[Congressional Record Volume 150, Number 70 (Tuesday, May 18, 2004)]
[House]
[Pages H3132-H3140]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT OF
2004
Mr. BOEHNER. Mr. Speaker, pursuant to House Resolution 645, I call up
the bill (H.R. 2731) to amend the Occupational Safety and Health Act of
1970 to provide for the award of attorney's fees and costs to very
small employers when they prevail in litigation prompted by the
issuance of citations by the Occupational Safety and Health
Administration, and ask for its immediate consideration in the House.
The Clerk read the title of the bill.
The SPEAKER pro tempore (Mr. Quinn). Pursuant to House Resolution
645, the bill is considered read for amendment.
The text of H.R. 2731 is as follows:
H.R. 2731
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Occupational Safety and
Health Small Employer Access to Justice Act of 2003''.
SEC. 2. AWARD OF ATTORNEY'S FEES AND COSTS.
The Occupational Safety and Health Act of 1970 (29 U.S.C.
651 and following) is amended by redesignating section 32
through 34 as 33 through 35 and inserting the following new
section after section 31:
[[Page H3133]]
``SEC. 32. AWARD OF ATTORNEYS' FEES AND COSTS.
``(a) Administrative Proceedings.--An employer who--
``(1) is the prevailing party in any adversary adjudication
instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $1,500,000 at the time of the adversary
adjudication was initiated,
shall be awarded fees and other expenses as a prevailing
party under section 504 of title 5, United States Code, in
accordance with the provisions of that section, but without
regard to whether the position of the Secretary was
substantially justified or special circumstances make an
award unjust. For purposes of this section the term
`adversary adjudication' has the meaning given that term in
section 504(b)(1)(C) of title 5, United States Code.
``(b) Proceedings.--An employer who--
``(1) is the prevailing party in any proceeding for
judicial review of any action instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $1,500,000 at the time the action addressed
under subsection (1) was filed,
shall be awarded fees and other expenses as a prevailing
party under section 2412(d) of title 28, United States Code,
in accordance with the provisions of that section, but
without regard to whether the position of the United States
was substantially justified or special circumstances make an
award unjust. Any appeal of a determination of fees pursuant
to subsection (a) of this subsection shall be determined
without regard to whether the position of the United States
was substantially justified or special circumstances make an
award unjust.
``(c) Applicability.--
``(1) Commission proceedings.--Subsection (a) of this
section applies to proceedings commenced on or after the date
of enactment of this Act.
``(2) Court proceedings.--Subsection (b) of this section
applies to proceedings for judicial review commenced on or
after the date of enactment of this Act.''.
The SPEAKER pro tempore. The amendment printed in the bill, modified
by the amendment printed in part C of House Report 108-497, is adopted.
The text of H.R. 2731, as amended, as modified, is as follows:
H.R. 2731
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SEC. 1. SHORT TITLE.
This Act may be cited as the ``Occupational Safety and
Health Small Employer Access to Justice Act of 2004''.
SEC. 2. AWARD OF ATTORNEY'S FEES AND COSTS.
The Occupational Safety and Health Act of 1970 (29 U.S.C.
651 and following) is amended by redesignating sections 32
through 34 as sections 33 through 35 and inserting the
following new section after section 31:
``SEC. 32 AWARD OF ATTORNEYS' FEES AND COSTS.
``(a) Administrative Proceedings.--An employer who--
``(1) is the prevailing party in any adversary adjudication
instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $7,000,000 at the time of the adversary
adjudication was initiated,
shall be awarded fees and other expenses as a prevailing
party under section 504 of title 5, United States Code, in
accordance with the provisions of that section, but without
regard to whether the position of the Secretary was
substantially justified or special circumstances make an
award unjust. For purposes of this section the term
`adversary adjudication' has the meaning given that term in
section 504(b)(1)(C) of title 5, United States Code.
``(b) Proceedings.--An employer who--
``(1) is the prevailing party in any proceeding for
judicial review of any action instituted under this Act, and
``(2) had not more than 100 employees and a net worth of
not more than $7,000,000 at the time the action addressed
under subsection (1) was filed,
shall be awarded fees and other expenses as a prevailing
party under section 2412(d) of title 28, United States Code,
in accordance with the provisions of that section, but
without regard to whether the position of the United States
was substantially justified or special circumstances make an
award unjust. Any appeal of a determination of fees pursuant
to subsection (a) of this subsection shall be determined
without regard to whether the position of the United States
was substantially justified or special circumstances make an
award unjust.
``(c) Applicability.--
``(1) Commission proceedings.--Subsection (a) of this
section applies to proceedings commenced on or after the date
of enactment of this section.
``(2) Court proceedings.--Subsection (b) of this section
applies to proceedings for judicial review commenced on or
after the date of enactment of this section.''.
The SPEAKER pro tempore. The gentleman from Ohio (Mr. Boehner) and
the gentleman from New York (Mr. Owens) each will control 30 minutes.
The Chair recognizes the gentleman from Ohio (Mr. Boehner).
General Leave
Mr. BOEHNER. Mr. Speaker, I ask unanimous consent that all Members
may have 5 legislative days within which to revise and extend their
remarks and include extraneous material on H.R. 2731.
The SPEAKER pro tempore. Is there objection to the request of the
gentleman from Ohio?
There was no objection.
Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker the fourth bill we will debate today in this series of
votes is another narrowly crafted bill that addresses a specific
problem that we found in the OSHA law. In short, we strongly believe
that small businesses that face meritless OSHA enforcement actions
should not be prevented from defending themselves simply because they
cannot afford it.
The Occupational Safety And Health Small Employer Access to Justice
Act levels the playing field for small businesses and encourages OSHA
to better assess the merits of the case before it brings unnecessary
enforcement actions to court against small businesses.
Under current law, the Equal Access to Justice Act allows small
business owners to recover attorney's fees if the owner successfully
challenges a citation. However, if OSHA can establish that its
enforcement action was ``substantially justified'' or the result of
``special circumstances,'' small businesses can be refused attorney
fees even if OSHA loses the case in court.
Historically, the law's ``substantially justified'' and ``special
circumstances'' standards have made it easy for OSHA to prevent
recovery under this broad standard, so attempts by small business
owners to recover costs often merely exacerbate the financial harm
caused by OSHA's dubious enforcement actions. In fact, let us look at
some of the records here.
In 2002, OSHA cited 83,760 violations based on its approximately
40,000 workplace inspections. Yet, how many applications were filed for
attorney's fees against OSHA in 2002? That number is eight. How many
were granted? One. Moreover, for the last 25 years, only 1 year has
seen more than 10 applications filed for attorney's fees against OSHA.
When you compare that number to the approximately 80,000 violations
cited every year, you begin to wonder.
We have heard testimony in our committee on this issue, and what we
have found is that the law's ``substantially justified'' and ``special
circumstances'' standards have made it easy for OSHA to deny small
businesses the ability to recovery attorney's fees.
What these numbers tell us is that small businesses can already see
the writing on the wall. They know OSHA has the upper hand; and if the
prospect of recovering attorney's fees is as bleak as it appears, then
why fight the citations at all?
