Final OSHA Recordkeeping Rollback Goes to OMB Review

Jordan Barab

Jordan Barab Former Deputy Assistant Secretary of Labor, OSHA

SHA just made history. For the first time in human memory, an OSHA regulation has gone over to the White House for OMB review earlier than predicted in the Regulatory Agenda.

You may recall last July, OSHA proposed to rescind the part of the agency’s “Electronic Recordkeeping” regulation, issued under the Obama administration, that would have required certain employers to send to OSHA detailed information on injuries and illnesses from the OSHA 300 Form and the  more detailed 301 form.

The Fall 2018 Regulatory agenda had predicted that the regulation would go over to OMB’s Office of Information and Regulatory Affairs (OIRA) on time for the standard to be issued in June 2019. OIRA is generally given 90 days to review a standard or regulation and often takes longer. In order to meet the June schedule, OSHA would have had to send it to OIRA by the end of March. The agency is running three months ahead of schedule.

Now, as I’ve said many times, no matter what party controls the agency. OSHA almost never meets — much less exceeds — the schedule set in the Regulatory Agenda, especially in the middle of a Presidential term when there’s no pressure to finalize regulations before the clock runs out. Everything always takes longer than expected and other priorities tend to get in the way.

So, you might ask, what’s the rush?

One answer may be that it just didn’t take very long to analyze the comments submitted on the proposal.  The comment period just closed at the end of September, less than three months ago. Of course, it may not have taken very long because OSHA’s argument in favor of repealing the requirements had no substance. Using its best  Orwellian reasoning, OSHA’s press release announcing the rollback portrayed it as an effort to “better protect” workers’ confidential information by keeping that information out of the possession of OSHA and protected from possible future changes in what’s allowed in a Freedom of Information Act (FOIA) request. FOIA currently exempts confidential worker and employer information from public disclosure.

What OSHA seemed to have overlooked in its proposal, however, is that the regulation never required employers to send confidential information into the agency in the first place.  Instead of an effort to better protect workers’ confidential information, OSHA proposed a poorly justified attempt to protect employers from having to reveal potentially embarrassing information.

There were also some half-baked economic arguments that OSHA attempted to use, but not much real substance there either.

(If you’re interested in a comprehensive view of why the proposal was “unsupported by any evidence provided by OSHA,” you can read the comments on the proposal prepared by former OSHA head David Michaels, former MSHA Deputy Greg Wagner and myself here.)

So maybe the agency realized that they had no grounds to roll back the regulation in the first place, and they’ve decided to just make a few cosmetic changes and call it a day.

That might be wishful thinking.

Why else would OSHA be rushing? What has changed since the Fall Regulatory Agenda was released last October? Bingo! The loss of at least 40 Congressional seats and Republican control of the House of Representatives.

What’s clear is that OSHA’s quick action will not be in the public interest; certainly not in the interest of workers who have a need and a right to know more about who is getting hurt in American workplaces and how.

So is OSHA trying to get the White House to approve the final rollback in the next couple of weeks before the new Congress takes over? That would be unprecedented speed for OIRA action and indicative of ulterior motives. (It would also ruin the vacation plans of many OIRA staffers, but anything for the Administration’s supporters.)

It’s not clear what a Democratically controlled House of Representatives could do about the regulatory change in any case, aside from holding oversight — something that hasn’t existed for the last two years.

Curious Congresspersons may want to know, for example, why the agency is not implementing a rule that is still on the books and hasn’t been modified or repealed yet. 

Or is OSHA trying to beat the March deadline for sending in the 2018 injury and illness data? Seems like a likely reason in case a court asks why an agency is not implementing a duly issued regulation. Rushing a final regulation through would make that question mute — although still open to legal challenge after it is issued.

What’s clear is that OSHA’s quick action will not be in the public interest; certainly not in the interest of workers who have a need and a right to know more about who is getting hurt in American workplaces and how.  And if they stop to think about it, access to this information will help employers as well.

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Reposted from Confined Space

Posted In: Allied Approaches

Union Matters

Federal Minimum Wage Reaches Disappointing Milestone

By Kathleen Mackey
USW Intern

A disgraceful milestone occurred last Sunday, June 16.

That date officially marked the longest period that the United States has gone without increasing federal the minimum wage.

That means Congress has denied raises for a decade to 1.8 million American workers, that is, those workers who earn $7.25 an hour or less. These 1.8 million Americans have watched in frustration as Congress not only denied them wages increases, but used their tax dollars to raise Congressional pay. They continued to watch in disappointment as the Trump administration failed to keep its promise that the 2017 tax cut law would increase every worker’s pay by $4,000 per year.

More than 12 years ago, in May 2007, Congress passed legislation to raise the minimum wage to $7.25 per hour. It took effect two years later. Congress has failed to act since then, so it has, in effect, now imposed a decade-long wage freeze on the nation’s lowest income workers.

To combat this unjust situation, minimum wage workers could rally and call their lawmakers to demand action, but they’re typically working more than one job just to get by, so few have the energy or patience.

The Economic Policy Institute points out in a recent report on the federal minimum wage that as the cost of living rose over the past 10 years, Congress’ inaction cut the take-home pay of working families.  

At the current dismal rate, full-time workers receiving minimum wage earn $15,080 a year. It was virtually impossible to scrape by on $15,080 a decade ago, let alone support a family. But with the cost of living having risen 18% over that time, the situation now is far worse for the working poor. The current federal minimum wage is not a living wage. And no full-time worker should live in poverty.

While ignoring the needs of low-income workers, members of Congress, who taxpayers pay at least $174,000 a year, are scheduled to receive an automatic $4,500 cost-of-living raise this year. Congress increased its own pay from $169,300 to $174,000 in 2009, in the middle of the Great Recession when low income people across the country were out of work and losing their homes. While Congress has frozen its own pay since then, that’s little consolation to minimum wage workers who take home less than a tenth of Congressional salaries.

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A Friendly Reminder

A Friendly Reminder