On October 22, 2021, Senator Dianne Feinstein, Senator Robert Menendez, and Senator Brian Schatz joined Representative Andy Levin of Michigan to introduce legislation to require the publication of alleged workplace safety violations. The Keeping Workers Safe Act would direct the Occupational Safety and Health Administration (OSHA) to announce major violations by employers and distribute them to local media and related labor and trade organizations, a practice that they believe will enhance workplace safety.
The bill would revise Section 17 of the Occupational Safety and Health Act of 1970 and add a requirement that “[f]or each enforcement action against an employer in which the Secretary has assessed civil penalties in an amount greater than $60,000, or where multiple serous or repeated other-than-serious violations are present, the Secretary shall issue a notice to the public regarding the enforcement action not later than 7 days after the date on which the citation is issued.” The bill would require “distribution to relevant regional and local newspapers,” trade and labor organizations, and state and local governments in the region in which the employer is located.
Proponents of the bill claim that press releases result in greater regulatory compliance and reference a 2020 study that concluded that publicizing OSHA violations as part of broader enforcement policies benefited workers. During the Obama administration, OSHA increased the frequency and intensity of this tactic—“regulation by shaming.” Critics of this enforcement tactic claim that the press releases would often embellish a citation’s allegations, disparage employers, use harsh words not found in the citations, and feature derogatory quotations from OSHA officials. The Trump administration cut back on the harshness and frequency of this type of press releases, but they were still issued.
If the bill passes, will OSHA issue strictly factual press releases describing in neutral language the allegations of a citation or will the agency resort back to its use of harsh press releases?
That’s the million-dollar question. It is important to note that OSHA citations are only allegations and this bill has no counterpart for the publication of employer appeals or overturning of citations at a later date, thereby rehabilitating the reputational damage created by what the study calls “targeted information disclosure.”
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to monitor this bill and its progress in the U.S. Congress and will post updates on the Workplace Safety and Health blog as additional information becomes available.