Small employers should not be forced to knuckle under OSHA's
citations and settle up front when they believe they are innocent. This
measure simply forces OSHA to carefully evaluate the merits of its case
against small employers before they bring its case. If OSHA's case is
weak and they bring the case anyway, then the agency is going to have
to pay the attorney's fees if in fact they lose the case.
Employers face relentless competition every day in the face of high
taxes, rising health care costs, and burdensome government regulations.
The last thing they need is a meritless OSHA-related litigation that
could take years to resolve. As we have said earlier today, over the
last 8 months our economy has created 1.1 million net new jobs; 625,000
net new jobs in just the last two months.
We might want to make sure onerous government regulations do not
hamstring small businesses' ability to continue to hire new workers and
compete in our economy. Frivolous litigation kills jobs, and this
measure will help ensure OSHA carefully considers the merits of the
case before they bring enforcement action.
The measure before us is a narrowly crafted commonsense bill that
addresses a specific problem in OSHA, and it deserves the support of
all of our colleagues.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, I rise in strong opposition to H.R. 2731. This bill is
the most
[[Page H3134]]
alarming of the four before us today. By mandating that OSHA pay the
attorney fees of any employer with a total net value of under $7
million and no more than 100 workers if they prevail upon appeal, H.R.
2731 would drastically undermine the enforcement of OSHA's mission.
As I stressed in my opening statement, more than 90 percent of all
private firms in the U.S. would qualify for attorney fees upon
successfully prevailing in an appeal. What could be more universal than
that? H.R. 2731 would have an incredibly chilling effect on
implementation of the act.
What would this bill mean for American workers? It would mean that
unscrupulous employers could risk workers lives with impunity. Focusing
on the issue of worker protection, again, I would like to relate some
very personal testimony delivered at a forum I held on May 12 on worker
deaths, and some of the photos of the people who testified are in front
of us.
Patrick J. Walters, whose photo is on the top row, was 22 years old,
a plumber's apprentice who was literally buried alive in a trench
collapse in June 2002. Patrick had been sent down into a 10-foot deep,
rain soaked trench without any training or safety equipment. Moeves
Plumbing, a Cincinnati-based employer, had been repeatedly cited
already by OSHA over the years for failure to follow basic safety
standards for trench work. Although cited and fined for trench safety
lapses in 1983, 1984, 1985, Moeves Plumbing took no remedial steps.
Clint Daley, another Moeves employee had been buried in 1989 in
circumstances identical to Patrick's. In Daley's case, OSHA agreed to a
settlement based on a promise by Moeves to take required safety action,
an example of that voluntary compliance business. Two weeks before his
death, an OSHA inspector found Patrick and another Moeves employee
working in an unstable, unsafe trench that was 15 feet steep. Again,
OSHA warnings went unheeded by Moeves and this caused certain, but
tragic, results.
After Patrick's death, an attorney for Moeves Plumbing negotiated
down the citation from a willful violation to an unclassified. OSHA
also reduced the fine down to $30,000 to be paid over 4 years.
At the May 12 forum, Patrick's mother, Michelle Marts, wondered
aloud, ``What is it going to take to stop Moeves Plumbing from sending
another boy like our son to his death? Patrick did not have to die this
way. This absolutely could and should have been prevented. We do not
want this to happen to any other family.''
{time} 1615
Joey Israel was a 22-year-old laborer who fell eight stories to his
death from Philadelphia's Victory Building on December 31, 2003.
Employed by HydroProof Systems, he had been promoted from entry-level
employee to laborer only 2 weeks prior to his death. All that is known
for certain is that before careening to his death, Joey had been told
to pull up a 23\1/2\ pound electrical cord hanging from the window.
After repeated phone calls to OSHA to ascertain the status report on
Joey's case, OSHA responded by stating that HydroProof had not violated
any safety rules.
Joey's twin sister, Jaime, insisted upon a personal meeting with the
OSHA investigator. She was told that not one of the eight men who were
on the job the day her brother was killed had been questioned by OSHA
nor had the employer been questioned about the incident. When Jaime
questioned how her brother could have been sent alone some 25 feet up
in the air on this job, without any prior training or interview, she
was told, ``That's the beauty of America.''
Jaime responded at the May 12 forum with the following quote: ``What
an awful thing to be told to a mother who just lost her son and a
sister who just lost her brother. I believe this is the downfall of
America, where, daily, employers risk the lives of untrained men and
women who are doing what they have to do to support their families, to
make a quick buck and, in a sense, kill for profit. My brother lost his
life for a lousy $60 a day, is that what the lives of our loved ones
are worth to their employers?''
Scott Shaw was a 38-year-old husband and father of two young sons who
was killed on September 7, 2002. Scott died when he fell into the
Schuylkill River, moving from the Hopper Barge to the Work Barge. OSHA
investigated and found that Scott's company had committed six serious
violations. One of these violations focused on the fact that one barge
was 8 feet higher than the other. Also, workers had to climb on rubber
tires while jumping from barge to barge. However, OSHA combined these
violations into one citation with six items. OSHA's total fine for
these violations was only $4,950.
His wife, Holly, testified that ``Scott didn't have a life jacket on.
He wasn't required by his company to wear one. There were no life
preservers on the barge. Scott's death was needless. The company Scott
was working for neglected to follow safety regulations.
``As a teacher and as a parent, I know that it is important that a
child understand there are consequences to their actions, and they must
accept responsibility for what they have done. Adults must face their
responsibility, and must be held accountable for their actions. Please
don't let another family suffer as we have. The more that companies are
actually punished, the more they realize they must practice workplace
safety, and must protect their workers.''
I urge my colleagues on both sides of the aisle to understand the
seriousness of these discussions today.
This is the final quarter of the marathon four bills today. I hope
that the fact that they have been packaged together has not caused
anybody not to listen. I hope that they understand that we are talking
about life-and-death matters.
I urge my colleagues to oppose the needless deaths of Americans by
opposing H.R. 2731.
Mr. Speaker, I reserve the balance of my time.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
I will remind us that we are on H.R. 2731, the employer access to
justice. That is what we are going to be debating and voting on for the
next hour.
Mr. Speaker, it is my pleasure to yield 2 minutes to the gentleman
from Michigan (Mr. Smith), my friend.
Mr. SMITH of Michigan. Mr. Speaker, I thank the gentleman very much
for the recognition.
I think it is important to recognize, first, that safe working
conditions are primarily the result of efforts by employers and
employees working together. Safety consciousness probably is the best
key to worker safety.
When we add OSHA, and I was one of Michigan's OSHA commissioners for
4\1/2\ years, I can guarantee my colleagues that OSHA regulations are
some of the most onerous, the most complex legal mandates on business
and very difficult to understand. So, in many cases, low wage inspector
can go out and, trying to read and enforce the regulation, will cite an
employer. If you are a large business, if you are GM or Ford or
Chrysler, you have the legal staff to review and understand that kind
of allegation and maybe come to terms even before it goes to court.
H.R. 2731 levels the playing field for small businesses and
encourages OSHA to have greater fairness, and to provide better access
to examine the merits of the case. This legislation simply says that
OSHA and, therefore, States that adopt OSHA, such as MIOSHA in
Michigan, can arbitrally make the determination that if a case was
``substantially justified'' or the ``result of special circumstances'',
then you do not have to reimburse that small company for attorneys'
fees.
