Andrew Strom,
Associate General Counsel, SEIU

In 2010, a trainer at SeaWorld drowned when the killer whale she was working with during a performance “grabbed her and pulled her off the platform into the pool, refusing to release her.”  The Occupational Safety and Health Administration (OSHA) investigated the incident and issued citations to SeaWorld for willfully exposing trainers to the recognized hazards of drowning or injury while working with killer whales during performances.  An Administrative Law Judge (ALJ) upheld the citation, the Occupational Safety and Health Review Commission agreed, and two out of three judges on the D.C. Circuit denied SeaWorld’s petition for review.  But Brett Kavanaugh, Donald Trump’s nominee for the Supreme Court, dissented, arguing that OSHA lacked authority to “paternalistically decide” that the trainer needed to be protected from the whale.  If the Senate confirms Kavanaugh’s nomination, we can expect repeated instances where he will similarly insist that the agencies that Congress created to protect workers and the general public somehow overstepped their authority.

Congress enacted the Occupational Safety and Health Act in 1970.  In 1977, a unanimous Supreme Court explained that the law was passed because Congress concluded “that work-related deaths and injuries had become a ‘drastic’ national problem.”  The law requires employers to provide employment that is “free from recognized hazards that are causing or are likely to cause death or serious physical harm” to workers.  Despite the “unqualified and absolute” language in the statute, over the years, the courts have interpreted the law to apply only where “a feasible means to eliminate or materially reduce the hazard exist[s].”

In the SeaWorld case, there was substantial evidence that SeaWorld knew that its killer whales posed serious risks to trainers.  In fact, the same whale that was involved in the 2010 incident had previously killed another trainer at a different marine park.  There was also evidence in the record of other dangerous incidents involving other killer whales at SeaWorld (e.g. in 2006 a killer whale had pulled a trainer underwater and repeatedly submerged him for 10 minutes). The ALJ had also found that OSHA’s proposed means of abating the hazard – maintaining a minimum distance from the killer whale or imposing a physical barrier between the killer whale and the trainer – was feasible, and in fact, had already been implemented by SeaWorld.

Facebook has donated thousands of dollars in recent months to House Intelligence Committee Chairman Rep. Devin Nunes (R-CA), one of the leading congressional voices fighting Special Counsel Robert Mueller’s investigation into Russian interference in the 2016 election and potential presidential obstruction.

In a tweet Monday morning, social bookmarking site Pinboard noted the social media giant — which is intertwined with the Russia investigation over its failure to prevent fake Russian troll accounts from spreading disinformation during the 2016 election — had reportedly made a $1,000 donation to the Devin Nunes Campaign Committee on June 29.

Facebook has donated a total of $6,000 to Nunes’ committee for the general election cycle in 2018.

Nunes is one of the members of Congress most skeptical of the Russia investigation. Most recently, he criticized Mueller’s indictment of 12 Russian officials charged with hacking the Democratic National Committee and Democratic Congressional Campaign Committee servers, as well as the email accounts of Hillary Clinton campaign staffers, calling the indictment “ridiculous.”