances intended by Congress.  On July 12, 2005, the House passed the bill by a vote of 226-197, with nine Democrats supporting the bill.

·       Allowing Small Employers to Recover Attorneys’ Fees.  The Occupational Safety and Health Small Employer Access to Justice Act (H.R. 742) levels the playing field for small businesses and encourages OSHA to better assess the merits of a case before it brings unnecessary enforcement actions to court against small businesses.  Under current law, the Equal Access to Justice Act (EAJA) allows small business owners to recover attorneys’ fees if the owner successfully challenges a citation.  However, if OSHA can establish that its enforcement action was “substantially justified” or the result of “special circumstances,” small businesses can be refused attorneys’ fees even if OSHA loses the case in court.  Historically, the law’s “substantially justified” and “special circumstances” standards have made it easy for OSHA to prevent recovery under this broad standard, so attempts by small business owners to recover costs often exacerbate the financial harm caused by OSHA’s dubious enforcement actions.  On July 12, 2005, the House passed the bill by a vote of 235-187, with 17 Democrats voting for it.