The fairness that was tried to be reached in the first place from
OSHA was saying if it is a frivolous lawsuit, in effect, then OSHA has
a responsibility to reimburse the legal attorneys' fees for that
business. This is especially important to small business.
I would encourage my colleagues to support 2731. Small business is
the key to our economic success in this country, and this simply levels
the playing field to make it fair in a challenge by OSHA to that small
business and the ability of that small business to react.
Mr. OWENS. Mr. Speaker, I yield 2 minutes to the gentlewoman from
California (Ms. Lofgren).
Ms. LOFGREN. Mr. Speaker, I think it is clear that the effect of this
bill, if it were to become law, would be to stall enforcement of
workplace safety measures. It is a back-handed attempt
[[Page H3135]]
to weaken OSHA's enforcement and standards-setting efforts. It would
require the American taxpayer to pick up the entire tab if a company
successfully challenged even one of the citations that OSHA gave,
regardless of whether OSHA's actions were substantially justified.
It is important to note that current law already allows companies to
receive payment if the government's position had no substantial
justification. Think of it this way: If you had 50 citations and one of
the 50 was found wanting, the costs would be shifted over to OSHA, and
so we would be punishing the government every time it loses even a
small part of an overall enforcement effort. This will deter the agency
from enforcing the law.
What is next? Are we going to pay a criminal defendant's legal costs
every time there is an acquittal? I know of no other agency that is
punished for failing to guarantee the outcome of its good-faith
attempts to enforce the law.
OSHA's mission is to protect the safety and health of American
workers. We should not tie its hands and drain its resources as H.R.
2731 does.
I recall several years ago there was a ballot measure in California
to severely impair the ability of California OSHA to enforce California
OSHA regulations. After a very short while, do my colleagues know who
the biggest opponent was of that measure to hurt Cal/OSHA? It was the
Chamber of Commerce in California because they figured out we will pay
more in insurance costs than we will save on compliance costs. It is a
mistake for workers and it is a mistake for business to impair OSHA
enforcement of safety acts.
I urge colleagues to think carefully about this ill-advised scheme
and vote ``no'' on H.R. 2731.
Mr. NORWOOD. Mr. Speaker, I yield to myself whatever time I may
consume.
Mr. Speaker, H.R. 2731 is, once again, a narrow measure with a
clearly targeted and very specific goal to ensure very small employers
the ability to defend themselves against OSHA's superior litigation
position when the small employer believes they are right.
When dealing with OSHA, we now know many small employers are forced
to just simply fold their tent, give up because they simply cannot
afford the price of justice. As we all know, OSHA has a vastly superior
ability to play the litigation game. OSHA has a team of highly skilled,
well-seasoned lawyers at its disposal to pressure a small employer and
a fully stocked staff to support their efforts.
Maybe even more importantly, they do not have to give any
consideration to what the cost of this legal activity may be because
they know that the taxpayers of America will pick up all of their
costs. That is not even a consideration when they determine to take a
small business employer to court, and that is the only determination
for a small businessman to defend himself.
A small employer, in contrast, has to open up his own personal
checkbook, go out and hire legal help, help that most of the time, the
kind of employers we are talking about, they simply cannot afford.
What is more, OSHA litigation is complex, as demonstrated by the
thousands of pages of standards, rules and regulations that OSHA has on
the books. That means small employers are wise to hire an attorney who
specializes in this area of law, adding to the cost that most folks and
small business simply cannot afford. They just say, I will pay the
fine, I plead guilty, I cannot defend myself.
In sum, it all comes down to the most cost-effective alternative. Can
a small employer afford to fight or is it a cheaper business decision
to simply knuckle under and pay the fine, despite believing that OSHA
is as wrong as they possibly could be?
Obviously, Mr. Speaker, we know that the EAJA just does not work when
it comes to the OSHA law. For instance, we know that since the
enactment of EAJA, in only 1 year have more than 10 applications for
attorneys' fees been filed in an OSHA context. In 2003, OSHA collected
over $782 million in penalties, but in 12 of the last 19 years, OSHA's
total EAJA awards have been less than $10,000.
I think, fairly clearly that demonstrates that it does not work. This
does not add up in light of the many complaints Members of Congress
hear from our small business constituents every year; and basically it
is, I have to plead guilty, I am not guilty, but I cannot afford to go
to court; and the cost of going to court is going to be so much more
than the fine, I just give in.
In some 180 other statutes, Congress has supplemented the coverage
offered by EAJA with other fee-shifting statutory arrangements for
attorneys' fees. So we are not suggesting some radical departure from
what has been the norm in Congress. What we are offering instead, Mr.
Speaker, is a small opportunity to level the playing field for small
employers who need all the help they can get, 100 employees or less
with a net worth of $7 million or less.
Mr. Speaker, I said this was a narrow measure, and that is exactly
what it is. In fact, it reduces the coverage of what is considered a
small business under EAJA. Under H.R. 2731, eligibility for coverage is
one-fifth the size of EAJA. This measure could only cover employers
with 100 or fewer employees and those with a net worth not exceeding $7
million. No other employees are even eligible for recovery. So this is
truly a measure for small employers who are the most vulnerable to
OSHA's litigation squeeze.
Mr. Speaker, no one wants OSHA to use taxpayer money to pay
attorneys' fees instead of enforcing the law. That is not our goal.
That is not the purpose of this measure, and that is not what would
result from its passage.
The purpose of H.R. 2731 is simply to force OSHA to think twice
before pursuing expensive and time-consuming litigation where they do
not have to pay anything, but the taxpayers do, in cases of dubious
merit, when it is against very small employers who simply cannot afford
to defend themselves.
Under H.R. 2731, if OSHA does bring these actions and loses, it does
pay attorneys' fees. There is no increased cost. It comes out of OSHA,
and it should come out of OSHA. They should think twice before they
take cases to court knowing that all they have to do is say, we are
going to court and the small business employer has to give in; that is
all.
And as I have said before, if OSHA brings only cases with merit
against small employers, this bill is not going to cost them one red
cent. All they need to do is better evaluate the merits of their
actions and stop using litigation as a way to force employers to say, I
give in.
{time} 1630
I do not believe you, I think I am right, I give in. I just do not
have the money to fight you in court.
I urge my colleagues to vote for passage of H.R. 2731.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield 4 minutes to the gentlewoman from
California (Ms. Woolsey).
Ms. WOOLSEY. Mr. Speaker, first of all I wish to thank the gentleman
from New York (Mr. Owens) for what he has been doing on worker safety
issues all these years. If we would just listen to every word he says,
we would all learn every day from his wisdom. And I thank him also for
the hearings that he held last week. Anybody that sat in those hearings
and listened to those families who had lost a family member to a work-
site tragedy, it would have strengthened their resolve absolutely that
our goal is to strengthen OSHA.
Mr. Speaker, I rise today in opposition to H.R. 2731 because workers
deserve to know that their interests will be represented and
represented fairly by OSHA. As I said earlier today on another bill, we
are not the least bit worried about employers who manage in good faith.
We are worried about the ones that ignore near misses and important
safety standards, employers who know they have a major problem after
the experience of an employee's death or severe injury, but ignore the
problem and carry on business as usual until another fatality or
another severe injury occurs. Those are the employers we are concerned
about.
