[Congressional Record Volume 151, Number 93 (Tuesday, July 12, 2005)]
[House]
[Pages H5698-H5706]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT OF 
                                  2005

  Mr. BOEHNER. Mr. Speaker, pursuant to House Resolution 351, I call up 
the bill (H.R. 742) to amend the Occupational Safety and Health Act of 
1970 to provide for the award of attorneys' fees and costs to small 
employers when such employers prevail in litigation prompted by the 
issuance of a citation 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 text of H.R. 742 is as follows:

                                H.R. 742

       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 2005''.

[[Page H5699]]

     SEC. 2. AWARD OF ATTORNEYS' FEES AND COSTS.

       The Occupational Safety and Health Act of 1970 (29 U.S.C. 
     651 et seq.) is amended by redesignating sections 32, 33, and 
     34 as sections 33, 34, and 35, respectively, and by inserting 
     after section 31 the following new section:


                  ``Award of attorneys' fees and costs

       ``Sec. 32. (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 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) shall apply 
     to proceedings commenced on or after the date of enactment of 
     this section.
       ``(2) Court proceedings.--Subsection (b) shall apply to 
     proceedings for judicial review commenced on or after the 
     date of enactment of this section.''.

  The SPEAKER pro tempore. Pursuant to House Resolution 351, 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 on H.R. 742.
  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 is another narrowly 
crafted bill that addresses a specific OSHA problem. 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 a 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 attorneys' 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 attorneys' 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 
exacerbate the financial harm caused by OSHA's dubious enforcement 
actions.
  Let us look at some of the facts. In 2004, OSHA cited 86,708 
violations based on its nearly 40,000 workplace inspections. Yet, how 
many applications were filed for attorneys' fees against OSHA in 2004? 
That number is four. Yes, exactly four. How many were granted? Three. 
Three. Moreover, for the last 25 years, only 1 year has seen more than 
ten applications filed for attorneys' fees against OSHA. Now, when you 
compare that number to the more than 80,000 OSHA violations cited every 
year, you start to wonder. We heard testimony in our committee on this 
issue, and what we 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 recover attorneys' fees.
  What these numbers tell us is that small businesses can already see 
the writing on the wall. They know that OSHA has the upper hand, and if 
the prospect of recovering attorneys' fees is as bleak as it appears, 
then why fight the citation at all? Small employers should not be 
forced to knuckle under to OSHA citations and settle up front when they 
know and believe that they are innocent. This measure simply forces 
OSHA to carefully evaluate the merits of its cases against small 
employers before they bring the case. If OSHA's case is weak, and they 
bring the case anyway, then the agency will have to pay attorneys' 
fees, and rightly so.
  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. Last week, the Labor Department reported 
that more than 3.7 million new jobs have been created since May of 
2003. We want to make sure that 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 that OSHA carefully considers the merits of 
its case before they bring an enforcement action.
  The measure before us is, again, narrowly crafted and a commonsense 
bill that addresses a specific problem in the OSHA law. It passed the 
House last year and deserves the support of all of our Members.
  Mr. Speaker, I reserve the balance of my time.
  Mr. OWENS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, this is the worst of all of the OSHA bills before us 
today. It would treat OSHA differently than any other Federal agency. 
Under the Equal Access to Justice Act, if any agency's position is not 
``substantially justified,'' the government must pay the opposing 
party's attorneys' fees. This bill says OSHA must pay attorneys' fees 
to a prevailing employer, even if OSHA's actions were reasonable. Under 
this bill, OSHA will find itself paying the attorneys' fees of repeated 
safety violators whose penalties were reduced on a technicality.
  The real-life example of an employer by the name of Eric Ho in 
Houston illustrates the problem here. Eric Ho hired undocumented 
workers and exposed them to high levels of asbestos, and this 
represents the kind of case that could not be tolerated by OSHA. Even 
after a city worker issued a stop-work order, Eric Ho secretly had the 
workers stay on the job. Eric Ho's workers ate at the site. They worked 
throughout the night, and some even slept at the site. Ho then directed 
the workers to tap into what would prove to be a gas line, and there 
was an explosion which resulted in one contractor and two workers being 
seriously injured. In the end, OSHA cited Eric Ho for ten serious 
violations and 29 willful violations. In turn, Eric Ho challenged OSHA 
and a divided OSHA review commission eventually downgraded Eric Ho's 
citations. Although Eric Ho was sentenced to prison in a prosecution 
led by the Environmental Protection Agency, because they had 
jurisdiction also. Eric Ho violated the Clean Air Act and H.R. 742 
would require that this man, who had been convicted by one Federal 
agency, be awarded attorneys' fees because of OSHA's actions. OSHA 
would have to award attorneys' fees to Eric Ho. In this instance, H.R. 
742 would use taxpayer funds to reimburse a convicted felon on OSHA 
technicalities.
  Under the Equal Access to Justice Act, when a Federal agency is not 
substantially justified and cites an employer and the employer prevails 
in judicial proceedings, the employer is reimbursed for his attorneys' 
fees and expenses by the U.S. Treasury funds. Under this bill, H.R. 
742, OSHA would be required to reimburse from its own budget an 
employer who prevails in judicial or administrative proceedings,

[[Page H5700]]

even when OSHA was ``substantially justified'' in issuing its initial 
citations. Now, they say, still, they are not trying to chip away at 
the effectiveness of OSHA, destroying OSHA bit by bit. OSHA would have 
to pay out of its own budget. Whereas, under the other circumstances 
that are similar, U.S. Treasury funds are used. Thus, any time an OSHA 
staffer conducts an inspection and discovers serious safety violations, 
that inspector would have to second-guess himself or herself.

