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The Trump administration hasn’t issued any press releases about large enforcement actions
Since President Donald Trump took office, the Occupational Safety and Health Administration (OSHA) hasn't issued any press releases naming the employers it fines. But a former employee of the agency decided to take matters into his own hands and publish a list of employer fines on his blog.
President Barack Obama's administration had issued about 460 news releases annually about OSHA fines and enforcement actions, according to The New York Times. This publicity was used to encourage employer compliance and reduce the number of workplace safety violations. However, the last of this kind of press release was issued on Jan. 18, just before Trump was inaugurated.
"OSHA is a small agency that must leverage its resources," said Jordan Barab, a deputy assistant secretary of OSHA during the Obama administration. "Press releases not only impact the companies receiving the citation, but also others in the same industry and geographic area," he told SHRM Online.
"It's important that this information gets out there, and if OSHA's not going to do it, someone has to," Barab said. And that's why he posted a list of significant employer fines that the agency issued between mid-January and mid-February.
The raw data he used to compile the list is available on the Department of Labor and OSHA websites, he explained.
He said enforcement press releases not only impact the industry by letting businesses know that OSHA won't tolerate violations of the law that can harm workers, but they also serve an educational purpose for workers and employers who need to know about the laws and best practices.
[SHRM members-only toolkit: Developing Effective Safety Management Programs]
Opponents of the press-release tactic, however, call it a "naming and shaming" strategy that's unfair to employers.
David Michaels, the former assistant secretary of labor for occupational safety and health, and the previous administration imposed punishment in the form of adverse publicity even though the employers that received the citations had not yet had a chance to be heard by an impartial adjudicator, said Arthur Sapper, an attorney with Ogletree Deakins in Washington, D.C., and former deputy general counsel of the Occupational Safety and Health Review Commission.
"In [Alice's Adventures in Wonderland], the Red Queen imposed punishment first and held the trial later, and that is what David Michaels and the previous administration did," he added.
Policies on Adverse Publicity
The list Barab published makes it clear that the agency is still issuing fines under the new administration. So why hasn't it published related press releases?
"I can only guess, but it is probable that, until the new administration has a policy in place on press releases, it does not want to be accused of engaging in regulation by shaming, a policy by David Michaels that was abusive and unlawful," Sapper said.
Barab emphasized, however, that the threat of enforcement motivates many employers to do the right thing: seek help, ask for compliance assistance and invest in safety. "But OSHA's program has to be balanced with compliance assistance for small employers and vulnerable workers," he said.
Sapper noted that Trump's people may be waiting until there is a new head of OSHA and a new thought-out policy on press releases. "The Trump beachhead team now at the Department of Labor probably believes that this kind of thinking would be hard to uproot from the thinking of the career people in the Department of Labor who prepare press releases."
He added that employers should be on the lookout for a policy on adverse publicity from the new administration, but that could be down the road a bit.
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