When workers and their families suffer due to poor safety at the
workplace, they feel angry and they feel betrayed. They are not
protected and they know it. They do not need to feel betrayed further
by their government when they are seeking justice for their original
betrayal. This bill threatens the lives of thousands of workers because
it forces OSHA to consider costs of attorney's fees before deciding
whether or
[[Page H3136]]
not to take action. Putting this unique burden on OSHA may take away
the only recourse many, many employees have to stand up for their
safety or for their families in demanding redress.
Since President Bush took office, it has been clear that he intends
to use OSHA to protect business interests rather than workers' health
and safety. First, he signed legislation overturning workplace safety
rules to prevent ergonomic standards; then he advocated budget cuts for
job safety agencies, such as OSHA and NIOSH. He went further by
suspending 23 important job safety regulations, and the list goes on
and on. This legislation is one more way to weaken OSHA, and it will
make it that much easier for business to avoid OSHA regulations.
If my colleagues really wanted to help workers, they would raise the
minimum wage, and they would do it now; they would extend unemployment
benefits; they would also increase penalties for employers that ignore
safety regulations; and ensure that workers and their families have the
support they need and deserve to address faulty employer practices.
Mr. Speaker, this administration has lost sight of what workers
really need, a safe working environment, a fair wage, and meaningful
reforms in the workplace. I urge my colleagues to join me in opposing
H.R. 2731, which is an unnecessary attack on worker protections.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume
to point out that probably every Member in here should read the GAO
report put out in March 2004. Frankly, President Bush has done an
excellent job in workplace health and safety. The numbers have been
coming down. As the GAO says, and others, they are at historically low
levels. I would say that is probably going in the right direction.
And I say it is going in the right direction because we finally
understand the way you get a healthier and safer workplace is having
cooperation between the employer and the employee and the OSHA. But
when OSHA uses the litigation tactic to force a small employer to admit
to something they do not believe they are guilty of, that does not
promote cooperation.
This is simply about justice and fairness to small business owners.
They are workers too, and they do want to see this legislation passed.
In fact, they involve most of the workers in America today and the
people that work for them. So I would like for us not to sit here and
say that workers do not want to see this legislation passed. That is
simply not true. The majority of workers, the 92 percent that are not
in the unions today, yes, they do want to see this passed. It is unfair
to say they do not. They are working families as much as anybody that
is organized.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, may I inquire as to how much time is left.
The SPEAKER pro tempore (Mr. Quinn). The gentleman from New York (Mr.
Owens) has 19 minutes remaining, and the gentleman from Georgia (Mr.
Norwood) has 17 minutes remaining.
Mr. OWENS. Mr. Speaker, I yield 5 minutes to the gentleman from New
Jersey (Mr. Payne).
(Mr. PAYNE asked and was given permission to revise and extend his
remarks.)
Mr. PAYNE. Mr. Speaker, I rise in opposition to H.R. 2731 because I
believe that H.R. 2731 is a blatant attempt to chill OSHA's exercise in
statutory responsibility to enforce the Occupational Safety and Health
Act by penalizing the agency for every instance in which it attempts to
do the right thing, but perhaps is unsuccessful. I think that this
would certainly dampen people's interest in seeking justice.
Let me just say that as I look at this fourth quarter of these bills
that have come here today, this is just another example of weakening
OSHA from the inside. My colleagues would probably just like to
eliminate it from the outside, but this is the stealth approach.
I think one thing that the other side does well is to give very good
names to these bills. For example, this H.R. 2731, Occupational Safety
and Health Small Employer Access to Justice of 2004. Now, who could be
opposed to the access of justice? However, what does the bill do? It
creates a hindrance for people pursuing justice.
Let us just take a look at the other three. H.R. 2728, Occupational
Safety and Health Small Business Day in Court Act of 2004. Nothing is
better than your day in court. It is the American way. But what does it
do? It delays and weakens enforcement. It does not do the right thing.
Then H.R. 2729, once again, sounds great, Occupational Safety and
Health Review Commission Efficiency Act of 2004. And what does 2729 do?
It makes it more difficult. It enlarges the commission. It creates
legal preference. It makes it a little more complicated.
And let us take a look at H.R. 2730, Occupational Safety and Health
Independent Review of OSHA Citations Act of 2004. Sounds good. What
does it do? It creates conflict with the Secretary. It creates another
board that has the right to interpret the Secretary's rulings. We might
as well eliminate the Secretary. I'll bet my colleagues would, if they
could, because they really want to eliminate OSHA.
And this is not new because this is the way these bills go. Remember
the Workers Paycheck Protection Act? Everyone loves to have their
paycheck protected, but what did it do? It made it more difficult for
people who wanted to pay union dues.
Let us look at the TEAM Act. That is the way we move ahead. Companies
that have employees that work in teams together, we move forward, we
are more productive, we are going to make the best product. But what
does the bill do? It has the employer select the negotiating team for
benefits.
Take a look at the Family Time Flexibility Act. Fantastic. Everyone
likes flexibility and likes to be with their family. What does it
really do? It replaces overtime with comp time when the employer wants
to give it to the employee.
The Truth in Employment Act. We all love truth in employment. What
does it do? An employer can fire or refuse to hire people if they think
they have union sympathies.
The Fairness for Small Business and Employees Act. Since 85 percent
of our businesses are small businesses, we certainly want fairness for
small businesses and employees. But what does the act do? It requires
the NLRB and OSHA to pay fines. It is sort of the forerunner of H.R.
2731 that we are here for today.
The Sales Incentive Compensation Act. That is why people work hard,
because they want to be compensated. They work hard, they are doing it
the American way, but what does it do? It takes overtime pay away from
inside workers.
Rewarding Performance in Compensation. We all want to be rewarded for
our performance. Once again, a beautiful title. What does it do? It
merely reduces overtime because it excludes bonuses in the calculation
and makes it more difficult.
So as we listen to these great apple pie-named bills, it seems like
the nicer they sound, the worse they are. Please do not do a Greatness
to Donald Payne bill, because I would hate to hear what it would really
do at the end of the day.
So I would just like to say, I urge my colleagues to reject this H.R.
2731, because once again, in my opinion, it is going in the wrong
direction.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
I think it is time again to remind the body we are discussing H.R.
2731, the Small Employer Access to Justice Act. What that means is that
working families, the majority of the working families in my
colleagues' districts that happen to be in small businesses deserve
access to justice.
It is clear to everyone that OSHA's attorneys know well when they
have a weak case. Nobody has to tell them. They know it. And they know
under current law they might as well pursue the case and push the
employer into settlement, even if they know they may lose the case in
court. So what they are basically saying to that working family who
owns a small business is, you either pay this fine and say you are
guilty, or we are going to make sure you pay a lot more in defense
fees, regardless of who wins in court.
Mr. Speaker, only in these cases and only when an employer is very
small does H.R. 2731 suggest that OSHA use some degree of discretion
before instituting litigation.
Mr. Speaker, I reserve the balance of my time.
[[Page H3137]]
Mr. OWENS. Mr. Speaker, I yield 3 minutes to the gentlewoman from New
York (Mrs. McCarthy).
Mrs. McCARTHY of New York. Mr. Speaker, I rise in strong opposition
to H.R. 2731.
