Workplace Prof Blog

Supreme Court Remands FELA Verdict on Fear of Future Cancer Instruction

This morning, the Supreme Court issued a per curiam decision in CSX Transportation, Inc. v. Hensley, a case under the Federal Employers' Liability Act (FELA). The plaintiff, a railroad employee, had been exposed to a toxic solvent that caused him brain damage, making him unable to work. He was also exposed to asbestos, which caused asbestosis, a non-cancerous scarring of the lungs that for 1 in 10 sufferers, leads to mesothelioma, a fatal cancer of the lining of the lung or abdominal cavity. Hensley sought damages for both diseases and for his fear of developing cancer in the future. A jury awarded him $5 million.

In a per curiam opinion, the Court reversed the judgment of the trial court and remanded the case. The Court held that it had made clear in Norfolk and Western Rail Co. v. Ayers that damages were available for fear of future cancer, but only if the plaintiff proved that his fear was genuine and serious. A plaintiff did not have to prove any physical manifestations of that fear. In this case, the railroad had requested a couple of jury instructions about the need to prove that the fear was genuine and serious and about what could be used to prove that. The trial court had not allowed those instructions, and the Supreme Court ruled that this was clear error.

Justices Stevens and Gisnburg dissented. Justice Stevens noted that the $5 million was a general verdict, and so it was impossible to say what portion of it represented the award for fear of future cancer. Stevens further cast doubt on the necessity of the instruction based on the language in Ayers. In that case, the Court had said that such an instruction was available, but not that it was required; at least that's what he believed it meant when he signed on to the opinion.

Justice Ginsburg stated that the particular instructions that this defendant requested went far beyond what Ayers suggested. All that should be necessary is a "plain and simple instruction: 'It is incumbent upon [the plaintiff] to prove that his alleged fear [of cancer] is genuine and serious." The railroad's requested instructions were detailed and listed a number of physical manifestations as ways that the plaintiff could carry its burden. That instruction was not appropriate under Ayers.

MM

What Every Office Needs

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Here's how employees at the Electric Works building in Sheffield, England get from the third to the ground floors.  But it turns out the slide was paid for by taxpayers via a regional development fund, at a cost of $137,000.  On top of that, the occupancy rate of the new building is only 20%.  No queues!

Photo and story courtesy MailOnline, via PJH Law.

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New Study on Impact of Ergonomics Rules

The current issue of the American Journal of Industrial Medicine has an article on the importance of ergonomics standards. The article, written by Michael Foley, Barbara Silverstein, Nayag Polissar, and Blazej Neradilek, is entitled, Impact of Implementing the Washington State Ergonomics Rule on Employer Reported Risk Factors and Hazard Reduction Activity. The study focuses on a rule adopted in the state of Washington in 2000, which focused on finding and fixing hazards before they caused work-related musculoskeletal disorders. The rule was to be phased in over time to apply to the largest and most hazardous workplaces first. In 2003, before the rule became applicable to all workplaces, it was repealed by an industry-financed voter initiative. The study looked at injury rates before the rule took effect, during its operation, and after the repeal. The study found that the rule was effective to protect workers from musculoskeletal injuries and saved employers money, but it also found that companies were unlikely to implement such measures on their own--or maintain them once initiated--without a plausible threat of enforcement.

OSHA experimented with promulgating ergonomics standards a number of years ago, and it continues to work on a four-pronged approach:
1. developing industry or task-specific guidelines for a few industries;
2. conducting inspections for ergonomic hazards and issuing citations under the General Duty Clause where appropriate;
3. creating a National Advisory Committee to research the issue and identify gaps in research on ergonomics in the workplace;
4. and engaging in outreach and assistance to help small businesses develop better ergonomic practices.

This study suggests that as a matter of public policy and even economic sense at the firm level, encouragement may not be enough to promote good practices.

MM

Punitive Damages Available under OSHA Train Rules

Apparently there has been a revision to 49 U.S.C. §20109, dealing with employee protections under the Federal Rail Safety Act (FRSA). The provision provides protections to whistle blowers who provide information about unsafe conditions on the railroads.  Affected employees may bring claims to OSHA.

