Small business has long wanted a larger profile when it comes to challenging federal workplace regulators. Now, thanks to a package of four bills that passed the House last month, small businesses have a shot at gaining much of the relief they sought.
One of the business community's biggest complaints about the Occupational Safety and Health Administration has been what it perceives to be the unfairness of the agency going after small employers who don't have the resources to fight citations. The claim has been that small businesses pay because they don't have the time or money to fight.
Republicans in the House have taken the complaints seriously, pushing through provisions -- with some help from Democrats -- that will give employers more time to fight citations, make it easier to recoup legal fees if they win a case against OSHA, and not allow the agency to have the final word in how a standard is applied.
The sponsor of the bills, Rep. Charles Whitlow Norwood (R-Ga.), chairman of the workforce protections subcommittee of the Education and Workforce Committee, views the legislation as a fairness issue. New laws, he said in a statement, would level "the playing field for small business by giving them new tools to fight unjust OSHA citations.
The bills were bundled with a paperwork reduction reform initiative that also passed the House, but seem to have only mixed prospects in the Senate. Business lobbyists hope that they might slide through by hitching a ride on an end-of-the-session bill.
"We would like them to be attached to another piece of legislation. These don't change workplace safety regulations. We are trying to get some fairness in the court system. We think the bills are very reasonable. They don't go too far," said Christopher M. Tampio, director of employment policy for the National Association of Manufacturers, one of the main backers of the effort.
The bills would do the following:
* Businesses would have more than 15 days to signal they want to contest an OSHA citation in front of the Occupational Safety and Health Review Commission, an independent agency that reviews disputes between employers, workers and OSHA.
Currently, employers have 15 days to file responses to citations, though the commission can waive a deadline if it finds the company missed it for good reason.
In one recent case, often cited by business lobbyists, a company missed the deadline because a secretary lost the certified mail from OSHA informing the company it was being fined $11,265. The commission excused the company. But OSHA went to court and won, meaning the 15-day deadline was upheld.
* The legislation would allow the commission to decide whether a company should be excused for "mistake, inadvertence, surprise of excusable neglect."
* One of the bills addresses another pet peeve of business -- that it is difficult to recover legal costs from the agency when a company wins a contest. Currently, under the Equal Access to Justice Act, small businesses can't recover costs of litigation if OSHA can show the action it brought was substantially justified -- even though the company successfully challenged the citation.
The legislative fix would make it possible for businesses with fewer than 100 employees and less than $7 million in net worth to recoup their legal expenses if they win their cases. Proponents of the bill said small businesses would be encouraged to fight citations and OSHA would think twice about the merits before bringing a case.
According to the Occupational Safety and Health Review Commission, businesses filed 111 applications to recoup their legal fees between 1981 and 2004. Of those, 37 were reimbursed, costing OSHA almost $300,000.
* The legislation also would expand the commission's membership to five members from three. The change is needed, supporters said, because cases get backlogged when the commission doesn't have a quorum.
* The most significant change would be that the review commission, not the Labor Department, would have the final administrative say in interpreting OSHA's standards and the application of them. When disputes on the meaning of an agency rule or citation end up in court, the courts usually "defer" to the judgment of the agency, the record shows.
The AFL-CIO led the opposition to the bills, saying legislation would weaken OSHA's enforcement authority. "These are four different bills and each one in our view is problematic and objectionable," said Peg Seminario, director of the AFL-CIO's department of occupational safety and health. "None of these advance worker safety and health, and some would be quite detrimental to the OSHA enforcement program."
The union said eliminating the 15-day deadline for companies to contest OSHA citations would result in more litigation and delay the time employers have to fix the problems pointed out in the citations.
The union said making it easier for companies to recover attorneys' fees would drain an agency already short on resources. It does not believe the commission needs to be expanded to five members, particularly because the current administration would likely put anti-regulation Republicans on the panel.
Though prospects for the bill are not considered good in the Senate -- where Sen. Edward M. Kennedy (D-Mass.) has a bill that would increase OSHA's enforcement authority -- Democrats on the House subcommittee said their symbolic effect should not be overlooked. One Democratic aide, who asked not to be named, said it would be unwise to dismiss their importance because they send a signal to OSHA not to take aggressive enforcement action.
The Bush administration has said nothing publicly about the bills, but it is unlikely that the Labor Department would want to cede any of its authority to interpret policy to the review commission. The agency also has fought in court for keeping the 15-day deadline.
W. Scott Railton, chairman of the review commission and formerly an attorney who represented companies in safety and health enforcement proceedings, said he would like to see an expanded board which might have expanded jurisdiction over issues such as employment discrimination. "There have been periods when only one commissioner held office and there was at least one period when the agency had no sitting commissioners," he said.