                              {time}  1700

  OSHA's inspectors will be forced to perform many mental gymnastics, 
trying to predict whether a citation, no matter how justified, might 
have the slightest chance of being adjusted or overturned on a 
technicality in review proceedings.
  Mr. Speaker, Members of both sides of the aisle agree that under its 
current budget and staffing configuration, it would take OSHA 108 
years, 108 years to inspect all of the workplaces in America.
  Now, H.R. 742 would have the effect of tying the hands of OSHA 
inspectors behind their own backs, causing them to analyze each and 
every citation in the most serious minute detail.
  In a sense this bill calls for OSHA inspectors and supervisory staff 
to become forecasters. They will be required to predict any and all 
possible scenarios in which a specific citation might be reversed on a 
technicality. In the meantime, the founding purpose of OSHA, to assure, 
quote, ``every working man and woman in the United States safe and 
healthful working conditions,'' that would be more or lose forgotten.
  Mr. Speaker, there are Members on the other side of the aisle who 
would have us believe that every OSHA inspector is like police 
inspector Javert in Victor Hugo's famous novel ``Les Miserables.''
  These Members compare every business owner to Hugo's noble character 
Jean Valjean, hounded by OSHA's Javertian inspector for having 
innocently slipped up on one point, one miniscule point of an obscure 
and archaic OSHA safety rule.
  In turn, those Members refuse to acknowledge the relevance of another 
great novelist, Charles Dickens, who captured bleak scenarios in which 
greed led the owners of blacking factories to subject child workers to 
inhumane and life-threatening conditions. In reality, we do not have to 
turn to 19th century novels to enlighten us on workplace safety 
conditions in this country. We need merely turn to the last year's 
astounding New York Times investigative series on worker deaths by 
David Barstow.
  Reporter Barstow reminded us all that someone harassing a wild burro 
on Federal lands in 2004 would get a stiffer penalty, that is up to a 
year in prison, than an unscrupulous employer whose willful safety 
violations resulted in the death of a worker.
  As I have repeated several times during today's debate, that 
employer's malfeasance could result in a sentence of no more than 6 
months in jail. However, if Mr. Barstow were to write his series this 
year, he would have to alter the comparison slightly. It is not, I am 
afraid, that we are doing a better job of holding errant employers 
accountable for serious safety offenses. Rather, it is because a 
provision in the Omnibus Appropriations Act enacted at the end of the 
108th Congress repealed the protection of wild burros and horses on 
Federal lands.
  So it is a different scenario; but still workers are no better off, I 
assure you.
  Mr. Speaker, I reserve the balance of my time.
  Mr. NORWOOD. Mr. Speaker, I yield 2 minutes to my friend, the 
gentleman from Puerto Rico (Mr. Fortuno).
  Mr. FORTUNO. Mr. Speaker, I am quite pleased to have the opportunity 
today to address my colleagues and argue all to support the four OSHA 
bills that are being discussed today. At this point I would like to 
particularly address the importance of H.R. 742.
  This bill narrows the target to a very specific goal, fairness. By 
permitting small employers to defend themselves against OSHA's superior 
litigation position when they believe that they are right, we are both 
creating consciousness about the values and needs of occupational 
security and health among employers and simultaneously promoting 
responsibility to our regulatory agency at the moment of acting.
  Reality is that many small businesses simply do not have the 
resources to compete against OSHA's team of legal experts and are 
forced to ``surrender'' just because of the economic burden that 
litigating a case will have on their company.
  It is not a matter of having a strange or poor case. It all comes 
down to the amount of time and money that litigating represents for 
them. We cannot allow our regulatory agencies such as OSHA to take 
advantage of their superior position and by doing so affect an 
important part of our national economy.
  I personally have been informed by the Puerto Rico Chamber of 
Commerce that the main frustration among small employers is the unfair 
advantage that OSHA has when pursuing litigation against a small 
company even when the case is without merit or on shaky legal ground.
  But, in fact, it is not news. Congress clearly recognized this 
problem when it passed the Equal Access to Justice Act. Still, this act 
just does not work when it comes to OSHA law.
  In 2003, OSHA collected over $82 million in penalties; but in 12 of 
the last 20 years, OSHA's total EAJA awards have been less than 
$10,000. This simply does not make sense in light of all of the 
complaints that we hear from our small business constituents. We have 
to promote a level playing field for all. That should be our motive.
  The message that we have to make clear to the small businesses is, if 
you need to, you can fight OSHA and win, and your victory will involve 
no burden.
  Mr. Speaker, no one wants OSHA to be using taxpayer money to pay 
attorneys' fees instead of enforcing the law. That is not the purpose 
of this bill. But we do care to ensure that OSHA will think twice 
before pursuing expensive and time-consuming litigation in cases with 
no merit.
  Mr. OWENS. Mr. Speaker, I yield such time as he may consume 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 rise in opposition to this bill. If the 
principle in this bill were applied to U.S. attorneys across the 
country, we would have a crime wave like you would not believe. If 
prosecutors had to be sure they were going to win every time they 
brought a case, they would bring very few cases. And that is the flaw 
in this bill.
  There are four kinds of results when OSHA brings an action. The first 
is the result when OSHA is right, when they win on every question. And 
this bill does not affect that situation.
  The second is the mixed result where OSHA wins some and loses some, 
where some of the charges that they make are downgraded, others are 
dismissed, and others are upheld in their entirety. As I read this 
legislation, Mr. Speaker, in that case, it is indeed possible, perhaps 
likely, that OSHA would be held responsible for paying the attorneys' 
fees of the defendant or accused party in that case.
  The third kind of case OSHA brings is one where OSHA loses on all 
counts, but the claim was not unreasonable, where they made a judgment 
call and they thought they were right, but the adjudicator, the court, 
the decisionmaker made a different decision.
  Well, in that case, it is obvious under this bill that OSHA would be 
responsible for the counsel fees of the accused party.
  The fourth kind of case is the case where OSHA brings a case that is 
unreasonable, that is arbitrary and capricious. Under present law, 
under such circumstances, OSHA is responsible for the counsel fees and 
attorneys' fees of the accused party.
  Now, our friends on the other side say, well, this has been rarely 
invoked. I believe they said there are three cases in recent years, in 
a long time, where this has been invoked. And they draw from that the 
conclusion, Mr. Speaker, that there must be many, many cases where OSHA 
has done something arbitrary or unreasonable, but not been called on 
it, not been caught at it.
  One could draw a very different set of conclusions from that record. 
It could draw the conclusion that in the vast majority of the cases, 
even when they