One of the first cases happened in Seattle (via the Train Law Blog):

Last month, the first reported Order imposing punitive damages against a railroad for violating the FRSA anti-retaliation law came to light. It concerned retaliatory conduct by Amtrak in Seattle, but the OSHA Whistleblower Office Press Release announcing the Order provided few details about what actually happened.

Well, my curiosity was piqued. I managed to get my hands on OSHA's Findings and Final Investigation Report, and the details are very telling.

The employee was working in the King Street Station in Seattle. In the rail yard north of Holgate Street she stepped off a platform onto a parking area that was not properly maintained (potholes, uneven ground, rocks) and twisted her left ankle on a rock. She reported the injury to her supervisor, who saw her swollen ankle, and she booked off injured. Amtrak immediately charged her with violating the usual vague all-encompassing "safety" rules (including Amtrak's "Standards of Excellence," whatever that is), and held a disciplinary hearing. Initially she was fired, but that was reduced to a 30 day suspension without pay.

The employee filed a FRSA retaliation complaint, and OSHA Whistleblower's office investigated. OSHA found Amtrak's managers had "a mind-set that employees are always at fault when they are injured on the job" and "engaged in intimidation by assessing severe punishment against employees who report injuries, which sends a chilling effect to all employees not to report injuries for fear of losing their employment." OSHA ordered Amtrak: to pay the employee her back wages along with punitive damages; to expunge the discipline from her file; and to not retaliate or discriminate against her in any manner in the future.

Interestingly, the Train Law Blog reports that it is fairly common for injuries of the job for railroad workers to turn into disciplinary actions against them:  The Blog notes that, "the fact punitive damages were ordered for such a common situation bodes ill for railroads like Metro North, the LIRR, NJ Transit, MBCR, Amtrak, and CSX where the management culture encourages such knee jerk disciplinary retaliation against employees who report injuries."

Hat Tip:  Joseph Coleman

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Resurgence in Black Lung Cases

Carole Bass writes to tell us of an apparent resurgence in black lung disease among U.S. coal miners.  Though the cause is not certain, a couple of theories have been proposed.  One is that miners are working more hours than they did 20 years ago -- 12- and 16-hour shifts, and 60-hour weeks.  The second is that most of the coal that's left in Appalachia is in "thin seams" -- 28 inches or less -- and mining thin-seam coal requires taking up a lot of rock with the coal.  That rock contains silica, which can be worse for a miner's lungs than coal. 

For more, see Carole Bass, Why Is Black Lung Back?

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Cintas Settles OSHA Charge

A year and a half ago, we reported that OSHA had fined Cintas (the country's largest uniform supplier) $2.78M for safety violations in its commercial wash rooms.  Those violations had led to the death of an Oklahoma worker who fell into an industrial dryer.  Cintas challenged the fine, but Thursday settled with OSHA for $2.76M and a promise to make safety improvements.  Here's the OSHA press release.  But UNITE-HERE, which is trying to organize Cintas workers, calls the settlement "nearly toothless."  Today's Cincinnati Enquirer reports:

"Cintas has been cited for these problems time and again," said Eric Frumin, health and safety director for the union UNITE-HERE. "That's why OSHA should be strictly monitoring the company, but there are no plans for follow-up inspections in the agreement."

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One Last Fight Over Workplace Safety Rules

He may be the lamest of all lame ducks, but he and his administration are not going out without trying to make it harder for workplaces to regulate toxic substances.

From the New York Times:

The Labor Department is racing to complete a new rule, strenuously opposed by President-elect Barack Obama, that would make it much harder for the government to regulate toxic substances and hazardous chemicals to which workers are exposed on the job.

The rule, which has strong support from business groups, says that in assessing the risk from a particular substance, federal agencies should gather and analyze “industry-by-industry evidence” of employees’ exposure to it during their working lives. The proposal would, in many cases, add a step to the lengthy process of developing standards to protect workers’ health.

Public health officials and labor unions said the rule would delay needed protections for workers, resulting in additional deaths and illnesses.