Mr. Speaker, no one should be fooled by what my colleagues on the
other side of the aisle have named this bill. This is not a bill about
safety and health or access to justice. This bill is about turning
Federal law on its head and restricting an employee's due process and
access to justice.
This misguided bill would require OSHA to pay attorney's fees and
costs in any case in which it did not prevail, regardless of why the
agency did not prevail, and even if OSHA is justified in bringing the
action.
Normally, fees and costs are awarded to the prevailing party
defending against a frivolous claim. This bill awards fees to
employers, even if the claims of their failure to protect their
employees has merit. I think this, personally, is disgraceful.
Placing the burden on OSHA to pay attorney's fees for any case they
lose would be a great incentive for OSHA to stop bringing claims all
together. We see now the reason the other side brought this bill up. Do
you see, Mr. Speaker? This means OSHA will be paralyzed to do its job.
American workers will be the ones to suffer, through injuries on the
job or even through death. In the year 2000, the last year we had these
statistics, 4.7 million injuries happened in this country. We had over
5,500 deaths. And these are added to that.
This bill places a higher priority on the compensation of employees
than protecting American workers. In Federal law, we normally award
fees and costs to those defending against frivolous lawsuits.
{time} 1645
The reason is we want to discourage cases without merit from having a
day in court. This bill aims to discourage cases with merit from having
their day in court. This is an assault on not just the American worker
but the American system of due process and justice as well.
Those on the other side want to eliminate OSHA's enforcement powers
by making them pay fees and costs. What is next, Mr. Speaker? Will the
other side create a private right of action and ask injured employees
to pay fees and costs in valid claims themselves?
Mr. Speaker, will it be, Congratulations, you were right, here is
your award for your injury, but you have to pay the employer who
injured you for the costs of showing up? I worry about even saying
this, out of concern the other side will take me up on it.
This is a bad bill. It ties OSHA's hands and American's workers lose
their due process and day in court. This is not limited to small
businesses. H.R. 2731, despite its stated intent to apply to small
businesses, achieves broad coverage in employer requirements. The
Bureau of Statistics data for the first quarter of 1998 showed that
there were over 6.5 million private sector establishments with 99 or
fewer employees, employing 55 million workers, 54 percent of the
private sector workforce. So even though we are saying we are doing
this for small businesses, it is over 54 percent of our workforce.
Mr. Speaker, we can do better. We must do better. We have to make
sure that our workers of this country are protected. We care about our
small businesses. Everyone cares about small businesses, but going the
way we are going now on tying OSHA's hands to prosecute those that are,
in my opinion, having unsafe workplaces is not right. We should defeat
this bill. I ask for a ``no'' vote on H.R. 2731.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, my opinion is it is shameful that there would be anyone
in here who would not want to support working families who happen to be
small business owners, which are the majority of people in our
districts, so they can have equal access to justice when the big arm of
the Federal Government slams down on them.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield 4 minutes to the gentleman from New
Jersey (Mr. Andrews).
(Mr. ANDREWS asked and was given permission to revise and extend his
remarks.)
Mr. ANDREWS. Mr. Speaker, I say to the gentleman from Georgia (Mr.
Norwood) who said that any Member here who does not support the working
families who run small businesses should be ashamed of themselves, the
gentleman is right. We all should support such individuals, and that is
what the law does now.
The law says if someone owns a business and OSHA brings a specious or
frivolous claim, that they can recover their attorney's fees now. That
is the law. What this bill does is go far beyond the law, and it says
to OSHA, if you are not sure you are going to win the case, you better
not bring it. If you are not certain you are going to win the case, you
are going to have to pay the attorney's fees of the person you are
suing.
So if I were the person running OSHA, Mr. Speaker, and my personnel
came to me and said there is a claim we want to file against a company
that digs trenches that are sometimes unsafe and there was a collapse
of a trench last year and a guy died, I would ask them, Are you sure
you are going to win the case? And if they are competent and honest
attorneys, their answer would be we are not sure because it may be the
defense that the trench was constructed properly, or it may be a
defense that the worker acted in a fashion that contributed to the
accident, or there may be some other defense.
The law today says if OSHA brings a frivolous and unsubstantiated
claim and loses, then OSHA must pay the counsel fees of the company
that they sue.
Now the majority has said that law is insufficient to get the job
done because very few claims have been paid out. I wonder if the reason
very few claims have been paid out is because the huge majority of
claims that OSHA has brought have been justified, have been heard by a
court and have been determined not to be substantially unjustified.
I would respectfully suggest to the majority that if the majority
wishes to make the standard easier for a business that is sued to get
over, they should look at amending that statute or perhaps look at the
definition of ``substantially unjustified.'' What this says is if OSHA
sues and loses, it pays. So the only cases that OSHA is going to bring
are the ones that they are certain they are going to win. This is
effectively and functionally a repeal of the OSHA statute because if
the agency brings a claim that it is not sure that it is going to win
and if it loses that claim, it has to pay fees that will eventually
dwarf and overwhelm its budget, and it will not pursue the claims at
all.
The twisted logic of this bill is if OSHA makes a misjudgment and
files a case that it loses on a close call, it loses not only the case,
but it loses its ability to go after dozens or hundreds of other cases
because the resources that it would have devoted to investigating and
prosecuting those cases would be otherwise spent.
If OSHA brings a frivolous or unjustified case against a small
business, it should pay the counsel fees of the small business. That is
the law today. This bill goes far beyond that and says to OSHA you can
only bring the cases you are sure you are going to win. That will
radically cut back on the ability of this agency to protect the
American worker. I fear that is what the bill is intended to do, and
that is why we ought to oppose it.
Mr. BOEHNER. Mr. Speaker, I yield myself such time as I may consume.
Mr. Speaker, the gentleman from New Jersey (Mr. Andrews) talks about
how employers can recover the cost of their legal fees if in fact they
win. But the fact is, and the gentleman knows and we well know, in the
last 23 years, 23 years, exactly 37 employers had their attorney's fees
returned to them.
I will tell Members why that is the case, and that is because under
the Equal Justice Act and the law around OSHA, unless OSHA was
completely out of bounds, employers tend to lose. So here is what
happens: employers do not even try.
To give another example of why employers are not seeking legal fees
from OSHA, it goes to the fact that if I am a small employer, which I
was, am I going to put my capital, my assets, on the line, even if I
think I am right, to take on the Federal Treasury and the
[[Page H3138]]
Federal Government? I am probably just going to suck it up, go to
court, pay the fine, and go on because I am not going to put my company
at risk. I am not going to put all of my employees at risk, which is
exactly what most small employers in America face today. That is why
over the last 23 years only 37 employers ever got any attorney's fees
from OSHA.
Members can put themselves in the position of that small employer
looking up at the Federal Government and the Federal Treasury and
mountains of lawyers. I would not take that risk. I do not blame them
for not taking the risk.
All we say in this bill is if OSHA brings litigation against a small
employer of 100 employees or less with a capital of less than $7
million, and OSHA loses, the small employer ought to have his
attorney's fees covered.
I do not believe that this will reduce the enforcement of OSHA in any
way, shape or form; but I do believe it will cause OSHA to consider the
strength of that agency, the power of the Federal Government, consider
all of that before they come down on some poor small employer who is
trying to do his best to protect the health and safety of his
employees.