[[Page H5701]]

lose, their claims are reasonable; and the adjudicator and finder of 
fact in law has found that although OSHA is wrong, they were not acting 
in a vindictive or unreasonable way. This is a consistent principle 
across the board in Federal law.
  If a Federal agency brings a case that is vindictive or unreasonable 
or patently unfair, then they are in fact responsible to pay the 
attorneys' fees of the accused party. But if they bring a case that is 
just wrong, but not unreasonable, where reasonable people could 
disagree before the case was brought as to whether it was right or 
wrong, then they do not have to pay the attorneys' fees, and it is for 
a very good reason.
  It is because there are judgment calls that prosecutors have to make, 
there are judgment calls that enforcing agencies have to make, and we 
do not want to chill that judgment by saying, we will bring the case if 
you are sure that you are going to win. I am glad that the Securities 
and Exchange Commission is not going to be held to this standard, 
because if every time someone on Wall Street were accused of stock 
fraud, the SEC had to say, well, are we sure we are going to win before 
we bring this case, the cases of stock fraud that we have seen would be 
far more rampant than we have seen in recent years.
  I am glad that other agencies, the mine safety agency is not held to 
this standard. You know, the basic question here is whether we want to 
so chill and corrode the enforcement powers of the agency that we want 
to wipe them out all together. I just do not think that makes any 
sense.
  I think a far more sensible course would be to examine the existing 
legal provisions as to whether they go far enough, whether they are 
properly administered; but to make this wholesale change is to say to 
OSHA, unless you are sure you are going to win, do not bring the case.
  You know, every lawyer is asked by every client at some phase of the 
litigation, am I going to win? Clients want to know this. And 
competent, honest lawyers usually give an answer that says, I am not 
sure. I can give you the probabilities. I can give you the 
circumstances under which I think we can win, and the circumstances 
under which I think we would not win. And a sensible client decides 
whether to go forward or not.
  OSHA should have the same degree of discretion. If it abuses that 
discretion, it should be punished. If it does so on a consistent basis, 
we should change the law. But I believe there is no record that would 
demonstrate that conclusion, and I think that this proposal would 
seriously corrode the ability of this much needed agency to protect the 
working people of the country. I would urge both sides to cast a ``no'' 
vote on this bill.
  Mr. NORWOOD. Mr. Speaker I yield myself such time as I may consume.
  Mr. Speaker, I always enjoy following my friend, the gentleman from 
New Jersey (Mr. Andrews). I love to hear his debate, and I respect it. 
But I just think he is wrong about this.
  We are not chilling anybody. What we are telling OSHA is you be darn 
careful before you drag people into court or force them to pay the 
citation because they simply cannot go to court.
  They can take anybody to court anytime they want to under this bill. 
But they better be right more often than they are wrong, and that is 
not necessarily the case. So many of the cases we never hear about 
because the poor small business owner simply has to pay the citation 
because he knows that the attorneys' fees are going to be 10 times more 
than the citation.
  In hearings before my subcommittee in the last Congress, we heard 
testimony from several witnesses about settling citations with OSHA 
rather than contesting citations, even though the employer felt the 
citation was dead wrong.
  Why is this a continuing theme? I do not even have to be in Congress 
to hear this. I know about this kind of thing going on in my area all 
of the time. I would argue that since it is too hard to challenge OSHA 
and its attorneys, and the fact that you are challenging the entire 
taxpayers of the country and the use of their dollars, an employer 
simply cannot afford to go to court to prove that they are right 
because of the cost.
  Does this remind any of you that have been in business about hearing 
from any of your friends with the IRS? They do the same thing. They 
just beat you to death and make you pay whatever they want you to pay 
and you cannot go to court to defend yourself.
  The Occupational Safety and Health Small Employer Access to Justice 
Act, would award attorneys' fees to small businesses that successfully 
challenge an OSHA citation. They need to know what they are doing 
before they drag people into court. They need to be right.
  They will not be every time. It may cost them sometimes. But that is 
better than not ever allowing a small businessman to be able to defend 
himself in court. The legislation defines a small business as one with 
100 employees or less and with a net worth of not more than $7 million.
  This is a very limited definition. This very limited definition will 
award attorneys' fees to the very small employer who is often pressured 
into settling with OSHA despite the fact that the company believes it 
has done nothing wrong.

