Department of Labor

A Status Update About OSHA’s Rulemaking For a Permanent COVID-19 Rule for Healthcare

Eric J. Conn Leave a comment

By Eric J. Conn and Beeta B. Lashkari

We wanted to provide a little status report about OSHA’s quiet rulemaking for a permanent COVID-19 Standard for Healthcare.  A few weeks ago, at the ABA WOSH Committee Midwinter meeting, multiple senior Department of Labor officials, including Doug Parker (Head of OSHA) and Seema Nanda (the Solicitor of Labor), were asked some pointed questions about the rulemaking.  They were all pretty tight-lipped and evasive.  We pointed out to the Solicitor of Labor that the very day on which we were talking about the rulemaking was the 90th day since OSHA had delivered the proposed final rule to the White House’s Office of Management Budget for a “final review.”  Pursuant to Executive Order 12866, a proposed final rule generally cannot remain at OMB for longer than 90 days unless the regulating agency (in this case, OSHA) requests an extension of the review period.  The Solicitor of Labor was asked if the Department of Labor or OSHA had already or was intending to seek such an extension, or whether the agency had decided to withdraw the proposed final rule in light of the changing circumstances of the pandemic and President Biden’s withdrawal of the emergency declaration.  She sidestepped the question, stating that OMB can extend the review period at least another 30 days without any formal action by the Department of Labor, but would not say what OMB’s or OSHA’s plans were for the rule.

The one-time, automatic 30-day extension of OMB’s 90-day review period is consistent with our understanding too.  See the excerpt below from OMB OIRA FAQs: Continue reading →

OSHA’s Vaccinate-or-Test ETS in the Hands of the Supreme Court

Eric J. Conn 1 Comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

As we shared over the weekend, at 6:50 PM on Friday night (December 17th), a three-judge panel at the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccinate-or-Test ETS that had been issued in early November by the Fifth Circuit.  That same night, several of the petitioners in the legal challenges to the ETS appealed the Sixth Circuit’s decision to the Supreme Court.

As we have been discussing for a while, the decision about the Stay of the ETS (and ultimately the legality of the ETS) was destined for the Supreme Court, and the Court, at least on the issue of the TRO/Stay, could choose to address the question either by:

  • the so-called “shadow docket,” with no briefing and a decision perhaps issued by a single Justice; or
  • more conventional proceedings, with briefing and oral argument, and likely a decision by all nine Justices.

Each of the nine Justices on the US Supreme Court is assigned to oversee one or more of the regional US courts of appeals.  Justice Kavanaugh is the justice assigned to the Sixth Circuit, to oversee requests for emergency review or shadow docket consideration from cases before the Sixth Circuit.  Justice Kavanaugh is part of what is becoming something of a triad of swing voters on the Court, along with justice Coney Barrett and Chief justice Roberts.

On Monday, Justice Kavanaugh issued an Order to the Department of Labor to submit briefing in response to the emergency petitions with a deadline of 4 PM on Thursday, December 30th.  The Order does not provide for any additional briefing by petitioners or friends of the court.  Then, just a few hours ago, the Court issued another Order setting the case for oral argument a week later, on January 7, 2022.

We now have a clearer picture of Continue reading →

[BREAKING] Sixth Circuit Rescinds Stay of OSHA’s Vaccinate-or-Test Emergency Temporary Standard

Eric J. Conn 6 Comments

By Conn Maciel Carey’s COVID-19 Task Force

We apologize for interrupting what we hoped be a quiet, pre-holiday weekend for everyone, but we have very important and time sensitive news to share about the status of OSHA’s Vaccination, Testing, and Face Coverings Emergency Temporary Standard (ETS).  It was a very busy Friday night for everyone in the OSHA world.  In a remarkable turn of events, at 6:50 PM yesterday evening (December 17th), the US Court of Appeals for the Sixth Circuit dissolved the nationwide stay of OSHA’s Vaccination ETS that had been issued by the Fifth Circuit in November.

The Department of Labor and OSHA then immediately issued a statement that OSHA was moving forward with implementation and enforcement of the ETS, but also provided some enforcement relief for companies able to demonstrate good faith efforts to comply.  Then, within an hour of the Sixth Circuit decision being released, numerous parties filed an emergency application and motion with the US Supreme Court requesting the Supreme Court reissue a stay of the ETS.  And then, finally, shortly after midnight (approximately 1 AM last night), South Carolina along with 26 other State Attorneys General and a host of private entities also filed an emergency application for a stay.  What a night.

