When the Secretary of the Department of Labor and the Occupational Safety and Health Review Commission offer competing but reasonable interpretations of a worker safety regulation, the Secretary's interpretation is entitled to deference, according to a recent decision by the Eighth Circuit Court of Appeals, Perez v. Lorenz Cook Co., Case No. 13-1310 (8th Cir., May 9, 2014).
The Lorenz Cook decision is bad news for employers because it gives the interpretive advantage to the DOL's Occupational Safety and Health Administration ("OSHA"), which adopts and enforces safety regulations, rather than to the OSHRC. The OSHRC ("the Commission") is an independent agency that conducts hearings and renders decisions through its Administrative Law Judges (ALJs) and reviews ALJ decisions through its panel of Commissioners.
The case involved the interpretation of 29 C.F.R. § 1910.212(a)(1), which sets standards for machine guards. The Secretary cited Lorenz Cook, a manufacturer of air circulating equipment, for violating the regulation and imposed $490,000 in fines after a worker was killed when a twelve-pound "workpiece" broke loose from a lathe, shot out, and struck him in the head. A “workpiece” is a metal disc that workers shape into a part. The Secretary determined that the regulation requires lathes such as those used by Lorenz Cook to have guards to protect workers from ejected workpieces. Loren Cook challenged this interpretation. An ALJ ruled in Loren Cook’s favor, holding that the regulation only required guards on the lathes to prevent debris or waste material from being ejected; it was not intended to prevent the ejection of the workpiece, which would entail a malfunction of the machine. The Commission, which has discretionary authority to review ALJ decisions, declined further review, and the Secretary appealed the case.
The Eighth Circuit reversed the ALJ’s decision, relying on the Supreme Court's decision in Martin v. Occupational Safety & Health Review Commission, 499 U.S. 144 (1991). In Martin, the Supreme Court held that "a reviewing court may not prefer the reasonable interpretations of the Commission to the reasonable interpretations of the Secretary[.]" While the Commission has authority to make findings of fact and to apply the Secretary's standards to those facts in making a decision, the Commission has "no more power than this in order to perform its statutory role as 'neutral arbiter.'" Applying Martin, the Eighth Circuit found that the Secretary's interpretation was reasonable and thus entitled to deference. The regulation, the court noted, "contains no inherent limitation to protections only against ejected debris rather than workpieces and no inherent limitation to situations involving normal machine operation rather than machine malfunctions." The court rejected Lorenz Cook's argument that the Secretary had for decades acquiesced in a 1982 court decision that had interpreted the regulation more narrowly. The Eighth Circuit reasoned that the Secretary’s "understanding of the effect of an interpretation may develop over time," which itself does not demonstrate unreasonableness.
For employers, the Lorenz Cook decision illustrates one of the fundamental challenges in defending against OSHA violations. The Secretary of Labor not only adopts and enforces safety regulations, but his interpretation of those regulations is entitled to judicial deference as long as it is reasonable – even when that interpretation departs from the Secretary’s longstanding practice. Employers seeking to challenge the Secretary's interpretation of a safety regulation therefore face an uphill battle.