But I do not think it is fair under the current system and the
current structure that we have to look up, and to take 2002, for
example, one employer, one employer in all of America got his
attorney's fees returned to him. One. There were 80,000 citations
issued by OSHA, one employer got some attorney's fees returned to him.
It is not fair.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield such time as he may consume to the
gentleman from Ohio (Mr. Kucinich), the distinguish candidate for
President.
Mr. KUCINICH. Mr. Speaker, I rise today in strong opposition to H.R.
2731, the misnamed and ill-considered Occupational Safety and Health
Small Business Access to Justice Act. In 2002, 5,524 workers were
killed on the job because of dramatic injuries. In 2002, almost 60,000
workers died from occupational diseases. And in 2002, over 5 million
workers were injured or fell ill on the job.
For some perspective, approximately 56,000 Americans died between
1958 and 1975 in the Vietnam War. The American workplace leads to the
same number of deaths in a single year. With this in the background, it
is mystifying to me that today we are considering a bill to
significantly weaken OSHA and to make the workplace less safe, as H.R.
2731 would do by requiring OSHA to pay attorney's fees in any case in
which it does not prevail.
The effect of this bill would be to discourage OSHA from bringing
enforcement actions against dangerous workplaces. OSHA would have to
calculate the odds of winning against the cost to its budget if it
loses. That would render the Federal cop on the workplace safety beat
timid.
Let us be clear, no one would suggest the government should pay the
attorney's fees of criminal defendants merely because they have been
acquitted. So just as the concept underlying this bill would make our
streets more dangerous if applied to the criminal code, something no
one in this House would support, it would make our workplaces more
dangerous if applied to the OSHA law.
I ask my colleagues, should the level of protection the law provides
Americans vanish the moment the workers walk from the street to the
shop room floor? That is the concept promoted by this bill. And make no
mistake, although current law may not consider deaths resulting from
willful disregard of basic safety procedures a criminal matter, such
shameful instances are absolutely criminal.
I think it is clear this bill is designed to weaken enforcement of
workplace safety laws, to further distance exploited workers from the
justice they and their families deserve under the law, and it will
severely handicap OSHA by discouraging it to cite employers unless the
agency is utterly certain it will win.
Given the importance of OSHA's core mission of protecting workers and
workers' lives, and that workers have no private right of action under
OSHA, a fact that again mirrors the criminal code that rejects the
rationale underlying this bad bill, there is every reason to be more,
not less, cautious with fundamentally altering the nature of OSHA
enforcement. But H.R. 2731 does not make a cautious change. It will
severely endanger the safety of American workers; and as such, it
should be defeated.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
As usual, when the gentleman from New Jersey (Mr. Andrews) takes the
floor, he gives Members pause to think a moment. I have wondered if he
is asking the right question, however. When this bill becomes law, it
seems to me the question that OSHA should ask is not will we win the
case, but are we right. Do we actually have a case where a citizen
violated the law, and do we actually have substantial proof to take
into court whether that citizen violated the law?
{time} 1700
I would hope that when this bill becomes law that OSHA will take
cases that they deem meritorious, cases in which they think and believe
strongly that they are right. What we are after is having them think
carefully about cases that do not have a lot of merit but it is just a
good way to win.
Mr. Speaker, I reserve the balance of my time.
Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
I want to thank the members of the minority on the committee for
their work on this bill. I want to thank the majority for giving us an
opportunity to talk about the very real problems that are faced by
workers in the workplace.
Mr. Speaker, I submit for the Record an item titled Summary of the
AFL-CIO Death on the Job Report, and the second item for the record,
Profile of Workplace Safety and Health in the United States.
Summary of the AFL-CIO Death on the Job Report
The report is a national and state-by-state profile of
worker safety and health in the United States. A combination
of too few OSHA inspectors and low penalties makes the threat
of an OSHA inspection hollow for too many employers. Millions
of workers are still left with no OSHA coverage.
Here are some of the ``highlights'' of the report:
15 workers were fatally injured and more than 12,800
workers were injured or made ill each day during 2002. These
statistics do not include deaths from occupational diseases,
which claim the lives of an estimated 50,000 to 60,000
workers each year.
A 62 percent increase in the number of trench fatalities,
from 33 in 2002 to 53 in 2003.
Fatal injuries among Hispanic or Latino workers decreased
about 6 percent, although the 840 fatalities recorded for
Hispanic workers is the second-highest annual total for the
population. States that saw an increase in the number of
Hispanic worker fatalities in 2002 include Alabama, Arkansas,
Florida, Idaho, Indiana, Maine, Maryland, Nebraska, New
Jersey, North Carolina, Pennsylvania, Tennessee, Virginia,
Washington and Wyoming.
The number of fatal work injuries among foreign-born
Hispanic workers increased to 577 in 2002 from 527 in 2001.
Musculoskeletal Disorders continue to account for more than
one-third of all injuries and illnesses involving days away
from work and remain the biggest category of injury and
illness. The occupations that reported the highest number of
MSDs involving days away from work in 2002 were nursing aides
and orderlies (44,421); truck drivers (36,814); and laborers,
nonconstruction (24,862).
As documented in a December 2003 New York Times series,
prosecutions of recklessly negligent employers are extremely
rare. Of the 170,000 workplace deaths since 1982, only 16
convictions involving jail time have resulted--although 1,242
cases involving work deaths were determined by OSHA to
involve ``willful'' violations by employers (violations in
which the employer knew that workers' lives were at risk).
Penalties for significant violations of the law remain low.
In fiscal year 2003, serious violations of the OSH Act
carried an average penalty of only $871 ($856 for federal
OSHA, $885 for state OSHA plans).
2,240 federal and state OSHA inspectors responsible for
enforcing the law at 8.1 million workplaces. At its current
staffing and inspection levels, it would take federal OSHA
106 years to inspect each workplace under its jurisdiction
just once.
Between FY 1999 and FY 2003 the number of employees who
work in workplaces inspected by federal OSHA inspections
decreased by nearly 12%. The average number of hours spent
per inspection also decreased between FY 1999 and FY 2003,
from 22 to 18.8 hours per safety inspection and from 40 to
34.7 hours per health inspection. The number of citations for
willful violations decreased from 607 in FY 1999 to 391 in FY
2003. The average penalty per violation and per willful
violation increased in FY 2003 from the FY 2002
[[Page H3139]]
level, while the average penalty per serious violation
decreased to its lowest level since 1999.
After three and a half years under the Bush administration,
rulemaking at OSHA and MSHA has virtually ground to a halt.
In December 2003, the administration published its latest
semiannual regulatory agenda, which sets forth its regulatory
priorities and plans for the coming year. Having already
withdrawn 22 pending OSHA regulatory actions from its
regulatory agenda, in its May 2003 regulatory agenda the Bush
administration withdrew the glycol ethers standard and the
tuberculosis standard, leaving few major initiatives on the
regulatory schedule.
OSHA still has taken no action on the Employer Payment for
Personal Protective Equipment standard, which has been
through the rulemaking process and is ready for final action.
The only major regulations still on the regulatory agenda
are for silica, beryllium and hearing conservation for
construction workers. But there is no commitment for OSHA to
propose these rules. This will be the only administration in
history not to issue a major safety and health regulation
during its four years in office.