We briefly summarize the Sixth Circuit’s decision below and explain the lay of the land as it stands at this moment, what might occur next and, most importantly, what this means for employers across the nation.  Bottom line is that events are moving fast, but as we said a few weeks ago, do not put a fork in the ETS, and continue to prepare to come into compliance with it.  It is alive and well, at least until we hear from the Supreme Court.

Sixth Circuit Decision 

In a 2-1 opinion written by Obama-appointee Judge Jane Stranch and, notably, joined by Bush appointee Judge Julia Gibbons, the Sixth Circuit rescinded the nationwide stay of OSHA’s ETS that had been issued by the Fifth Circuit first an administrative stay on November 6th and then as a TRO on November 12th. The three-judge panel that heard the case consisted of one Obama appointee, one Bush (W.) appointee, and one Trump appointee.  Judge Gibbons (the Bush appointee) joined Judge Stranch, but she also wrote a separate concurring opinion.  Trump-appointee Judge Joan Larsen, who had purportedly been on a Trump’s short-list of potential nominees to the Supreme Court, dissented.

In a nutshell, the Court’s rationale for lifting the stay is that Continue reading →

State COVID-19 Regulations Multiply as Fed. OSHA Declines to Adopt General Industry COVID-19 Regulations

Daniel C. Deacon Leave a comment

By Conn Maciel Carey’s COVID-19 Task Force

Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry.  Shape,3d,Of,State,Of,New,York,Map,With,FlagJust yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 ETS is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases.

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act. Continue reading →

Who is the New DOL Leadership Team Impacting OSHA Law? [Webinar Recording]

Kate M. McMahon Leave a comment

On March 20, 2018, Kate McMahon and Amanda Strainis-Walker, of the national OSHA Practice Group at Conn Maciel Carey, presented a webinar: “Who is the New DOL Leadership Team Impacting OSH Law?”

Pres. Obama’s Secretary of Labor, Assistant Secretary of Labor for OSHA, and the rest of his political Leadership Team at the Department of Labor turned over the keys to the Trump Administration.  The Trump Administration has now installed, or at least announced, its own OSHA and OSHRC Leadership Team, and the backgrounds and regulatory philosophies between the outgoing and new decision makers and policymakers could not be more different.

During this webinar, participants learned about the new appointees who have taken (or should soon take) the reins at OSHA, and how this new Leadership Team will affect OSHA enforcement and rulemaking.  We also reviewed other personnel changes at OSHA and OSHRC that will impact the regulatory landscape for employers.

Click here to register to view and listen to a recording of the webinar. Continue reading →

Joint and Multi-Employer, Independent Contractor, and Temp Worker Employment Law and OSHA Issues [Webinar Recording]

Eric J. Conn Leave a comment

On July 11, 2017 attorneys from Conn Maciel Carey’s national Labor & Employment Practice and OSHA Practice, delivered a webinar regarding “Joint and Multi-Employer, Independent Contractor, and Temp Worker Employment Law and OSHA Issues.”

Employers’ perceptions about their legal responsibilities for certain workers is not always reality.  Although an employer may classify workers as temporary workers or independent contractors, that does not mean the Department of Labor takes the same view.  At the tail end of the Obama Administration, DOL was vocal about its belief that most workers should be treated as employees, insinuating that in most cases, employers will be accountable for the specific obligations of an employer-employee relationship.  The Trump Administration is moving in the other direction, but a lot of questions remain unanswered or muddled.  DOL has also been cracking down on employee misclassification and division of responsibility among multiple employers. Additionally, employers continue to have certain safety and health related obligations and potential OSHA liability depending on their role at multi-employer worksites or in joint employer situations.

It is essential for employers to carefully evaluate the employment relationship and their own individual function in the multi-employer context.