I expect and hope that any such rule would be repealed in the Obama administration, but if there was any doubt in anyone's mind, the Bush Administration will go down in history as one of the most anti-labor administrations in the history of this country (Reagan would be proud). 

Somewhat interesting that Bush started his first term by destroying the ergonomic standards and now is attempting to give his business allies one last gift on the workplace safety front.

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Former Censored Fim: The Story of OSHA

Fascinating.  Via the folks at the Institute for Workplace Studies at Cornell IR:

[These are] 3 films created in the ending days of the Carter Administration, then censored by the incoming young buck appointed by Ronald Reagan to systematically neuter the organization.

The Story of OSHA (1980)
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This film tells workers how OSHA was set up to stem the tide of disease, injury, and death, and what their rights are under the law. Explains how NIOSH conducts tests, how standards are set, and how OSHA investigates complaints. Produced and distributed by OSHA in 1980. Then in 1981, the incoming head of OSHA Thorne Auchter recalled and destroyed most copies. A few copies were kept alive by renegade union officials who refused to return their copies. The penalty for being discovered in possession of one of these films was loosing all OSHA funding for their safety and health programs.

This film was preserved through the years through the efforts of Mark Catlin, who made this and other censored OSHA films available for digitizing.

Gee, imagine that.  Reagan was against allowing workplace safety and health initiatives.

In any event, I plan to show this in my employment law class to help explain the realities of workplace injuries and illnesses.  And who knows? Maybe in a new presidential administration, the federal government will actually carry out OSHA's purposes and pass some new regulations.

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Gregory on Unprotected Injured Employees

David Gregory (St. John's) has just posted on SSRN his article Unsafe Workplaces, Injured Employees, and the Bizarre Bifurcation of Section 7 of the National Labor Relations Act.  Here's the abstract:

A particularly pernicious constriction of the scope of protection available under Section 7 of the National Labor Relations Act has occurred with respect to injured employees. Employees who complain about workplace safety and health issues are within the ambit of Section 7, protected against employer retaliation for having complained. Meanwhile, however, employees injured by those same workplace safety and health hazards, and who consequently exercise their state workers compensation law statutory rights to claim workers compensation monetary and medical care benefits, are not protected by Section 7. If the employer retaliates against the injured employee for claiming state workers compensation benefits, the employee's protections against such retaliation are under state workers compensation law, but not under the federal National Labor Relations Act. This undue constriction of Section 7's umbrella has fractured the practical and jurisprudential coherence of Section 7. Furthermore, this bizarre bifurcation has spawned atomistic progeny wholly antithetical to the spirit and purpose of Section 7. Perhaps most egregiously, the National Labor Relations Board now considers employees filing individual sexual harassment complaints with the United States Equal Employment Opportunity Commission to have acted individually, and thus not within Section 7's concerted, protected activities. This essay will critically analyze the genesis and evolution (mutation) of this bizarre bifurcation of Section 7 in this context, and will propose avenues for rectification.

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D.C. Cir. on Attorney Fees in OSHA Violation Case

The Legal Times (subscription required) discusses the case of Fabi Construction Co., Inc. v. Secretary of Labor (D.C. Cir. 08/29/2008), involving the issuing of attorney's fees in an OSHA violation case.

In an opinion decided without argument, the D.C. Circuit reviewed a petition for award of attorney fees and costs incurred in connection with the defense of citations issued by the secretary of labor. The petitioners were involved in the construction of parking garage and were cited for six violations of the Occupational Safety and Health Act when several levels of the garage collapsed, killing four workers and injuring numerous others. Two of the violations were withdrawn by the secretary prior to litigation; several of the litigated violations were affirmed, and the rest were vacated. The court held that the petitioners were eligible to receive attorney fees as a prevailing party under the Equal Access to Justice Act, but substantially reduced the petitioners' claim because of various defects in the bills submitted by the petitioners in support of the claim and based on the court's finding that some of the secretary's positions in the litigation were substantially justified.

Does anyone know why a case like this, with some issue surrounding prevailing party status, was not orally argued in front of the D.C. Cir? 

