One of the more significant election promises made by then-candidate Donald Trump was his pledge to reduce the regulatory burden on American businesses. With his “two regulations withdrawn for every one proposed” approach, he’s been largely successful in making his promise a reality. As a result, the economy has boomed in relative terms. Gone seem to be the days of one- to one-half percent growth. We were almost at 3 percent in the latest quarter. Unemployment is at its lowest level in decades.
“Help wanted” signs are on the doors of virtually every business and across all electronic job posting boards. Much of this is the result of the major deregulation that has occurred.
Bureaucrats Push Back
While the reduction of regulations in general has cut across almost all executive branch agencies, those related to labor and employment matters — at least at the regional level — appear to be pushing in the other direction. It could be argued that they’re choosing to reinterpret the laws they enforce as a way of responding to deregulation. The Occupational Safety and Health Administration (OSHA) within the U.S. Dept. of Labor (DOL) and the National Labor Relations Board (NLRB), the two primary agencies that deal with the workplace, both appear to be expanding their reach through novel enforcement strategies never seen before. Whether this is nothing more than the natural evolution of the administrative state or an effort to create issues in areas where substantial employer compliance has been the norm to justify their budget is unclear. In either case, they’ve identified work-related issues to which they’re applying their respective laws in a manner that certainly seems to expand their jurisdiction.
OSHA Re-examines Safety
OSHA, from its inception in 1970, has relied substantially upon what’s commonly referred to as the “general duty” clause to assure that America’s workplaces are safe. That provision in the law requires employers to provide a workplace as free as possible of known hazards that could cause death or serious physical harm to its employees. It’s much broader than the hazard-specific standards that OSHA also issues and enforces. It also requires employees to comply with occupational and health standards issued pursuant to the law. It was under that provision that OSHA recently began an investigation in one workplace into an issue that rarely, if ever, has been considered their jurisdiction. Apparently, as the result of an employee complaint, one of the agency’s field offices began a top-to-bottom investigation of an employer’s handling of the employer’s post-injury return-to-work procedures covering the last several years. At the heart of the investigation is whether the employer pressured injured employees to return to work before full recovery, thus subjecting them to hazardous conditions. In addition to the 300 logs, forms and all related documents, the all-encompassing subpoena included every medical and related record for every employee that had suffered a reportable injury. It’s unclear what they hope to establish by reviewing every single medical record. Few employees return to work contrary to their doctor’s medical opinion and employers rarely have direct contact with a treating physician.
Aside from the time-consuming and costly task of copying and providing volumes of medical records, there could also be the possibility of an OSHA violation and fines. It will be interesting to see how the case develops, and more importantly, if return-to-work procedures become a routine part of future OSHA inspections.
The NLRB and Sexual Harassment
The issue that the NLRB seems to be expanding their jurisdiction is one that up to now, has always been the exclusive realm of the Equal Employment Opportunity Commission (EEOC) — sexual harassment.
The issue that’s grown the most in terms of NLRB enforcement activity in recent years is that of “concerted protected activity” under Section 7 of the National Labor Relations Act (NLRA). This is the corollary to the well-recognized “union activity” that has always been the core focus of the NLRA. It generally refers to employee activity, most commonly speech, that’s engaged in by employees, or an employee, on behalf of themselves and other employees. A typical example would be employees demanding a pay increase or a change in benefits. In the context of a sexual harassment claim, it’s not the alleged harassment as such that’s the basis for the claimed unfair labor practice, but rather interference or retaliation for the concerted activity of complaining about harassment that affects more than one employee. It could also include complaining of a sexually hostile working environment, since by definition, it affects all employees. Seen from that perspective, it might just be the NLRB expanding the concept of concerted activity to issues never before considered.
In a worst-case scenario, employees who felt that they were the victims of unresolved sexual harassment after complaining, could quit and allege they were the victims of a “constructive discharge.” If they could tie their quitting to their concerted activity of complaining with no sufficient employer response, they would have a viable unfair labor practice charge. Obviously, if the employer terminated or took other retaliatory action against a complaining employee the same result would hold.
Both situations addressed above admittedly involve unique facts. Nonetheless, they’re good examples of how two of the more significant federal agencies that deal with workforce and have been hit with deregulation appear to be going beyond their recognized jurisdiction. At the very least, they’re enforcing the law in new ways. It would be interesting to see if such expansions of jurisdiction are occurring in other executive agencies that’ve been subjected to deregulation. Could it be a conscious reaction to the current administration’s rollback of the regulatory or administrative state?