                              {time}  1715

  This legislation is needed because the Equal Access to Justice Act 
has not been effective in redressing unfair citations for small 
business owners. Some people think that is not true. We think it is 
true. The numbers of cases filed under EAJA are few and far between. 
Why? Because OSHA can easily claim that the citations were justified. 
Under EAJA this is all they need to do.
  In fiscal year 2004, small businesses were awarded only $11,585 by 
OSHRC. Witnesses before the Committee on Education and the Workforce 
have described the economic calculus small businesses make where 
settling OSHA cases is concerned. What was the common theme? It is 
cheaper to settle with OSHA than it is to fight, win and file for 
attorneys fees. That is wrong. Occasionally, some businessmen cannot 
stand it. They just cannot stand what OSHA is doing to them, and they 
are willing to pay a lot of money to go to court, a lot more money than 
the citation to prove that they were not wrong. But not everybody can 
do that.
  Mr. Speaker, my bill is simply not a new concept. I would like to 
point out that in 180 other areas Congress has provided fee-shifting 
statutory arrangements for attorneys fees. This includes the Fair Labor 
Standards Act, the Americans with Disabilities Act, and numerous other 
laws. H.R. 742 simply levels the playing field for small employers by 
encouraging OSHA to better assess the merits of the case before 
bringing the full force and power of the United States government in 
their litigation against a small business. If you think that is not 
scary, you ought to try it some time.
  This measure passed the House, thank goodness, last year in the 
Congress with bipartisan support, 223 to 194. I urge my colleagues, in 
particular my Democratic friends who have small businesses in their 
district, I urge them to vote for all four of these bills. I know it 
has been hard to tell what we have been talking about today because 
there has been so much superfluous conversation going on not concerning 
these four bills. But these are four simple, commonsense, fair bills 
that small business in this country need.
  Mr. Chairman, I reserve the balance of my time.
  Mr. Chairman, how much time remains?
  The SPEAKER pro tempore (Mr. Walden of Oregon). The gentleman from 
Georgia (Mr. Norwood) has 19 minutes remaining. The gentleman from New 
York (Mr. Owens) has 18 minutes remaining.
  Mr. OWENS. Mr. Speaker, I yield 6 minutes to the gentleman from Ohio 
(Mr. Kucinich).
  Mr. KUCINICH. Mr. Speaker, I thank the gentleman from New York (Mr. 
Owens) for his defense of workers rights.
  I rise in strong opposition to H.R. 742 and to any bill that seeks to 
weaken OSHA at a time when we should be strengthening it. I further 
want to say that I think the passage of this bill sets a dangerous 
precedent because what we would be doing effectively is undermining 
OSHA, not only discouraging it from performing its statutory mission of 
making sure that the workplace is safe, but also setting the stage for 
depriving OSHA of any revenues

[[Page H5702]]

