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Senate Vote: 93     Vote Date: Mar 22nd, 2017

Issue: H.J. Res. 83, A joint resolution disapproving the rule submitted by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.”   Question: On the Joint Resolution.

Result: Passed, 50 to 48, 2 not voting. Passed in House, Roll Call 121, 3-1-17. Became Public Law 115-21 (signed by the President, 4-3-2017). GOP and Democrats scored.

Freedom First Society: H.J. Res. 83 would overturn a last-minute rule of the outgoing Obama administration. That rule, if left standing, would unilaterally extend the statute of limitations from 6 months to 5 years under which OSHA could cite employers for “violations” of record-keeping requirements regarding worker injuries.

The Obama administration had no authority to make this rule — only Congress can revise statutes. Even worse, the rule would further amplify existing unconstitutional federal intrusion in the workplace. The rule does nothing to improve worker safety (see below), while increasing the regulatory burden on employers.

We have assigned (good vote) to the Yeas and (bad vote) to the Nays. (P = voted present; ? = not voting; blank = not listed on roll call.)

Bill Summary: House Joint Resolution 83 makes use of an expedited legislative process authorized by the Congressional Review Act of 1996 to overturn administration rules issued within the previous 60 legislative days.

Analysis of the Department of Labor rule:  We support the GOP repeal of this rule, a last-minute parting shot by the Obama administration. However, it was clear from the House debate arguments that the GOP had accepted the federal government’s prior unconstitutional usurpation of state and local authority over the domestic workplace in the form of OSHA (Occupational Safety and Health Administration). (See our summary of the unconstitutional 1970 OSHA power grab, below.)

As Napoleon once astutely observed “the purely defensive is doomed to defeat.” Merely defending against further Federal regulatory intrusions will never stem the growth of Big Brother. There must be leadership for a movement to roll back the unconstitutional federal expansion.

The offending OSHA rule, known as the Volks Rule, was a unilateral attempt by OSHA to extend the statute of limitations for record keeping violations, after a prior overreach had been shot down by the Supreme Court.

In the debates, Louisiana Senator Bill Cassidy (R) summarized the case for disapproving OSHA’s Volks Rule:

“This regulatory scheme represents a backwards approach to workplace safety, and it is a blatant overreach by the Federal Government.   Under the Occupational Safety and Health Act, employers are required to record injuries and illnesses that occur in the work place and maintain those records for 5 years. The law provides for a 6-month period for which OSHA can issue citations to employers who fail to maintain the records properly. However, it was the practice of OSHA, based on their interpretation of the law, that they were able to issue citations regarding keeping those records properly for the entire 5- year period employers must keep those records…..

“The Circuit Court of Appeals issued a unanimous, three-judge opinion rebuking OSHA’s attempt to file citations past the statute of limitations…. The Volks ruling has since been upheld by the Fifth Circuit Court of Appeals….

“After the court was clear in its ruling, OSHA, in order to negate such ruling and continue issuing citations beyond the 6-month statute of limitations, promulgated this regulation, the Volks rule.   This joint resolution must invalidate the Volks rule. “The Volks rule is a clear violation of the court’s ruling and is in direct contradiction of the 6-month statute of limitations. Only Congress can amend a Federal statute. Article I of the U.S. Constitution is clear. Members of the legislative branch write the law, not the Federal departments and agencies.   Overturning the Volks rule will not—will not—decrease workplace safety. The rule only changes the window during which OSHA can issue citations for recordkeeping violations. This rule is about paperwork violations and not workers’ health or safety.” — Congressional Record, 3-22-17

Senator Cassidy also introduced into the Congressional Record a concurring letter from the Coalition For Workplace Safety, dated March 10, 2017, which read in part:

“At its core, the Volks Rule is an extreme abuse of authority by a federal agency that will subject millions of American businesses to citations for paperwork violations, while doing nothing to improve worker health and safety.”

The 1970 OSHA Power Grab

In 1970, Congress passed the Williams-Steiger Occupational Safety and Health Act and President Nixon signed it into law. Citing the impact of workplace injury on interstate commerce, the act unconstitutionally usurped state and local power and authority over regulating the safety of the domestic workplace. The Act applied to every employer, small and large, in the United States.

Under the Act the Secretary of Labor would publish safety and health standards in the Federal Register, which would have the force of law. Soon after the Act took effect, OSHA published 248 pages of standards with which even small employers were expected to comply.

OSHA compliance officers had the responsibility to ensure employers complied with the standards. The Act gave them the power “to enter without delay and at reasonable times any factory, plant, establishment, construction site, or other area, workplace or environment where work is performed by an employee of an employer; and to inspect and investigate during regular working hours and at other reasonable times, and within reasonable limits and in a reasonable manner, any such place of employment and all pertinent conditions, structures, machines, apparatus, devices, equipment, and materials therein, and to question privately any such employer, owner, operator, agent or employee.”

If the compliance officers found violations during surprise inspections, even small things such as a ladder in need of repair, they could issue citations, fines and compliance orders. Certainly, the Founding Fathers and the 13 States ratifying the Constitution never envisioned that the new government would claim such authority and responsibility.

Furthermore, the Act allowed any disgruntled employee or even a former employee to request an inspection:

“Any employees or representative of employees who believe that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, may request an inspection by giving notice to the Secretary or his authorized representative of such violation or danger. Any such notice shall be reduced to writing, shall set forth with reasonable particularity the grounds for the notice, and shall be signed by the employees or representative of employees, and a copy shall be provided the employer or his agent no later than at the time of inspection, except that, upon the request of the person giving such notice, his name and the names of individual employees referred to therein shall not appear in such copy or on any record published, released, or made available pursuant to subsection (g) of this section….”

The initial implementation of OSHA was extremely tyrannical and resulted in several successful court challenges. However, the basic federal intrusion has never been reversed.