17 MSHA standards to improve safety and health for miners
have been withdrawn, including the Air Quality, Chemical
Substances and Respiratory standard.
Adjusting for inflation, the FY 2005 proposed OSHA budget
represents a $6.5 million cut over FY 2004 appropriations.
The FY 2005 OSHA budget proposes increasing programs for
voluntary compliance with employer assistance while cutting
training and outreach programs for workers and freezing
standard-setting and enforcement programs. At OSHA, the
president proposes to cut worker safety training programs by
65 percent and to shift these funds to employer assistance
programs.
Since we have had a running commentary here about staying on the
point, I would like to comment directly on H.R. 2731 by quoting from
the Brotherhood of Teamsters objections:
``Finally, we oppose H.R. 2731, the Occupational Safety and Health
Small Employer Access to Justice Act, which would require that OSHA,
the taxpayer, pay the legal costs when it loses a case against a small
business that prevails in administrative or judicial proceedings,
regardless of whether the government's position was substantially
justified. We view this as another effort to impede OSHA's and the
Department's efforts to enforce the law and provide an avenue for
workers to seek redress.
``We see no justification for such an arbitrary departure from the
current practice of each party paying for its own litigation costs for
only one class of public prosecutions. We know of no other agency,
charged by statute to enforce the law, which is impeded from fulfilling
its responsibility with respect to a meritorious complaint because it
cannot guarantee the outcome.''
If OSHA is forced to guarantee the outcome, it ties OSHA's hands and
will rob workers of protections by discouraging OSHA from executing its
required responsibilities. Like all of the other items in this marathon
package, which I call the More Injuries and More Death Marathon, it
stacks the deck against the workers and in favor of the employers.
Mr. Speaker, I yield back the balance of my time.
Mr. NORWOOD. Mr. Speaker, I yield myself such time as I may consume.
I think it is probably important at this time to remind the Members
that this debate and this bill is very narrowly tailored. It is H.R.
2731, the Occupational Safety and Health Small Employer Access to
Justice Act.
It is just this simple: If you have working families in your district
that are running small businesses, we are trying to give them an equal
playing field, a level playing field with the Federal Government. If
you have a district where there is no small business, then you do not
have to worry about this. It will not matter how you vote. But I ask
all of my colleagues to level the playing field so little people have a
little chance against the Federal Government and OSHA when they come
down with all their battery of lawyers.
Mr. BLUMENAUER. Mr. Speaker, unfortunately, this Congress has
repeatedly undermined protections for the American workforce, shifting
emphasis from employees to employers. The four bills brought to the
House floor today are the most recent examples that hinder the efficacy
of the Occupational Safety and Health Administration (OSHA), taking
away protections from the workers that need them most, and shielding
businesses from government oversight.
Taken together these bills:
Allow businesses to indefinitely delay the reparation of health and
safety violations.
Needlessly expand the Occupational Safety and Health Review
Commission, allowing the administration to stack it with partisans who
may work to undermine basic worker protections.
Strip OSHA of the power to issue authoritative interpretation of
regulations, enabling more companies to violate safety and health
hazards without facing repercussions.
Require OSHA to pay attorney fees and costs even in cases in which
the federal government was found to be ``substantially justified'' in
pursuing the action. This will create a deterrent for complaints
against employers.
Rather than ``reform,'' these four pieces of legislation weaken OSHA
and undermine Congress's original intent when OSHA was enacted in 1970.
These bills were introduced under the guise of creating economic
competitiveness. Undermining the health and safety standards does not
make Americans more competitive. Americans pride themselves in having
the greatest workforce in the world. How can we enhance working
conditions of workers abroad in trade agreements and other
international pacts when we erode basic health and safety protections
for our own workforce? Americans deserve a safe and healthy workplace.
Limiting OSHA, the agency created to ensure workers receive these basic
rights, will do nothing to advance the cause.
Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise in opposition to this
bill, H.R. 2731, the ``Occupational Safety and Health Review Commission
Efficiency Act of 2004.''
First, I would like to point out a misconception that has been
propagated by our friends on the other side of the aisle. Mistakenly,
the Occupational Health and Safety Review Commission under the Act
(OSHRC under OSHA) has been likened to the ``plaintiff'' in a safety
and health citation proceeding.
The reason why our friends on the other side of the aisle have
brought this package of four bad proposals to the floor is because they
hold true this misconception--that OSHA, in adjudicating the citations
that it issues for violations by employers, is a plaintiff. The
technical definition of a ``plaintiff,'' for procedural purposes, is
the party that initiates a lawsuit, and a ``complainant'' refers to one
who makes the complaint in a legal action or proceeding. However,
because OSHA is the agency responsible for enforcing regulations that
relate to occupational health and safety, for making our workplaces
safe, and for making businesses--regardless of the size or net worth--
accountable for the conditions in which they place their workers, OSHA
is a conduit and the worker is the real Plaintiff, Mr. Speaker. The
worker is the party that has relied upon her employer to comply with
the law to their detriment and loss. The worker is the party that has
lost wages, life, or a limb. The worker is the party without which the
employer ceases to do business. Finally, the worker is the party for
whom the OSHA regulations were drafted, passed, and promulgated.
Therefore, it is our duty as legislators to do everything in our power
to protect them without creating a substantial or unreasonable hardship
for the employers.
Again, I oppose H.R. 2731, the ``Occupational Safety and Health Small
Business Day in Court Act of 2004.'' This bill would amend the
Occupational Safety and Health Act of 1970 to provide for the award of
attorney's fees and costs to employers who prevail in adversary
adjudication arising from a citation issued under OSHA. Under the guise
of protecting businesses that have 10 or fewer employees and up to $7
million in net worth--i.e., smaller businesses, this legislation
irrationally slaps OSHA on the hand every time it loses in court. Let
us not forget, OSHA is a regulatory and an enforcement agency; it is in
the business of adjudicating citations of health and safety violations.
By imposing such a burden on the agency responsible for keeping our
worker safe, we will discourage it from bringing the smaller cases to
court and from bringing the cases about which it feels comfortable but
not certain to court for fear of having to pay the employer who
prevails. One of the baneful effects of this legislation will be to
chill the issuance of meritorious health and safety citations in close
cases no matter how grave the injury or loss was to the employee,
substantially weakening OSHA's enforcement functions.
Finally, because businesses with no more than 100 employees comprise
97.7 percent of all private sector businesses, a great deal of these
entities have a higher rate of fatal occupational injury than do those
that have 100 or more workers. Passage of H.R. 2731 will make numerous
workers around the nation vulnerable to unsafe or potentially unsafe
health and safety conditions.
The U.S. Chemical Safety and Hazard Investigation Board (CSB), that
makes recommendations to OSHA and EPA, cited several tragic accidents
that were caused by uncontrolled reactive hazards because it is one of
the largest petrochemical industry center. Since 1980, there have been
more than 28 serious reactive chemical accidents in Texas. For example,
on July 5, 1990, 17 workers
[[Page H3140]]
were killed when a 900,000-gallon chemical waste tank exploded at a
plant east of Houston. Furthermore, three of the five costliest
reactive accidents occurred in Texas or Louisiana with combined
property damages in excess of $210 million.
Dangerous conditions exist that threaten the lives of people who
simply want to make a living. The policy that is proposed in H.R. 2731
ignores the need to hold employers to a commitment to achieve and
maintain a safe and healthy workplace.