And to the extent that attorney fees are discretionary under the Equal Access to Justice Act, doesn't the fact that some of the citations were affirmed make this a less sympathetic case for attorney fees?

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The Definition of Dead on Arrival (DOA)

Courtesy of the Daily Labor Report this morning:

Despite earlier objections to a draft proposal from Democratic leaders in Congress and others, the Labor Department is issuing a proposed rule that would change the methods used to measure workplace exposures to toxic substances and hazardous chemicals, according to a notice of proposed rulemaking scheduled for publication in the Federal Register.

DOL says it would require that before agencies can issue rulemaking dealing with health issues, they must first solicit input on studies, scientific information, and data on frequency, intensity, and duration of worker exposure. DOL agencies would be required to publish an advanced notice of proposed rulemaking soliciting public information when developing risk assessments for health standards regulating occupational exposure to toxins and chemicals.

"In light of the [Occupational Safety and Health] Act and Mine Act's mandates that the Secretary set health standards based on the best scientific information available at the time of the agency action, it is particularly important that the Department seek out and receive all relevant data before proposing a health standard," the DOL proposal says.

Two quick thoughts:  (1) great, just what we need in the OSHA area, more hurdles to protecting workplace safety and health.  (2) the Bush DOL just can't help itself even as it approaches it lame duck period from further hindering employee rights in the workplace.

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Jail-Time For Workers' Compensation Violation

Given how few real remedies there are for labor and employment law violations, I take a bit of guilty pleasure when company officials push their luck so far that they end up in jail.  This example is from New York, which has a recent law that makes it a felony to fail to get workers' compensation coverage (although their is an affirmative defense if an employer to reasonable steps to obtain coverage).  The story from BNA (subscription required):

The owner of a New York City nursing home has been arrested on felony charges of failing to secure workers' compensation insurance, New York Attorney General Andrew M. Cuomo (D) announced Aug. 7. According to Cuomo, defendant Helen Sieger, president and chief executive officer of the Kingsbridge Heights Rehabilitation and Care Center in the Bronx, is the first employer to be arrested under a 2007 state workers' compensation reform law that, among other things, made it a felony for employers to fail to secure the coverage. Under prior law, the crime was a misdemeanor, Cuomo said.

Sieger was charged with failing to secure coverage for more than 400 workers at the facility, from May 2007 through June 26. On June 19, the state Workers' Compensation Board issued a stop-work order, due to take effect June 30, based on Sieger's failure to obtain insurance. The order would have brought the immediate closing of the nursing home and emergency removal of the patients. Although Sieger obtained coverage June 27, she still faces charges for the period in which coverage had lapsed, according to Cuomo. . . .

 The 300-bed facility has been mired in a multi-year labor dispute with 1199 SEIU United Health Care Workers East, the New York City-based Service Employees International Union local. The local began an unfair labor practices strike against Kingsbridge Feb. 20, claiming that the facility had failed to make benefit fund payments, conducted surveillance of union members, and failed to abide by a contract agreement. . . .

In March, 1199 President George Gresham called for an investigation by Cuomo's office into allegations that Sieger had misappropriated state funds and violated the state charities law.

Yet another example of a way in which unions can exert pressure outside the NLRA framework.

Hat Tip:  Dennis Walsh

-JH

Worker Safety in Sin City (or The "Belly of the Beast")

Thanks to friend of the blog, Patrick O'Donnell, for bringing to my attention this sickening and troubling workplace safety story about Las Vegas from the LA Times (and for the snazzy title to this post):

A recently hired plumber was sent into the bowels of the Orleans hotel and casino last year to unplug a sewer pipe in a large grease trap -- an assignment that would be his last.

The hotel had no permit or training program to allow plumber Richard Luzier to enter a confined space where he might inhale poisonous sewer gas. He had no breathing apparatus or emergency rescue harness -- all routine precautions.

Luzier fell 12 feet and landed face down in fatty sewage. As supervisors watched, a second unprepared worker, Travis Koehler, went into the pit to help. He collapsed on top of Luzier. A third man, David Snow, was sent in.

