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Government Affairs I

Many years ago I founded a plastic packaging company in my hometown of Hickory, N.C. Since that time, I have understood the effort it takes to keep a safe and healthy working environment for my employees. In this important yet difficult task, the last thing I needed was a government agency working against me. One of the reasons I ran for Congress is that I got fed up with Washington bureaucrats trying to tell me every little thing I needed to do to run my company.

I have always believed in the Occupational Safety and Health Administration's (OSHA) mission to "assure as far as possible a safe workplace for every man and woman in America." Unfortunately, OSHA's adversarial nature has enflamed the mistrust that already exists between business and government. OSHA's regulatory authority gives it ample means of promoting business safety, yet the agency too often resorts to punitive measures that do more harm than good.

When Republicans took the House majority in 1994, I was privileged to be named chairman of the Workforce Protections Subcommittee, which has OSHA jurisdiction. Caught between some Republican colleagues who wanted to see OSHA abolished altogether and others on the left who resisted any change at all, I sought to remove some of the reasons for OSHA's adversarial posture toward business, seeking to make the agency more like a teacher and less like the Gestapo.

Two of the proposals I authored became federal law. First, we allowed businesses to ask OSHA for advice without inviting prosecutorial proceedings. Second, we banned OSHA from using enforcement quotas or rewarding their own employees based on enforcement activities. In 2000, I helped lead the fight against OSHA's proposed ergonomics standards, which former President Clinton put into effect four days before he left the White House. Fortunately, Congress overturned OSHA's ergonomics rules, which were perhaps the most anti-business regulations I've ever seen.

While OSHA has vastly improved since I came to Congress, we still have a lot of work to do to reverse its legacy of mistrust. Today, my friend and colleague Rep. Charlie Norwood (R-GA) chairs the Workforce Protections Subcommittee. Chairman Norwood understands that technological advancements and the ever-changing workplace landscape make OSHA reforms necessary if we are to effectively promote American workplace safety. He recently introduced legislation to continue OSHA reform in limited, but common-sense, ways.

To that end, Chairman Norwood's proposal, The Occupational Safety and Health Fairness Act (H.R. 1583), is intended to ensure that OSHA enforcement efforts are undertaken in an evenhanded manner that promotes fairness for small business owners who make good faith efforts to comply with all health and safety laws. Specifically, the bill:

Gives the Occupational Safety and Health Review Commission additional flexibility to make exceptions to the arbitrary 15-day deadline for employers to file responses to OSHA citations when a small business inadvertently misses the deadline;

Increases the membership of the Occupational Safety and Health Review Commission (OSHRC) from three to five members to ensure that cases are reviewed in a timely fashion;

Awards attorney's fees and costs to small business owners that prevail in court when contesting OSHA citations, to ensure that the agency doesn't waste taxpayer resources on fruitless cases;

Ensures that OSHA penalties are appropriate for the particular circumstances of a case by making sure that employers are credited for good faith efforts and/or intervening circumstances beyond their control;

Restores independent review of citations issued by OSHA by clarifying that the Occupational Safety and Health Review Commission is an independent judicial entity that is given deference by courts reviewing OSHA issues; and

Clarifies what constitutes a "willful" violation of OSHA standards to ensure a more consistent application of the law because Congress failed to define this term when it originally enacted the law.

Essentially, this legislation seeks to repair OSHA's legacy of mistrust and replace it with trust. It would remedy some of the worst problems with OSHA that have been identified to constrain the prosecutorial zealousness current law enables it to have. For example, under current law an employer can only recover the fees and costs related to litigation under the Equal Access to Justice Act (EAJA). In order for a business to successfully appeal a legal decision made by OSHA, they have to show that OSHA's legal decisions were not "substantially justified." This vague language puts the burden on business and gives OSHA the benefit of the doubt. We should modify the law to give businesses ample opportunity to appeal an OSHA decision — and the burden should be on OSHA, not on the business. Otherwise, whose interest are we serving, other than OSHA's lawyers?

In addition to providing legal equality for businesses, OSHA reforms should also include consideration of the specific needs of small businesses. Chairman Norwood's bill would create a lower tier for recovery of these fees, with only very small employers (100 employees and net worth less that $1,500,000) eligible for recovery. Under this section, these very small employers could recover fees and costs if it prevails, regardless of whether the citation may have been "substantially justified." The rationale for this provision is to force OSHA to make better litigation decisions when it comes to very small employers (e.g., to refrain from cases if the chances for success are questionable). This provision would level the playing field because OSHA has a team of expert lawyers at its disposal, while an employer must retain expensive legal help. Often, employers choose to settle the case as the most cost-effective alternative.

The primary beneficiaries of H.R. 1583 are working men and women, not the employers who will make a commitment to voluntarily comply. When an employer steps forward to make a voluntary commitment to improve a workplace's safety, reduced workers' compensation and insurance costs often make it crystal clear that an investment in safety pays. The primary beneficiaries of an employer's commitment to take voluntary steps toward safety, with OSHA's help and cooperation, are employees and their families.

All things considered, H.R. 1583 is all about improving OSHA's performance and reducing the number of injuries and illnesses that occur each year. That was, and remains, the intended outcome of the Occupational Safety and Health Act of 1970.

Congressman Cass Ballenger was first elected to Congress in 1986 to represent the people of North Carolina's 10th District. Ballenger works to bring fiscal responsibility to the federal government by helping to eliminate excessive taxation on American families. He is a senior member of the House Committee on Education and the Workforce and a member of the House International Relations Committee.



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