Material in the Federal Register recently seems to have been written just to catch the eye of President-elect Ronald Reagan's men. It's almost as if some bureaucrats have been pounding out notices with some sort of structural death wish in mind.
Take the example of the Occupational Safety and Health Administration (OSHA), an already identified Reagan target. A proposed OSHA rule, printed in the Nov. 14 Federal Register (page 75232), would require employers to pay something called "walkaround compensation." If OSHA wants a quick test of what the Reagan administration is willing to put up with, this might be it.
Walkaround compensation is the normal pay an employe would get for the time he or she spends accompanying OSHA inspectors during their "walkaround inspections" of workplaces, helping the government officials determine whether there are any occupational health or safety violations.
This matter has been bouncing between OSHA and the Labor Department solicitor's office for seven years, with two side trips into federal court. The controversy is whether employers, who don't want to pay for the time their workers spend with OSHA inspectors, can be forced to do so. No government money is involved; it's just a question of whether a federal agency can make an employer pay for the time his worker isn't working for him.
According to OSHA's notice, there were 165,000 federal and state OSHA safety and health inspections in 1979, taking an average of six hours each. Using OSHA's own suggested average hourly pay rate of $6.61 for a nonsupervisory employe -- of the type involved in the rule -- the amount of walkaround compensation an employe would get under the rule comes to roughly $40. If the rule didn't exist, and the employer didn't pay the employe for the time, that's also the amount of pay he or she would lose during the inspection.
If no employer in the country paid workers for the time they spent on OSHA inspections, the total lost to the workers, OSHA estimates, would be $5.3 million. But many employers do pay their employes for time spent with the federal inspectors. How many? OSHA doesn't know, or if it does it won't say. Its notice, however, says that some unions pick up the cost to their members.
So OSHA obviously isn't into this thing because of the size of the problem. How did it start? Digging into that question exposes politics at the root.
Back in August 1971, OSHA responded to a union complaint about a Mobil oil refinery. Employes participated in the inspection, got their regular company pay for the time spent and OSHA reported three serious and 90 minor violations. The next time OSHA came, in late October 1971, the four employes who went along found their pay docked for the time they spent walking around with the inspectors.
The matter was taken up in OSHA and passed on to the Labor Department's solicitor. In was 1973, the Nixon administration was in power and the answer came back that walkaround time was not "hours worked," and thus employers were not required to pay it.
The four employes took the matter to court, suing Mobil for their lost wages. They lost, first in U.S. District Court in 1974 and again in the U.S. Court of Appeals in 1975.
Enter the Carter administration. Lo and behold, in September 1977 the new Labor Department solicitor reevaluated the case and decided walkaround time was "hours worked," despite the two court opinions, and denying pay for the time constituted illegal discrimination against the worker. That same month, OSHA put out a rule that embodied the solicitor's new views.
One month later, the U.S. Chamber of Commerce took OSHA to court to challenge the validity of the rule. This time the U.S. District Court supported OSHA. But the chamber won its appeal. The U.S. Court of Appeals sent the matter back to OSHA.
So here we are, on the eve of the Reagan administration, and OSHA is again pushing for walkaround compensation. Why is it needed? According to the OSHA notice, "failure of an employer to pay an employe . . . would discourage employes" from participating in OSHA inspections.
In its final argument, OSHA really turns up the rhetoric: "Forcing employes to suffer economic loss through a loss of pay or other benefits constitutes a serious disincentive to exercise of these rights . . . [and] should be treated as per se discrimination against the exercise of employe rights."
Comments are due Dec. 29. That might give time enough to push through a new rule before Jan. 20, when you-know-who's crowd takes power.