that it would need to be able to enforce the law.
  It also occurs to me that there is a question of the constitutional 
rights of workers here, that since OSHA is given rather exclusive 
jurisdiction to protect the rights of workers and to enforce workplace 
safety standards, that working people would in effect be deprived of 
due process of law and equal protection of the law. So it seems to me 
there are constitutional issues here at stake as well.
  The core mission of OSHA is to protect workers by enforcing safety 
standards. This bill will undermine that mission. It will alter OSHA's 
ability to enforce, and it will leave workers in danger. The latest 
numbers from the Bureau of Labor Statistics show a rise in deaths of 
American workers on the job. In 2002, 5,524 workers were killed due to 
injuries on the job. By 2003, that number had risen to 5,575. In 2003, 
4.4 million, 4.4 million non-fatal workplace injuries were also 
reported.
  Let us remember what OSHA is: OSHA is the Federal cop on the 
workplace safety beat. H.R. 742 will discourage OSHA from enforcing the 
laws against dangerous workplaces. Instead, OSHA will spend its time 
weighing the odds of winning against the costs to its budget if it 
loses.
  H.R. 742 would require OSHA to pay attorneys fees in any case which 
it does not prevail. This would discourage settlements which save both 
time and money and in effect leave businesses with little or no reason 
to not contest charges.
  Imagine if Congress were to consider a bill to require police 
departments to pay attorneys fees of a criminal defendant charged with 
reckless endangerment merely because they were acquitted or found 
guilty of a lesser charge. Would this House support that? The question 
answers itself.
  Why support H.R. 742 which, in effect, does this same thing? The 
Nation's workplaces will be more dangerous and more lawless if the 
changes made by this bill are passed. This bill was designed to weaken 
enforcement of workplace safety laws and to in effect steal from 
exploited Americans the protection from injury and the justice they 
deserve. This legislation will severely handicap OSHA, the Federal 
workplace safety force, by discouraging it from citing employers unless 
the agency is completely certain it will win.
  This legislation will endanger Americans, the vast majority of whom 
work for others to make a living. They work in factories, in shops, in 
hospitals. They work in nursing homes and in schools. They are not the 
bosses who decide if and how businesses will obey the law. Instead, 
they face the consequences of those decisions, and they live and die by 
those decisions. They need strong workplace safety laws and vigorous 
enforcement. They need to have H.R. 742 to feed it.
  Current law already permits small businesses to recover litigation 
costs when the government position was not substantially justified. In 
the year 2000, 97.7 percent of all private establishments had less than 
seven employees and such establishments have a higher rate of 
occupational fatalities than establishments of more than 100 workers.
  The fundamental question that faces this House here is, do workers 
have rights to fair compensation when they are hurt on the job? Because 
this is not just about workers; it is about the American family. Does a 
breadwinner have the right to be protected in the workplace? Do we have 
an obligation as a Congress to ensure a safe workplace? That is really 
the question that we are deciding here today. We are acting as though 
the interest of business and the interest of workers is somehow 
divided. The interest should be the same.
  Workplace safety should be the highest criteria. We should not give 
up on workplace safety because of some odd notion that OSHA should pay 
if it brings a proceeding that is not upheld in a higher jurisdiction. 
We as Members of this House will pay a price if we fail to uphold 
workers' rights, if we fail to uphold the rights of a safe workplace, 
if we fail to uphold the right to fair compensation if someone is 
injured on the job, if we fail in our moral obligation to assure that 
corporations have a responsibility to their workers.
  This should not be a matter of Democrat or Republican. It should not 
be a matter of labor management. This should be an American commitment 
to safe workplaces. And because of that I urge my colleagues to vote to 
defeat H.R. 742 and to work in a bipartisan way to assure that the 
American workplace is going to be safe for all those who toil for a 
living.
  Mr. NORWOOD. Mr. Speaker, I yield 2 minutes to the gentleman from 
Minnesota (Mr. Kline).
  Mr. KLINE. Mr. Speaker, I thank the gentleman for yielding me time 
and for his tremendous leadership on this issue. He has been working it 
for a long time.
  Mr. Speaker, I rise today in support of the Occupational Safety and 
Health Small Employer Access to Justice Act. And I read it that way in 
the quotes for a purpose. The gentleman from Georgia (Mr. Norwood) 
mentioned earlier that we have heard language today that ranged on a 
wide variety of subjects, and I am not sure at all that they were 
talking about the issue before us today.
  This legislation that is before us now is one of four bills under 
consideration today which reflects the commitment of the gentleman from 
Georgia (Mr. Norwood) and me and my colleagues to improve the 
effectiveness of OSHA regulations and changes the environment that has 
hindered U.S. employers from creating and keeping more jobs.
  I have listened to language today earlier this afternoon on these 
four bills that talked about us losing millions of jobs to China and 
elsewhere. The purpose of the legislation that we are talking about 
today is to, in fact, help create and keep jobs here in America. I will 
repeat what my friend from Georgia said earlier today, that the OSHA 
Small Employer Access to Justice Act levels the playing field for small 
business owners and encourages OSHA to better assess the merits of a 
case before it brings unnecessary enforcement actions to court against 
small business.
  Loopholes in the current law make it possible for small businesses to 
be denied attorneys fees, and as my friends said, therefore, not even 
take the case to court because they simply cannot afford to defend 
themselves against a case brought against them by OSHA. This 
exacerbates the financial harm called by OSHA's sometimes dubious 
enforcement actions and discourages small business owners from seeking 
the restitution which rightly belongs to them. By closing this 
loophole, we ensure it is in everyone's best interest.
  Mr. NORWOOD. Mr. Speaker, I yield 2 minutes to the gentlewoman from 
Illinois (Mrs. Biggert).
  Mrs. BIGGERT. Mr. Speaker, I thank the chairman and I appreciate all 
he does.
  Mr. Speaker, I rise today in support of all four of the OSHA reforms 
bills on the floor. These bills contain reforms that will encourage a 
more collaborative environment in which small business owners and the 
Occupational Safety and Health Administration can work together and, in 
doing so, improve workplace safety.
  In particular I rise to support H.R. 742, the Small Employer Access 
to Justice Act. It would amend the OSHA Act of 1970 to reimburse small 
employers for attorneys' fees and costs when they are successful in 
challenging an OSHA citation.
  Now it is true that the Equal Access to Justice Act already allows 
small business owners to recover attorneys' fees when a ruling is in 
the employers favor. However, reimbursement for attorney fees is 
refused if OSHA can establish that the citation was substantially 
justified or that special circumstances led to the issuance of 
citations. This loophole means that small businesses are saddled with 
costly attorneys fees regardless of their innocence.
  Small business owners who believe that they have not violated any law 
are faced with a difficult question. Should I simply pay the fine or 
risk possibly incurring greater costs and attorneys fees by challenging 
this citation?
  No small business owner should face such a choice, especially if he 
or she is wrongly accused. Small business that have violated health or 
safety laws should be fined. It is important that workers should be 
protect. But small business owners that have not broken any laws should 
not be drained by large attorneys fees that they have accrued in order 
to contest the citation.