By the time city rescue personnel could enter the trap, Snow was in a coma, heaped atop the first two men, who were dead. Snow woke 23 days later in the hospital with a tube down his throat and permanent disabling injuries.

Investigators at the Nevada Occupational Safety and Health Administration concluded that the casino, owned by Boyd Gaming Corp., had "willfully" violated safety rules.

The company had a previous violation involving such confined spaces. And the investigators found evidence that in 2001 a worker fell sick after working in a grease trap and was cared for in a hotel room for several days before being sent to a hospital, according to state records.

But when the investigators tried to formally cite the company after the two men's deaths, Boyd attorneys pressed two political appointees overseeing Nevada OSHA, Mendy Elliott and D. Roger Bremner, for a less severe finding. In a private settlement conference, Bremner, administrator of the Nevada Division of Industrial Relations, knocked the finding down to "serious" rather than "willful," according to state records. A willful finding could have exposed Boyd to civil suits, normallypreventedby workers compensation law.

"You don't touch a casino in this state," said Don Barker, the former safety director of Boyd Gaming. "I got paid to make things go away. I might go into a conference facing a $25,000 fine and leave with a $1,500 fine. This situation would never happen in any other state. The program has no teeth." . . . .

In case after case, the state has dropped or sharply reduced fines and penalties proposed by investigators, just as it did in the Orleans case. To some critics, the handling of the accidents has sent a message to the construction and gaming industries that they can disregard safety rules with near impunity . . . .

As the problems in Nevada have unfolded, unions have walked off the job in protest. The U.S. Labor Department has sent a team to examine the state OSHA program. The U.S. House Education and Labor Committee is investigating. The Las Vegas Sun published a series of stories detailing a pattern of safety problems and lax enforcement.

And the Nevada Attorney General's Office is conducting its own ethics probe into the conduct of Elliott and Bremner. Conrad Hafen, chief deputy attorney general, said his department would not comment on its ongoing investigation.

The gaming industry doesn't like the image. Alan Feldman, senior vice president of public affairs at MGM Mirage, said the safety record was not satisfactory. At MGM's CityCenter project, six workers have died, and the company has expanded its safety program with its general contractor, Perini Building Co., he said.

You know, I am really sorry that Mr. Feldman doesn't like his company's image being hurt, but that it what six deaths on construction projects will do for you.  Cry me a river, buddy. You earned your reputation.

And talk about the fox guarding the hen house: yeah, let's have the Bush OSHA administrator investigate Nevada's program.  Maybe they can sit down and retell stories of how badly they have screwed/kill workers with hazardous workplaces over the last eight years and coddled industry in the process.

Gimme a break.  Just another shady side of the gambling industry. 

Hey, folks, it's all for kicks.  Doesn't the trumpeting crocodile send that message to you?

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Third Largest Fine in OSHA History Against Imperial Sugar, But Is It Enough?

BNA Daily Labor Report (subscription required) has a story about OSHA lowering the boom on a serious industrial accident:

The Occupational Safety and Health Administration proposes an $8,777,500 fine against Imperial Sugar—the third-largest fine in OSHA history—in connection with combustible dust violations at the company's sugar refineries in Port Wentworth, Ga., and Gramercy, La.

An explosion Feb. 7 at the Port Wentworth plant killed 13 workers. Five weeks later, an OSHA inspection at the Gramercy plant uncovered numerous violations. At both plants, inspectors found large accumulations of combustible dust in workrooms and on equipment. OSHA contends that Imperial Sugar officials knew about the hazardous conditions, but chose not to act. "I am outraged that this company would show a complete disregard for its employees' safety by knowingly placing them in an extremely dangerous work environment," OSHA Administrator Edwin G. Foulke Jr. says in a statement.

Responding to the citations, company Chief Executive Officer John Sheptor says Imperial Sugar is contesting the citations. "In short, we believe that the facts do not merit the allegations made. As we go forward, we will continue to focus on the safety of our employees and our contractors, not only as we rebuild our Port Wentworth, Ga., facility, but also at our Gramercy, La., and Ludlow, Ky., facilities. We look forward to continuing our partnership with OSHA in the future as we have in the past."