This webinar covered:

  • Criteria used to evaluate the employer-employee relationship
  • Employers roles on a multi-employer worksite and the specific obligations associated with each role
  • Guidance on how to clearly establish an independent contractor relationship
  • How to lawfully and effectively manage temporary workers at your workplace

Here is a link to a recording of the webinar. Continue reading →

Unions Leverage OSHA and other Dept. of Labor Enforcement as an Organizing Tactic

Lindsay A. DiSalvo Leave a comment

By Kara M. Maciel, Eric J. Conn & Lindsay A. DiSalvo

As the private sector continues to see a decline in labor union membership among employees, labor unions are struggling to remain relevant and recruit new, dues-paying members.  Traditionally, when a labor union begins an organizing campaign at a workplace, the federal agency at the center of the process is the National Labor Relations Board (“NLRB”).  The NLRB’s purpose is to protect the rights of workers to organize and to freely choose whether or not to be represented by a labor union.  Indeed, the NLRB is an intrinsic part of the election process, and the NLRB may also become involved in a union organizing campaign if, for instance, the union asserts that the employer has committed an unfair labor practice.

However, unions are more and more often engaging with or depending on the regulations of other federal agencies as a tactic to gain leverage during organizing campaigns.  There are numerous ways a union may influence the outcome of an organizing campaign by using federal agencies, such as the Occupational Safety and Health Administration (“OSHA”) or the Wage and Hour Division (“WHD”) of the Department of Labor (“DOL”), to persuade employees to embrace the union, or to put pressure on employers to concede to union representation.

Taking OSHA as an example, an on-site workplace safety inspection, or even just the threat of an inspection, can impact an organizing campaign in a manner favorable for the union.  The threat of making an OSHA complaint or inviting OSHA into the workplace to conduct an inspection can put pressure on an employer to stand-down against a union’s organizing efforts, even if it does not believe a particular violative condition or safety hazard exists.  A safety complaint could spark an OSHA inspection and, with 75% of all OSHA inspections resulting in the issuance of at least one citation, the chances are high that the employer would have an OSHA enforcement action on its hands. Continue reading →

Finally We Have a Labor Secretary – Alexander Acosta

Lindsay A. DiSalvo Leave a comment

By Lindsay A. Disalvo

On Thursday, April 27, 2017, Alexander Acosta was confirmed by the United States Senate to serve as the first Secretary of Labor in the Trump Administration.  As we reported in an earlier article when Acosta was first nominated by Pres. Trump, in this role, Sec. Acosta will oversee the federal department that develops and interprets labor regulations and investigates alleged violations of minimum wage, overtime, and workplace safety laws and regulations.

The Senate approved Acosta by a vote of 60-38, meaning there was some cross-party support, despite the party-line vote on Acosta’s nomination by the Senate Health, Education, Labor and Pensions Committee.  This marks the fourth time Acosta has been confirmed by the Senate, including his prior positions in the Bush Administration.

Specifically, during the Bush Administration, Acosta served as a member of the National Labor Relations Board for approximately eight months.  In 2003, President Bush appointed him to Head the Civil Rights Division at the U.S. Department of Justice’s , a position which he held for about two years, before being appointed to serve as the United States Attorney for the Southern District of Florida.  Most recently, Acosta was the Dean of Florida International University’s School of Law.

At this point, it is still uncertain what jurisprudence Acosta will bring to the role of Secretary of Labor.  The Trump Administration and its initial Secretary of Labor nominee, Andrew Puzder, who withdrew from consideration back in February, have taken aggressive stands on deregulation.  However, Acosta’s positions on regulation and enforcement have not been as clearly expressed, and his prior experience as a prosecutor may suggest a more measured approach in managing the enforcement responsibilities of the various agencies under his direction.  We will have a better idea of Acosta’s approach soon, however, because there are a number of time sensitive issues that will need his prompt attention upon being sworn in.

In particular, we expect that one immediate priority for Acosta will be Continue reading →

Trump Proposes $2.5B Cut to Dept. of Labor’s Budget and Elimination of Chemical Safety Board

Eric J. Conn 4 Comments

By Kara M. Maciel and Eric J. Conn

The Trump Administration submitted a blueprint budget for 2018 to Congress proposing $2.5 Billion in cuts to the U.S. Department of Labor’s (“DOL”) operating budget.  The President’s proposed budget expressly calls for reduced funding for grant programs, job training programs for seniors and disadvantaged youth, and support for international labor efforts.  It also proposes to entirely defund and eliminate the U.S. Chemical Safety and Hazard Investigation Board (“CSB”) – an independent, federal, non-enforcement agency that investigates chemical accidents at fixed facilities.  The budget plan also purports to shift more funding responsibility to the states with labor related programs.  Finally, although less explicit, the budget blueprint appears to deliver on promises from Trump’s campaign trail that rulemaking and regulatory enforcement efforts under the myriad laws and regulations enforced by the sub-agencies, such as the Wage and Hour Division and OSHA would be slashed.