[[Page H5703]]

  I ask Members to support the OSHA reform and in particular H.R. 742 
so that a fair legal environment can be created for small businesses 
owners.
  Mr. OWENS. Mr. Speaker, I reserve the balance of my time.
  Mr. NORWOOD. Mr. Speaker, I yield 2 minutes the gentleman from 
Georgia (Mr. Price).
  Mr. PRICE of Georgia. Mr. Speaker, I have come down on these four 
bills and I have come for a variety of reasons, but one main reason is 
to make those corrections that are so necessary with the arguments on 
the other side.
  We have heard, why can we not have investigations? Why can we not 
consider another bill? Why can we not do this or that?
  Well, these are all interesting questions but they have nothing to do 
with this bill. The hyperbole from the opposition has been remarkable.

                              {time}  1730

  The contention, they would say, is that unless you are going to win, 
do not bring the case. That is not what this bill says. This bill 
simply provides that if the small business owner wins, then OSHA should 
be responsible for the attorneys' fees. We seek to improve OSHA and 
make it responsive to the intent of Congress. This bill is designed to 
strengthen small business and to save jobs.
  Again, the magnitude of this issue, 99.7 percent of all businesses 
are small businesses, 75 percent of all new jobs are in the area of 
small business. OSHA has a budget of $468 million, with 2,200 employees 
and 1,100 inspectors. The deck is stacked. Yes, it is stacked; it is 
stacked against those most beneficial to our economy, small business 
owners and their employees.
  H.R. 742 would allow a small businessman or -woman to recover 
attorneys' fees if they contest and they win, they win, an allegation 
in a citation by OSHA. Remember OSHA's budget, $468 million? You win, 
OSHA was wrong. Right? OSHA was wrong, but you spent thousands of 
dollars to defend your business and your workers' jobs. Remember, you 
win against a $468 million budget. So OSHA should reimburse your 
attorneys' fees. Right? Just like current law. Right? Wrong.
  You cannot win. Even if you win your case, you may be out the amount 
of money it cost to defend yourself. Less money in your business means 
fewer jobs. Remember, reimbursement only occurs if you win. If you 
lose, you are responsible, and that is as it should be.
  So let us stop punishing the backbone of our economy. Let us stop 
punishing small businesses and employees and workers. I urge support 
for H.R. 742, one of four commonsense worker-friendly, job-friendly, 
small business-friendly bills before us today.
  Mr. NORWOOD. Mr. Speaker, it is a pleasure to yield 2\1/2\ minutes to 
the gentleman from Texas (Mr. Sam Johnson), another of our subcommittee 
chairmen.
  Mr. SAM JOHNSON of Texas. Mr. Speaker, I want to express my support 
for the legislation introduced today by my colleague from Georgia. I am 
a cosponsor of all four of these bills on the floor today, and I 
believe they will improve the workplace safety level, the playing field 
for small business, and ensure that employers and employees are treated 
fairly.
  H.R. 742 encourages OSHA to really look at the merits of the case 
before it brings unnecessary enforcement actions to court against small 
businesses. Current law already does allow small business owners to 
recover attorneys' fees if they successfully challenge a citation; but 
in the real world of OSHA, it simply does not work for small 
businesses.
  Case in point: in the last 24 years, small business owners have been 
able to recover costs from OSHA only 38 times. In 2004, only three 
employers were awarded attorneys' fees, despite more than 86,000 
citations issued by OSHA. H.R. 742 also limits its scope to small 
businesses with less than 100 employees or less than $7 million in net 
worth. This assures 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 workforce. As chairman of 
the Subcommittee on Employer-Employee Relations, I have seen these 
bills through the committee and the full House in the past, and I look 