If the company knew and did not act and the result was 13 people were killed, what about criminal sanctions?  Isn't this equivalent to manslaughter if the allegations are true?  When will we really hold companies responsible for this type of murderous conduct?  Money is just money.

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Kennedy Pushing OSHA Reform

The May 12, 2008 Issue of Inside OSHA (subscription required but free trial available) reports that much-needed OSHA reform may soon be on its way if Senator Kennedy has anything to say about it:

Senate labor committee Chair Edward Kennedy (D-MA) plans to push separate sections of his OSHA reform bill this year if he cannot get the entire bill passed, a source close to the issue told Inside OSHA. The OSHA reform legislation was dormant until a couple of months ago when Kennedy began holding worker safety-related hearings.

The source told Inside OSHA that requiring stiffer penalties for worker health and safety violations is a huge priority for Kennedy.

During an April 29 hearing on OSHA’s outdated penalty structure, Kennedy heard suggestions from AFL-CIO, a former employee of the Department of Justice, and a victims’ representative group on how to strengthen the enforcement provisions in his bill, The Protecting America’s Workers Act (PAW Act) . . . .

The PAW Act would strengthen OSHA enforcement by imposing criminal sanctions and enhanced penalties for fatal injuries, and expanding rights for victims and survivors of workplace tragedies. The bill also would expand and strengthen “whistleblower” and anti-retaliation protections for workers who complain about hazards and injuries and expand the OSH Act’s scope to include public sector workers.

OSHA reform has been necessary for decades now.  It is always amazing to me that workers continue to get sick and die in the workplace and there is not more outrage in this country about the current state of affairs. There also needs to be more uniformity in workplace safety protection for public employees, a group that makes up about one-fifth of our nation's workforce and continues to grow in proportion.

Just another reason why it is so important to elect a Democratic President who will sign a PAW Act-type bill.

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Are you Allergic to Work or Is It Occupational Asthma?

I'm not, but Patty Mulcahy claims she is (via the NY Times):

FOR Patty Mulcahy, it began with itchy eyes. They started to water two years ago when renovation began on the Midtown office building where she was working as an assistant at a television network. By the fifth day, after 30,000 square feet of new carpeting had been glued in place, the redness and swelling became unbearable. She ended up in the emergency room . . . .

Over the next three months, she developed a bad cough. Doctors at first suspected pneumonia, but it worsened in spite of antibiotics. When she collapsed at her desk in October 2006, barely able to breathe, she learned she had what doctors call “occupational asthma.”

In other words, she was allergic to work . . . .

Occupational asthma alone is estimated to be responsible for 24.5 million missed workdays nationwide annually, said Dr. Karin Pacheco, an occupational medicine specialist at the National Jewish Medical and Research Center in Denver, which specializes in respiratory illness . . . .

The Occupational Safety and Health Administration (osha.gov) has guidelines for handling these and other substances, and masks, ventilation systems and exposure rotations go a long way toward reducing allergies at work. But some people suffer even with the best of practices.

Severe allergies fall under the Americans with Disabilities Act, which requires employers to make reasonable changes in the workplace to enable an employee to do the job. And allergies developed at work often fall under workers’ compensation laws. But both routes can be complex and capricious, and redress is often dependent on the attitude of the employer.

The story goes on to explain some stories where employees have sued for a less allergy-causing workplace, including this one:

Conflicts over work-related irritants and allergens can end up in court. Last July, Susan McBride, who works in the planning department of the City of Detroit, sued the city in United States District Court for violation of the Americans with Disabilities Act.

Ms. McBride, her lawsuit says, suffers from severe migraines, dizziness, nausea, earaches and sinus and breathing problems when exposed to strong scents, and she regularly became ill at work when a colleague arrived wearing perfume. The colleague refused to stop spritzing (though she did agree to unplug an air freshener) and the women’s bosses refused to ban scents in the office.

I can just she the workers' right camaign now: "Hell No! I Won't Stop Spritzing." And yes, I have suffered perfume and cologne attacks, unprovoked, in many different office and elevator environments.