These proposed budget cuts at DOL and other agencies are all part of a plan to offset the White House’s intent to increase defense and security spending by $54 billion.  Overall, Trump requested $1.065 Trillion in total discretionary spending, with $603 billion going to Defense.

The proposal would shrink DOL’s budget to $9.6 Billion – down 21% from the $12.2 Billion budget for 2017. Trump’s planned reductions announced on March 16, 2017 – while not really surprising in the context of his view toward federal spending on non-defense agencies – would have a seismic impact on DOL’s ability to carry out both policy initiatives under former President Obama as well as many of the Department’s longstanding programs.

The business community welcomes Trump’s effort to rein in what has been viewed as an intrusive, enforcement-heavy Labor Department, but we caution not to count chickens yet. These proposed cuts will undergo heavy scrutiny by Congress before any budget is finalized. The President’s spending plan is only the first step in months of negotiations between the White House and both houses (and parties) in Congress. Pres. Trump will put forward a more detailed spending proposal in May, and various legislative committees will scrutinize his requests, calling on Cabinet Secretaries, Agency Heads, and others in the Administration to testify about or otherwise explain their spending needs and requests.

Key Takeaways from Trump’s Budget Blueprint

While the administration provided estimates for some of the proposed cuts, it did not specify where the majority of the budget cuts would come from.  What we do know is that the proposed budget would Continue reading →

Pres. Trump’s Plan B for Secretary of Labor Nominee – Alex Acosta

Eric J. Conn 1 Comment

By Jordan B. Schwartz

President Trump originally chose Andrew Puzder, the CEO of CKE Holdings, the parent company of Carl’s Jr. and Hardee’s, as his nominee for Secretary of Labor.Department of Labor  However, on February 15, 2017, one day prior to his much-delayed confirmation hearing, Mr. Puzder withdrew his name from consideration amidst reports that he would not receive the required Senate votes necessary for confirmation.  Mr. Puzder’s nomination was knocked off track by allegations that he failed to pay workers overtime pay, hired an undocumented worker in his home, condoned sexual harassment, and opposed legislative efforts to address those problems.  The next day, President Trump officially tapped former U.S. Attorney Alex Acosta for the position.

If confirmed as Labor Secretary, Mr. Acosta will oversee the federal apparatus that investigates violations of minimum wage, overtime and workplace safety laws and regulations.  Mr. Acosta would also be the first Hispanic member of President Trump’s cabinet.

Mr. Acosta has a strong public service background.  After graduating from Harvard Law School, he clerked for Judge (now Supreme Court Justice) Samuel Alito on the Third Circuit Court of Appeals.  He has also served as a member of the National Labor Relations Board, head of the U.S. Department of Justice’s Civil Rights Division (both of which he was appointed to by President George W. Bush), and U.S. Attorney for the Southern District of Florida.  Most recently, Mr. Acosta served as

Continue reading →

FAR Council’s and Dept. of Labor’s Contractor “Blacklisting” Rule – Finalized and Promptly Stayed

Eric J. Conn Leave a comment

By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice

Texas District Court Enjoins the Administration from Enforcing the Federal Government Contractor “Blacklisting” Provisions of the Federal Acquisition Regulatory Council’s New Final “Fair Pay and Safe Workplaces” Rule.

On August 25, 2016, the Obama Administration, through the Federal Acquisition Regulatory (FAR) Council and in conjunction with the U.S. Department of Labor, promulgated the final Fair Pay and Safe Workplaces regulation and parallel guidance from the Labor Department, which collectively federal contractors have unaffectionately dubbed the “Blacklisting Rule.”  far-article-1The cornerstone provisions of the final rule establish expansive new reporting obligations for contractors bidding on executive branch contracts with an estimated value exceeding $500,000. These contractors, along with subcontractors whose portions of the overall contract meet the $500,000 threshold contract value, must disclose all confirmed and alleged violations issued under 14 labor laws, including alleged OSHA citations, within the three years prior to a prospective contractor’s bid submission, regardless of the status of the citation or whether the citation has yet been upheld in a judicial or administrative review process afforded employers.  To be clear, under the final rule, all OSHA citations must be reported, even minor paperwork citations characterized as “OTS” (“other-than-serious”).