forward to their passing again today.
  Again, I applaud my colleague from Georgia for his hard work on 
behalf of American small business owners and their employees.
  Mr. NORWOOD. Mr. Speaker, how much time remains?
  The SPEAKER pro tempore (Mr. Walden of Oregon). The gentleman from 
Georgia has 11 minutes remaining.
  Mr. NORWOOD. Mr. Speaker, it gives me absolute pleasure to yield 2 
minutes to the gentleman from South Carolina (Mr. Wilson), my friend 
and neighbor, who lives right up the road from me in Columbia.
  Mr. WILSON of South Carolina. Mr. Speaker, my legal career of 25 
years was to represent small business owners. And since coming to 
Congress 3 years ago, I have worked consistently to make it easier for 
small businesses to grow and succeed in our country. I appreciate the 
leadership of the chairman, the gentleman from Ohio (Mr. Boehner), and 
my next-door neighbor, the gentleman from Georgia (Mr. Norwood), for 
their promotion of small businesses.
  However, OSHA regulations placed upon our small businesses continue 
to be among the most complex and difficult legal mandates imposed on 
employers. The Occupational Safety and Health Small Employer Access to 
Justice Act is a vital piece of legislation that significantly reduces 
burdensome government regulations. H.R. 742 levels the playing field 
for small businesses and encourages OSHA to better assess the merits of 
a case before bringing unnecessary enforcement actions to court against 
small businesses.
  By passing this vital legislation, Congress will enhance fairness for 
employers, especially small businesses; and give them new tools to 
defend themselves against OSHA citations they believe are unjustified. 
Small businesses provide, in the district I represent, 99 percent of 
businesses, creating 85 percent of jobs for working people; and 
Congress should act now to help them succeed.
  As a member of the Committee on Education and the Workforce, and 
cosponsor of the four bills today, I have been honored to work with 
Chairman Boehner and the gentleman from Georgia (Mr. Norwood). I 
applaud their efforts to provide commonsense legislation that will 
reduce the burden placed upon America's small business owners.
  I urge my colleagues to support OSHA reform, H.R. 742.
  Mr. NORWOOD. Mr. Speaker, it is a great pleasure to yield 2 minutes 
to the gentleman from Georgia (Mr. Gingrey).
  Mr. GINGREY. Mr. Speaker, I thank my colleague from Georgia for 
yielding me this time, and I am here in support not only of H.R. 742 
but of all four of these OSHA reform bills. What we are talking about 
here, my colleagues, is leveling the playing field, that is all, 
reforming a 34-year-old act that is long overdue for reform.
  During the 2004 elections, what we heard constantly from the other 
side was the concern about outsourcing of jobs, of losing jobs in this 
country. Well, there is no way we can compete with other countries with 
these burdensome rules and regulations like OSHA puts on our small 
businessmen and -women in this country who create most of the jobs. We 
just need a level playing field, and I am proud to stand in support of 
these four bills, and I am proud of my colleague from Georgia (Mr. 
Norwood). Nobody is more concerned about workers and workers' health. 
He has been a leader all these years in regard to issues like the 
Patients' Bill of Rights. He has shown great compassion, and I commend 
him for bringing these bills, and for the gentleman from Ohio (Mr. 
Boehner), the chairman, and the committee for working through this 
process.
  So as my colleagues have said before me, it is time to make these 
reforms and level the playing field. Yes, protect our workers, but also 
protect our small employers so they can continue to create these jobs 
and compete in the world market. Then, and only then, will we end the 
outsourcing of jobs.
  Mr. OWENS. Mr. Speaker, how much time do I have remaining?
  The SPEAKER pro tempore. The gentleman has 12 minutes remaining.
  Mr. OWENS. Mr. Speaker, I yield myself the balance of my time and 
would

[[Page H5704]]