Mr. Speaker, again, I oppose this bill and urge my colleagues to
support our workers.
Mr. BACA. Mr. Speaker, I rise in opposition of all four of the OSHA
bills under consideration today. Republicans are trying to say that our
country's laws are the cause for the off-shoring of American jobs. This
is not only untrue, but it's shameless to accuse the few protections
that exist for our nation's workers as the cause for their jobs being
shipped overseas.
While the Republican Chairman of the Ways and Means Committee is busy
writing an FSC/ETI tax cut bill that will give tax breaks to companies
that move to China or India, his Republican colleagues try to confuse
people on the reasons why jobs are leaving main street and being sent
to mainland China. The face is that we are losing jobs because of the
failed policies of this administration. The compassionate conservatism
of this administration has cost us 3 million jobs. Please end the
compassion!
President Bush's top economic advisor has even proudly said that
sending American jobs overseas is a good thing. Well, I for one will
not let them confuse the issue. We cannot let Republicans say that the
way to ease the competitive disadvantage to third world countries like
China or Brazil is to adopt their labor standards. That type of
thinking would take boys and girls out of the classroom and into the
coal mine.
These four anti-worker safety bills would substantially weaken worker
health and safety laws and hurt our workers. H.R. 2728 weakens
enforcement of workplace health and safety regulations by dragging out
the date for imposing penalties. It also drags out the date by which
corrective action must be taken to mitigate the health or safety
hazard.
H.R. 2729 weakens worker protections by expanding the membership of
the commission and flooding it with partisan appointees that agree with
the President's anti-worker agenda. This commission has had three
members since it was established in 1970. There is no reason to expand
it or to allow a minority of the commission to make decisions. Both
these changes make no sense whatsoever.
H.R. 2730 would undermine the OSHA enforcement functions by
encouraging challenges to Labor Department rules and interpretations.
H.R. 2731 would put the health and safety of thousands of workers at
risk by encouraging lawbreakers to fight any worker safety violations
in court. OSHA settles or wins the vast majority of its enforcement
cases; there is no reason to assume employers need to be protected from
an overzealous agency. The bill is one-sided. If OSHA wins, the
employer does not have to pay OSHA's expenses. The real loser under
this legislation is the taxpayer and American workers.
As you can see, all four bills are anti-worker laws. The only way
they can justify them is to trump up charges that it is these worker
protection laws that are costing us jobs. This is false and worse yet,
it is a lie.
Mr. Speaker, I urge my colleagues to oppose all four of the anti-OSHA
bills.
Mr. HOLT. Mr. Speaker, I rise in opposition to H.R. 2731,
Occupational Safety and Health Small Employer Access to Justice Act.
This bill changes current law to permit the awarding of attorney's fees
and expenses to a small employer who prevails in an administrative or
judicial proceeding against the Occupational Safety and Health
Administration (OSHA), regardless of whether the position of OSHA was
``substantially justified.''
This bill treats OSHA differently than all other federal agencies.
The bill holds OSHA to higher standard with regard to the payment of
the opposing party's attorney's fees than any other agency.
Like most Federal agencies, OSHA is subject to the Equal Access to
Justice Act (EAJA). Under EAJA, if the government's position is not
``substantially justified,'' the government must pay the prevailing
party's fees and costs. According to information provided to then-
Chairman Goodling in 1999, from FY 1981 through FY 1998, there were 68
applications for fees under EAJA by employers involving OSHA
complaints. 41 of those applications were denied and 27 were granted.
In FY 1999, there were 12 applications filed, of which 2 had been
denied, 3 had been granted, and 7 were still pending at the time the
information was provided. There is no evidence that OSHA has engaged in
reckless prosecutions or that it should be singled out for a higher
standard than all other Federal agencies.
The likely consequences of this change is that OSHA would be less
likely to issue complaints against those employers, more safety and
health violations will go uncorrected, and, consequentially, more
workers may be injured or killed.
This bill places employers' convenience over the safety and health of
workers. There is no private right of action under the OSH Act--if OSHA
fails to enforce the law, workers have no other recourse. In effect,
H.R. 2731 places a higher priority on compensating employers for legal
fees than on protecting the safety and health of workers.
Mr. Speaker, today we should be talking about how to protect our
workers not endanger them. 15 workers were fatally injured and more
than 12,800 workers were injured or made ill each day during 2002.
These statistics do not include deaths from occupational diseases,
which claim the lives of an estimated 50,000 to 60,000 workers each
year. This bill will cause the number of worker deaths to go up, not
down.
We should be discussing giving OSHA the proper funding to do its job.
Between FY 1999 and FY 2003, the number of employees who work in
workplaces inspected by federal OSHA inspections decreased by nearly
12%. The average number of hours spent per inspection also decreased
between FY 1999 and FY 2003, from 22 to 18.8 hours per safety
inspection and from 40 to 34.7 hours per health inspection. Adjusting
for inflation, the FY 2005 proposed OSHA budget represents a $6.5
million cut over FY 2004 appropriations.
The FY 2005 OSHA budget proposed increasing programs for voluntary
compliance and employer assistance while cutting training and outreach
programs for workers and freezing standard-setting and enforcement
programs. At OSHA, the president proposes to cut worker safety training
programs by 65 percent and to shift these funds to employer assistance
programs. These are the problems we should be addressing today, rather
than debating H.R. 2731. I ask my colleagues to oppose this bill.
Mr. SAM JOHNSON of Texas. Mr. Speaker, I would like to express my
support for the legislation introduced today by my colleague from
Georgia.
I think that all 4 of Mr. Norwood's bills on the floor today will
improve workplace safety, level the playing field for small businesses,
and ensure that employees and employers are treated fairly.
H.R. 2731 encourages OSHA to really look at the merits of a case
before it brings unnecessary enforcement actions to court against small
businesses.
Current law does allow small business owners to recover attorney's
fees if they successfully challenge a citation
But in the real world of OSHA, this simply does not work for small
businesses. In the last 23 years, small business employers have been
able to recover costs from OSHA only 37 times!
Last year alone, only one employer was awarded attorney's fees,
despite more than 80,000 citations issued by OSHA.
H.R. 2731 limits its scope to small businesses with 100 employees or
less and less than $7 million in net worth, thereby assuring targeted
and meaningful relief to those businesses that are least able to cope
with these hefty and ongoing litigation costs. This reform is necessary
for the vitality of America's small businesses and the job security of
America's workers.
Again, I applaud my colleague from Georgia for introducing this much
needed legislation and I look forward to seeing it pass today.
Mr. NORWOOD. Mr. Speaker, I yield back the balance of my time.
The SPEAKER pro tempore (Mr. Quinn). All time for debate has expired.
Pursuant to House Resolution 645, the previous question is ordered on
the bill, as amended.
The question is on the engrossment and third reading of the bill.
The bill was ordered to be engrossed and read a third time, and was
read the third time.
The SPEAKER pro tempore. The question is on the passage of the bill.
The question was taken; and the Speaker pro tempore announced that
the ayes appeared to have it.
Mr. NORWOOD. Mr. Speaker, on that I demand the yeas and nays.
The yeas and nays were ordered.
The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further
proceedings on this question are postponed.
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