The final rule change the manner in which the rule applies to subcontractors.  Unlike the proposed rule, the final rule requires covered subcontractors to disclose violations directly to the Department of Labor, which will conduct a “responsibility determination” and return it to the subcontractor, who in turn will then be required to deliver it to the prime contractor.  The final rule also pushed back the mandatory disclosure date for subcontractors to October 25, 2017, a year after the disclosure requirements were set to begin for prime contractors.

The disclosure requirements for all contractors apply equally to related state labor laws, which sweeps in all citations issued under the 27 federal OSHA-approved state OSH programs administered by state occupational safety and health agencies such as CAL/OSHA.  Whichever contractor is awarded a covered contract must also disclose any old and new OSHA or other alleged labor law violation (referred to in the regulation as “administrative merits determinations”) during regular, bi-annual reports throughout the life of the contract.

Rule Challenged and Preliminary Injunction Granted

Barely before contractors had time to read the regulation and attendant DOL guidance, however, and prior to its first effective date of October 25th, a group of industry trade associations filed a legal challenge in a Texas federal district court to the rule and requested the court grant emergency relief by Continue reading →

Employment Law and OSHA Concerns with Temps, Contractors, and Joint- and Multi- Employer Sites

Lindsay A. DiSalvo 3 Comments

By Eric J. Conn, Jordan B. Schwartz, and Lindsay A. Smith

Employers must beware as the U.S. Department of Labor (“DOL”) cracks down on what it perceives as rampant misclassifying employees as contractors and shirking other responsibilities, such as safety training, because a worker is supplied by another employer.  With more and more unique employment relationships and multi-employer worksites, it is crucial to understand the complexities of how the DOL and its various enforcement agencies define the employment relationship and/or assign liability in these contexts.

It has long been a priority of the Obama Administration to treat more workers as actual employees of host employers in order to provide them with a litany of labor protections and benefits, even when these workers are not hired directly, may not stay long, and may not even consider themselves to be employees.  This enforcement philosophy affects businesses in numerous areas – such as wage and hour law and OSHA compliance – even when employers thought staffing through an agency or on an independent contract basis relieved them of many of these DOL burdens and liabilities.  Not only does this increase the cost of many temporary, contract and multi-employer arrangements, it also puts employers at great risk of costly DOL enforcement actions if they do not understand when they have the responsibility (as opposed to another employer) to satisfy certain terms of labor law compliance.

First and foremost to keep in mind, although an employer may classify a worker as an independent contractor or as a non-employee temporary worker, and their maybe contract documents that express that classification, that does not mean DOL takes the same view.  Indeed, as DOL sees it, most workers should be treated as employees.  Also, employers may have certain employment law and OSHA-related obligations and potential liability even for non-employees depending on the employers’ roles at multi-employer worksites or in joint-employer situations.

New ‘Joint Employer’ Standard

Outsourcing to a temporary or contract worker can be a great way for a company to take care of some tasks and may make more sense for the business, rather than hiring full-time workers to fill those gaps.  However, if the DOL finds under one of various legal tests that the business is a joint-employer of that worker with another company, then numerous legal obligations kick in vis-a-vis these shared employees (such as collective bargaining and mandatory dispute resolution) as well as significant exposure for your organization under various labor laws.

In the past few years, both state and federal agencies have been expanding the joint-employer definition. Continue reading →

Employment and OSHA Issues related to Multi- and Joint-Employers, Contractors, and Temps [Webinar Recording]

Lindsay A. DiSalvo Leave a comment

On August 16, 2016, Jordan B. Schwartz, Eric J. Conn, and Lindsay A. Smith, of Conn Maciel Carey’s national Labor and Employment Practice and OSHA Practice, presented a webinar regarding Joint Employer, Multi-Employer, Contractor and Temp Employment Law and OSHA issues.

