December 3, 2021

Volume XI, Number 337

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December 03, 2021

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December 02, 2021

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December 01, 2021

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The Keeping Workers Safe Act Introduced: Will OSHA Violations Be Widely Disseminated?

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.

Proposed Requirements

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.

Key Takeaways

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 release, but they were still issued.

If the bill passes, will OSHA issue strictly factual press releases describing in a 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.”

© 2021, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 300
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About this Author

Karen Tynan, employment lawyer, Ogletree Deakins
Of Counsel

Karen Tynan is an of counsel attorney in the Sacramento office of Ogletree Deakins. Karen is originally from the state of Georgia, and after graduating with honors from the United States Merchant Marine Academy, she worked for Chevron Shipping Company for ten years – sailing as a ship's officer on oil tankers rising to the rank of Chief Officer with her Unlimited Master’s License as well as San Francisco Bay pilotage endorsement.  Karen was the highest ranking woman in the Chevron fleet when she left her seafaring life.  This maritime and petroleum experience is unique among employment...

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Jaslyn W. Johnson Labor & Employment Attorney Ogletree Deakins Law Firm Atlanta
Associate

*Currently licensed in California only.

Jaslyn represents and advises employers on workplace safety and health matters.  Her practice includes providing guidance on federal and state OSHA compliance, challenging citations, and litigating OSHA-related matters before federal and state agencies and courts.

Prior to joining Ogletree Deakins, Jaslyn served as an trial attorney in the Office of the Solicitor for the United States Department of Labor where she litigated cases on behalf of U.S. Department of Labor agencies,...

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