President Biden’s team should hope that his threatening to have the Occupational Safety and Health Administration issue and enforce a mandatory vaccination requirement is a “misdirection.”
A “misdirection” is an “action or process of sending someone to the wrong place or in the wrong direction.” Hopefully this threat was to send people “to the wrong place or in the wrong direction” and away from his failures at everything else he has touched, such as the southern border.
This career politician knows the saying that an international issue will encourage people to rally around him, but it was the international issue of the botched withdrawal from Afghanistan that caused even his ardent supporters in the mainstream press — CNN, MSNBC, NBC, ABC, CBS, New York Times and Washington Post — to criticize him.
Even his usual “go to” of his altering the theme of the comedian Flip Wilson’s “The devil made me do it” to “Trump made me do it” failed.
The decision makers in the White House, whoever they are, knew a required vaccination program would be an effective misdirection, at least for the mainstream media, but this threat needed an enforcement threat. Why not OSHA?
Well folks, here is why not.
The Occupational Safety and Health Administration was created by the federal Occupational Safety and Health Act. The agency is overseen by the U.S. Department of Labor.
The legislation behind OSHA was signed into law in 1971 by President Richard Nixon. How is that for irony in the way the current president criticizes both Mr. Nixon and Republicans?
When I became an employment lawyer in 1974, I was given the responsibility for OSHA since its coverage is limited to the workplace. After decades of this practice several aspects of OSHA became clear.
— Jurisdiction of OSHA is a question. OSHA is limited to workplace areas not already regulated by another federal agency.
For example, when I proved that when a tank truck driver stepped from a loading dock onto the top of his tank truck, he was stepping out of the jurisdiction of OSHA and into the jurisdiction of the Transportation Department, the judge dismissed the case. Interestingly there is an argument that when an employee works anywhere, even at home, OSHA may have jurisdiction.
— Rulemaking for OSHA is a question. OSHA cannot simply declare a regulation. Proposed regulations must be published in the Federal Register for months to provide the public the opportunity to review and provide their comments. These comments must be considered before any regulations can be finalized and enforced. In one of my cases OSHA tried to enforce proposed regulations: case dismissed.
— Enforcement of OSHA is a question. OSHA inspectors’ complaints must be written and served on the employer. If the parties are not able to resolve the issues, it is referred to the OSHA legal team which, for one of my cases, involved the entire OSHA team of lawyers from their largest office, the one in New York City.
Trials are before administrative law judges
— Politics for OSHA is a question. OSHA is not an exception to the rule that politics seem to be involved in federal agencies.
For example, Elizabeth Dole, who was labor secretary during the Clinton administration, declared my client as a “target” before she had any specific knowledge of the complaint.
When I requested a meeting in D.C., the response was “Not unless you put a million dollars on the table.” Imagine a “public servant” demanding a million dollars before even talking to me about a case where their proposed remedies were an $8 million fine and 16,000 employees potentially losing their jobs? All this did was raise my blood pressure and my determination to defeat them in court: which we did.
— Litigation for OSHA is a question. Discovery, the beginning of all litigation, may be quite extensive. For example, in one of my cases my team, on a daily basis, had to wheel a small truck load of documents through security in the World Trade Center: ironic? In a case with more trial days than the O.J. case, the OSHA lawyers presented their inspectors, managers and the college professors they hired as experts. We cross examined them and presented our company witnesses and experts, which they cross examined.
— Verdicts for OSHA is a question. The reason 85% of civil cases settle without a trial is that rarely is either party certain of the outcome from trials.
Even post trial, this uncertainty continues while waiting for the judge to review the evidence and write the verdict.
In the case discussed above, post-trial OSHA was so confident that it gave an award to its lead attorney.
Imagine the shock waves that must have run through OSHA when the judge issued an order dismissing all counts of the complaint and reducing their proposed fine of $8 million to zero.
I was thrilled for our 16,000 employees.
— Appeal within OSHA is a question. Appeals by either party are to the OSH Review Commission, which in the case discussed herein OSHA filed. The OSHRC upheld the trial judge’s verdict (OSHRC Docket No. 95-1483).
— Appeal to courts for OSHA is a question. After the OSHRC rules, either party has the right to appeal on the record to a Federal Circuit Court of Appeals. In our case OSHA threatened but after reviewing the record declined: obviously, we did not appeal.
These steps illustrate the expense of time, money and effort, for the entire OSHA compliance and legal team from their largest office, besides of managers from D.C., for just one case. Imagining these steps for hundreds of employers illustrates the hope that the threat of using OSHA for enforcing a required vaccination policy is a “misdirection.” As a “misdirection,” it worked for the mainstream media.
For example, on Tuesday morning a CNBC host directed the conversation in that direction and away from the House minority leader’s attempts to discuss the president’s proposed $3.5 trillion spending bill.
However, if it is not a “misdirection,” then the implications for the competence and veracity of the White House team are far worse.
Brent E. Zepke
The author lives in Santa Barbara.