Readers of a January 2, 2014, editorial in the Wall Street Journal, “A Bumper Crop of Bureaucracy,” may have wondered whether they should cry or laugh after learning about OSHA’s exploits to inspect small family farms. For decades, Congress has barred OSHA from enforcing its standards on farms with ten or fewer employees, but in 2011 it issued a novel “Interpretation Letter” stating that postharvest crop processing, including grain storage, turned farms into a “grain handling facilities” subject to OSHA’s jurisdiction and standards. Several small farms have been inspected and cited under this interpretation, including one Nebraska farmer with more than $130,000 in proposed penalties. OSHA’s Interpretation Letter caused Senator Mike Johann (R., Neb.) to condemn OSHA’s actions as “absolutely incredible,” an “absurd” position, and “a blatant overreach in violation of the law.” He and 42 other Senators sent a letter to the Secretary of Labor demanding that OSHA play by the rules.
The Interpretation Letter exposed by the Wall Street Journal is not an isolated occurrence. Over the last few years, OSHA has increasingly interpreted its standards in a way to allow for more expansive and aggressive enforcement. In many cases, the interpretations re-write the requirements of the law. Two recent cases illustrate this point.
In Petro Hunt, LLC, (No. 11-073, 2012), OSHA cited an oil and gas producer for not requiring its oil rig workers to wear flame-retardant clothing (FRC) under OSHA’s personal protective equipment (PPE) standard. The PPE standard is broadly worded to apply to a number of hazardous conditions in a number of industries – it does not specify what type of PPE is required in each condition. In 2010, however, OSHA issued an “Enforcement Policy” stating that employers are required to provide FRC during certain oil and gas operations. In so doing, OSHA changed the performance-based PPE standard into a strict requirement that all employees wear FRC regardless of the circumstances.
Petro Hunt contested the citation and won. The Judge concluded that OSHA’s “Enforcement Policy” was the equivalent of a new standard which OSHA could not enforce without going through the proper rulemaking process, including notice to the public and opportunity to comment. The Judge also concluded that OSHA’s interpretation of the standard was unreasonable.
Cargill Meat Solutions Corporation (No. 10-1056, 2012) is another example of OSHA’s expansive interpretations. There, OSHA cited the company for not providing or paying for work boots required of all production employees. Even though OSHA’s PPE payment rule exempted payment for “normal work boots,” OSHA claimed the boots were “special” – not “normal” – because the company required the boots be slip-resistant and water-resistant, an attribute of almost all work boots. Under OSHA’s interpretation, the company was required to pay.
Cargill contested the citation and won. On a variety of grounds, the Judge held that OSHA’s interpretation was unreasonable and unenforceable. As the Judge explained, not all standards are subject to interpretation, particularly when the “plain meaning” of the standard does not require interpretation, as in the Cargill case. Even if a standard is ambiguous – and many OSHA standards are – OSHA’s interpretation must be “reasonable” before it will be given effect by the courts. The courts look to a number of factors such as OSHA’s intent in adopting the rule, whether OSHA has consistently applied its interpretation, and whether employers were given fair notice of OSHA’s interpretation.
Most laws are subject to interpretation, but OSHA’s aggressive approach can put employers at an unfair disadvantage. Unlike the rulemaking process where proposed rule changes are publically announced, explained, and subject to public comment, the OSHA interpretation process is often very obscure. OSHA can interpret its standards in a variety of ways including the issuance of “Interpretations Letters” sent to individual employers, enforcement directives, and policy memos. While these documents are usually posted on OSHA’s web site, few employers have the time or resources to research the Web for possible interpretations. Deciding whether an interpretation is correct or flawed is even more challenging. Making matters even more difficult, OSHA may choose to interpret a standard for the first time when it issues a citation. In this situation, the employer may not know how OSHA intends to read and enforce the law until it receives the citation, attends an informal settlement conference or conducts discovery in a contested proceeding.
Unreasonable OSHA interpretations are not easily resolved. Because OSHA interpretations can affect a large number of employers or even an entire industry, OSHA has a significant stake in upholding the validity of its interpretations. Interpretation disputes are rarely resolved in informal settlement conferences. Indeed, many cannot be resolved short of a hearing before an Administrative Law Judge of the federal Occupational Safety and Health Review Commission and subsequent appeals. While the Review Commission has shown its willingness to strike down unreasonable OSHA interpretations, as the Petro Hunt and Cargill cases demonstrate, resolving interpretation disputes through litigation is complex, time consuming and costly.