By Eric J. Conn and Beeta B. Lashkari

Based on the rhetoric from the 2016 presidential campaign trail, it was reasonable for Industry to anticipate OSHA enforcement under a Trump Administration to contract significantly from the aggressive enforcement model employed by Pres. Obama’s OSHA.  Informed by the enforcement philosophies of past Republican administrations, the expectation was that a Pres. Trump / Sec. Acosta OSHA would scale back enforcement, favor compliance assistance, slash OSHA’s budget and staff to limit enforcement, retire national and local emphasis enforcement programs, revise enforcement policies that inflate civil penalties, and otherwise retool its approach to ease the regulatory burden on employers.

The reality, however, is that OSHA during the Trump-era has not backed down from its enforcement mission.  Quite to the contrary, relevant enforcement data reveals enforcement creep.  With still no Trump-appointed Assistant Secretary of Labor for OSHA in place nearly two years into the Trump Administration, career OSHA staff have considerable influence over the direction OSHA is steering, and that is why little has changed, and why change may not be on the near horizon.

Here are some of the key ways that OSHA enforcement is hardly distinguishable two years into the Trump Administration from OSHA during the Obama Administration:

• OSHA’s FY19 budget is increasing by $5M from the end of the Obama-era (nearly $560M total)
• The number of employees at OSHA dipped at the start of the Trump Administration, but it has restored to roughly the same as the end of the Obama-era (approx. 2,000)

• The number of National and Local Emphasis Enforcement Programs remains essentially the same (approx. 150 Local/Regional Emphasis Programs and 9 National Emphasis Programs), including new or retooled NEPs for petroleum refineries and trenching
• The total number of fed OSHA inspections actually increased from 31,948 in FY2016 to 32,396 in FY2017 (the first year over year increase in the number of inspections in nearly a decade)

• OSHA’s civil penalty authority continues to increase — After an August 2016 78% “catch up” penalty increase, automatic annual OSHA penalty increases continue, despite Republican control of the White House and both houses of Congress
• Repeat violations (with 10x higher civil penalties) have continued to increase as a percentage of all citations issued by OSHA

• Enforcement press releases with inflammatory language about employers continue to issue
• Most surprisingly, the number of cases w/ total proposed penalties of $100K+ reached a record-high 218, increasing by 54 since 2016

However, the National Employment Law Project (NELP), which has been outspoken in its criticism of virtually every labor policy advanced by the Trump Administration, attempts to spin a different story about OSHA enforcement.  In June 2018, NELP published a white paper: “OSHA Enforcement Activity Declines Under the Trump Administration,” which posits that the “data is clear” in terms of a reduction in OSHA enforcement from the end of the Obama Administration into the Trump Administration.  But, NELP’s data is misleading, at best.  Here is one way the NELP paper tortures statistics to a false confession.

In FY 2016, OSHA began to use an Enforcement Weighting System (EWS) to encourage field offices to invest in more resource-intensive inspections.  OSHA explained its reasoning for the change as follows:

“In the past, we have used the number of inspections as the primary metric to measure enforcement activity. While this metric served a useful purpose, it penalized those field managers that took on more complex inspections that required a greater amount of CSHO [compliance safety and health officer] effort. For example, a process safety management (PSM) inspection of an oil refinery, which might take months, accounted for less weight under this system than a group of concurrent safety inspections at a construction site involving several employers. Our inspection metric that gave equal weight to all inspections may have discouraged some offices from committing necessary resources to fully complete more time-consuming, complex investigations.”

The EWS assigns different values, known as Enforcement Units (EUs), to different categories of inspections.  Thus, since FY 2016, OSHA has measured agency enforcement activity not only by the total number of site inspections, but also by the number of Enforcement Units.

The NELP paper compares EUs for FY 2017 (41,829) with the number of EUs for FY 2016 (42,900) to conclude OSHA enforcement is in decline under Pres. Trump.  Setting aside the marginal difference in EUs (approx. 2%), a closer look at the source data shows how flawed NELP’s analysis is.  For example, one major category of EU data is “significant cases.”  In 2016, OSHA defined “significant case” to mean an enforcement action with a penalty of at least $100,000, and those cases received the most EUs of any other category in OSHA’s EWS.  In 2017, however, OSHA redefined significant case to require a penalty of at least $180,000.  As a result of the higher threshold, the official number of significant cases dropped by 64 cases from 2016 to 2017, which effectively reduced the EU count by more than 500.

However, if you actually compare apples-to-apples from 2016 to 2017, and credit enforcement actions with penalties of $100K+ with the same EU weight across both years, the EUs in 2017 did not fall.  In fact, there were 61 more $100K+ enforcement actions in 2017 than in 2016 (not 64 fewer).  That 125 significant case difference would translate to 1,000 more EUs for 2017, which means enforcement activity has not dropped during the Trump Administration by that metric, or, as discussed above, by any other metric.