Thursday, January 4, 2007
Here is a recently-filed lawsuit that was brought to my attention by a reporter at Marketplace, the NPR radio program. The AFL-CIO and the United Food and Commercial Workers (UFCW) have sued the Department of Labor (DOL), and really more specifically the Occupational and Safety and Health Administration (OSHA), for failing to put into place a long promised regulation to require employers pay for personal protection equipment (PPE), mandated by other OSHA standards.
Apparently, since 1999, OSHA has been promising to put into place the employer PPE pay standard, but has consistently delayed putting out final regulations. The AFL-CIO and the UFCW have had enough and are now suing to compel the standard to be put into place.
As far as I know, I am not aware of a plaintiff in the past being successful in compelling a federal agency to issue a rule. There might be an action for mandamus under the Administrative Procedure Act (APA), but that would require review of an arbitrary and capricious decision made by OSHA. The problem here, as I understand it, is that OSHA has never made any decision and has just not acted with regard to the PPE pay regulation. In such circumstances, it probably will be very difficult for the labor unions to succeed in forcing OSHA to issue the desired rule.
In any event, it is interesting litigation and has the potential to set important labor/administrative law precedent, so stay tuned.