Employers’ perceptions about their legal responsibilities for certain workers is not always reality.  Although an employer may classify a worker as a temporary worker or independent contractor, that does not mean the Department of Labor takes the same view.  Recently, DOL has been vocal about its belief that most workers should be treated as employees, insinuating that in a majority of cases, it would hold employers accountable for the specific obligations of an employer-employee relationship.  Additionally, employers may have certain employment law and OSHA related obligations and potential liability depending on their role at multi-employer worksites or in joint employer situations.

Overall, DOL has been cracking down on employee misclassification and division of responsibility among multiple employers; thus, it is essential for employers to carefully evaluate the employment relationship and their own individual function at in the multi-employer context.

Participants in the webinar learned: Continue reading →

New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal Prosecutions

Eric J. Conn Leave a comment

On April 1st, the Washington Legal Foundation (WLF) published a Legal Backgrounder prepared by Eric J. Conn entitled: “New DOJ and DOL Reliance on Environmental Laws Lowers Bar for Workplace-Safety Criminal Prosecutions.”

The Legal Backgrounder reviewed the history of OSH Act criminal cases and a new Department of Justice and Department of Labor joint initiative designed to increase the frequency of both criminal prosecutions for workplace safety WLF Article Imageviolations generally, and to pursue more criminal charges against individual managers rather than just corporate defendants. The article explains:

“A key change in DOJ’s strategy for ‘upping the ante’ in workplace-safety criminal enforcement is the decision to transfer responsibility for prosecuting worker-safety violations from the Justice Department Criminal Division’s Fraud Section to the Environmental Crimes Section (ECS) of the Environment and Natural Resources Division.”

The article concluded that:

“the new Department of Justice worker-endangerment initiative will result in a renewed and more concerted effort to pursue criminal charges under environmental statutes where workers’ health and safety is allegedly being threatened. Based on this rekindled commitment by DOL and DOJ, employers should expect government officials investigating workplace-safety violations to probe for possible criminal violations—not only under the OSH Act where there has been a fatality, but under the myriad of environmental statutes and Title 18’s federal criminal code.”

Here is a link to the full article.

OSHA Rule in FAR Clothing: The Government Contractor “Blacklisting” Rule

Eric J. Conn 4 Comments

By Eric J. Conn

Following President Obama’s 2014 “Fair Pay and Safe Workplaces” Executive Order (EO 13673) — commonly referred to as the “Blacklisting” Executive Order by government contractors — this Spring, the Federal Acquisition Regulatory (FAR) Council in conjunction with the Department of Labor (DOL) issued proposed regulations and guidance implementing EO 13673. The companion proposals establish expansive new reporting obligations requiring disclosure of any OSHA citation issued — still just allegations — FAR 1within the three years prior to bid submission, as well disclosures of all other “administrative merits determinations” issued under 13 other labor laws. The proposals then require regular bi-annual reporting of the same data throughout the life of the contract.

Although the proposals are purportedly designed to identify and prevent “irresponsible” companies from obtaining federal contracts, because they cast such a broad net, based on mere allegations of violations, the rule’s likely effect will be to significantly intensify the scrutiny to which contractors will likely be subjected (and the costs they will need to bear to comply with the rule) without accomplishing the President’s objectives of ferreting out irresponsible contractors.

Specifically, the proposed regulations would require contractors bidding on executive branch contracts with an estimated value exceeding $500,000 to disclose any OSHA citation, regardless of the status of the citation or whether the citation has yet been upheld in the administrative review process afforded employers. All OSHA citations must be reported under the proposals, even citations characterized as “OTS,” or “other-than-serious,” the characterization OSHA applies to minor paperwork violations. The disclosure requirements apply equally to citations issued under the 27 state plan programs administered by state occupational safety and health agencies such as CAL/OSHA.

In addition to the disclosures contractors must make, prime contractors also must collect the same information from every subcontractor who has a contract or bid exceeding the $500,000 threshold (with the exception of subcontractors whose contract is for commercial-off-the-shelf (COTS) goods or services).

The DOL guidance indicates that contracting agencies’ “responsibility” determinations will consider most heavily only those OSHA citations (or other labor law violations) determined to be “serious, willful, repeated, or pervasive.” While this limitation may sound good, applied in the OSHA context, it provides cold comfort to responsible contractors. A review of 2009 – 2013 OSHA enforcement data shows that the vast majority of citations issued — upwards of 85 percent — are initially characterized as serious, repeat, or willful. This means that Continue reading →