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A New Hazardous Occupation: Blogging

Andrew Sullivan at the Daily Dish brought this article in the New York Times about the apparent dangers of blogo-mania to my attention.

Here are some highlights:

Two weeks ago in North Lauderdale, Fla., funeral services were held for Russell Shaw, a prolific blogger on technology subjects who died at 60 of a heart attack. In December, another tech blogger, Marc Orchant, died at 50 of a massive coronary. A third, Om Malik, 41, survived a heart attack in December.

Other bloggers complain of weight loss or gain, sleep disorders, exhaustion and other maladies born of the nonstop strain of producing for a news and information cycle that is as always-on as the Internet.

To be sure, there is no official diagnosis of death by blogging, and the premature demise of two people obviously does not qualify as an epidemic. There is also no certainty that the stress of the work contributed to their deaths. But friends and family of the deceased, and fellow information workers, say those deaths have them thinking about the dangers of their work style.

Paging OSHA!

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Is OSHA Unconstitutional? ...

... under the nondelegation doctrine?  No, says Cass Sunstein (Chicago), but the statute should be construed as requiring the OSH Agency to engage in cost-benefit analysis.  Here's the abstract of his article, forthcoming in Virginia L. Rev.:

Under the Occupational Safety and Health Act, the Secretary of Labor is authorized to issue whatever standards are reasonably necessary or appropriate to provide safe or healthful places of employment. More than any other provision in federal regulatory law, this language is subject to a plausible nondelegation challenge, because it seems to ask the Secretary to choose among a wide array of intelligible principles for standard-setting. The constitutional challenge raises serious and unresolved questions for both regulatory policy and administrative law. In answering those questions, courts have three principal alternatives. The most aggressive approach would be to invalidate the statute in the hopes of encouraging, for the first time, sustained legislative deliberation about the proper content of occupational safety and health policy. The most modest approach, rooted in the Avoidance Canon, would be to construe the statutory language to produce floors and ceilings on agency action; that approach would require the Secretary to ban significant risks while forbidding the Secretary from regulating trivial or de minimis risks and also requiring the Secretary to show that any regulations are feasible. The third and preferable approach, also rooted in the Avoidance Canon, would be to construe the statute so as to require the agency to engage in a form of cost-benefit balancing. Such a construction would have the advantage of promoting greater transparency and accountability at the agency level. At the same time, it would raise difficult questions about the precise nature of such balancing in the context of occupational safety policy and also about legal constraints on agency assessment of both costs and benefits. Because of the distinctive nature of workplace safety, the best approach would give the agency considerable flexibility on questions of valuation while also permitting serious attention to distributional factors.

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Anders on Silkwood

Kelly Anders (left) has just posted on SSRN her essay (just published in S. Tex. L. Rev.) Reviewing Silkwood at 25: The Reel Impact on Environmental Policy.  Here's the abstract:

The year 2008 will mark the twenty-fifth anniversary of the release of the film Silkwood [Meryl Streep, Kurt Russell], which depicted the events surrounding the apparent plutonium contamination and mysterious death of Kerr-McGee employee Karen Silkwood. The film featured the facts leading up to the case, but many would argue that the resulting lawsuit involved a legal battle worthy of a sequel. The Kerr-McGee Corporation may no longer exist, but the former company continues to impact our concepts of environmental policy, whistleblower protection, and damages awards through case law. This essay provides a comparative analysis of the case and its depiction in film and follows with a summary of how both continue to impact environmental policy.

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Democrats Look to Revitalize OSHA Agenda

Thanks to the folks at Inside OSHA Magazine for this take on what a Democratic administration would mean for OSHA reform:

Democratic presidential candidates say they would work toward enactment of an ergonomics law, expand OSHA to include public employees, increase the agency’s budget, stop the emphasis on the voluntary protection programs and strengthen protections for whistleblowers if elected to lead the country in November. Republican candidate former Gov. Mitt Romney (MA)
wants to reduce the regulatory burden on industry and Sen. John McCain (RAZ)
would focus on making radio spectrum available to first responders.

Notice a slight different in emphasis between the parties? You can read the rest of the article here.

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