Court Grants Deference to Secretary of Labor's Interpretation of OSHA Regulation

by Akerman LLP - HR Defense
Contact

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.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Akerman LLP - HR Defense | Attorney Advertising

Written by:

Akerman LLP - HR Defense
Contact
more
less

Akerman LLP - HR Defense on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.