like to point out that despite the rhetoric of my colleagues on the 
other side of the aisle, and we did hear again the last speaker mention 
the fact that one of the reasons we are attacking OSHA is because 
employers feel they cannot compete with these regulations. They cannot 
compete with American workers being treated the way they are being 
treated.
  The humane treatment of American workers stands in the way of profits 
and competition with the people who are in the developing countries and 
China. They do not have to treat workers this way. They do not have to 
spend the money, as I said before.
  But I want to point out that this bill is hardly limited to small 
businesses. The appearance or the notion that small businesses are 
being persecuted by OSHA, by the government, is an incorrect one. 
According to the Bureau of Labor Statistics, in 1998 there were more 
than 6.5 million private sector firms with 99 or fewer employees. H.R. 
742 applies to all firms with 100 or fewer employees with a net worth 
of $7 million or less. These companies, those with a hundred or fewer 
employees and $7 million or less, comprise about 97 percent of all 
American businesses.
  Let me repeat that. H.R. 742 applies to all but 2 or 3 percent of 
American businesses. This is the broadest definition of small business 
that anyone could ever come up with or dream up. It is similar to 
categorizing elephants as small mammals. It does not tell the story as 
it should be told.
  Mr. Speaker, when it comes to employment-related laws, Congress 
traditionally defines a small business as one with 20 or fewer 
employees, 20 or fewer employees. As a matter of fact, that is the 
definition used on annual congressional appropriation riders, which 
exempt firms of 20 or fewer workers from scheduled OSHA inspections, 20 
or fewer workers, not 100, as this bill treats.
  Mr. Speaker, I would also point out that OSHA also has a long-
standing practice of reducing penalties for small employers. For 
businesses with 25 or fewer workers, any OSHA penalty is routinely 
reduced by 60 percent. Routinely reduced by 60 percent. Likewise, for 
businesses with between 26 and 100 workers, any OSHA penalty is reduced 
by 40 percent. Again, OSHA inspectors, in reality, are hardly like the 
draconian police inspector Javert from the famous novel, ``Les 
Miserable.''
  It is important, Mr. Speaker, to realize that there is a need for 
both parties to come together and for the Republican majority to yield 
on its strategy to destroy labor unions. There is a strategy that has 
been pursued relentlessly to destroy labor unions; and in the process, 
working families of course get hurt because working families are 
represented by labor unions. In the effort to destroy labor unions, 
everything related to them, it gives them some kind of power, has to be 
destroyed, among them including OSHA.
  Members of unions are likely to complain. They are likely to insist 
on their rights. They are likely to report violations. OSHA is less 
likely to run over the interests of the workers if there is an accident 
or some problem. So the relentless pursuit of labor unions is part of 
the problem with this legislation. It has been brought back because it 
is a part of a master plan, and that master plan is to sort of distract 
our attention from the real issues related to safety in the workplace, 
distract our attention from the fact that it is really an employer 
protection act that we are concerned with. Employer protection at all 
cost.
  The constituency of the Republican majority party demands it all: 
destroy the kind of environment and atmosphere that working families 
have been used to for years in this Nation. Let us change all that 
because it is not competitive. It is not competitive. It costs too 
much. We cannot compete with our overseas competitors. We are, in the 
process, drawn into the trap of class warfare. We hate to hear the term 
class warfare anywhere in America. Nobody wants to be accused of class 
warfare, but that is what it amounts to: working families against 
people who never get enough.
  We have bloated capitalism. Aristotle said there are extremes of 
everything. There are extremes to capitalism. At one end of the 
spectrum, in terms of economic systems, you have communism; at the 
other end you have reckless capitalism. Capitalism out of control. 
Capitalism so greedy it never gets enough. I think democratic 
capitalism is the hope of the world, and we have enough experience now 
to know that democratic capitalism is the only system that really 
works. But if you allow capitalism to go to extremes, it tramples on 
the rights of workers. It tramples on the rights of consumers.
  You know, workers are consumers. There is a madness at work here. As 
we destroy the buying power of workers, we are destroying that which 
makes our economy go.

                              {time}  1745

  We all agree, there is no debate about the fact that the economy of 
America is driven by consumer spending. Henry Ford understood that very 
early when he said, I am going to make cars and pay my workers enough 
money to buy them. That was a simple, commonsense idea that is at the 
heart of capitalism today. Two-thirds of our economy is dependent on 
what people buy. We are going to destroy the consumers by destroying 
the conditions in the workplace which allow our workers to work 
productively and get paid appropriately.
  The minimum wage of today, Henry Ford would see right away, is not 
going to allow our consumers to keep buying products. We are lucky; 
there is a sort of credit card fantasy, an oasis of credit card credit 
that is driving our economy right now. But slowly, as we lessen the 
amount of money that flows into the hands of workers, as we move more 
jobs overseas and encourage outsourcing, as we give more and more of 
our dollars to China, because we are not giving all of our dollars to 
China, we are giving the dollars that they use for manufacturing, for 
production, but the trade with China benefits the wholesalers and 
retailers.
  People are making big profits off China in this country. We would not 
be dealing with China if somebody was not making big profits in this 
country, but it is skewed. It is out of balance because in order to 
make big profits at the upper levels by producing products in a low-
cost economy and getting the low-cost product, bringing them back into 
another economy with a different standard of living and selling those 
products at that standard, we are having consumers in America pay high 
prices for the lowest-priced goods that come from China. And the people 
who sell those goods and buy them from China, they walk off with the 
profits, along with the Chinese who produce those goods through the 
deals that have been made. There is more Wal-Mart in China than there 
is in the U.S., and more all of the time.
  They find it so profitable to take the product, the production, the 
manufacturing to China, and bring back the products to capitalize on 
the sales here. It is not going to work eventually. We are catering to 
those who benefit at the top, but it is not going to continue to work 
because we are destroying our own consumer market. We are going to wake 
up and find that the economy is going to come to a standstill because 
nobody is able to buy the products that we want to sell.
  Our own class war that we do not recognize and will not recognize 
will destroy us. Other evidence of a class war is the fact that we 
continue to give huge tax credits to the people at the very top who 
need it the least, yet we do not use the power of the Federal 
Government to increase the minimum wage.
  We started this discussion about minimum wage, and we are going to 
end it on minimum wage. The minimum wage is one way that we guarantee 
all Americans have a part of American prosperity. We should be paying 
something like $8 an hour in order to keep minimum wage competitive 
with when minimum wage was first instituted. We should be paying about 
$8 an hour to enable those workers to buy the products that we want to 
sell and keep our economy going.
  So minimum wage, we refuse to even consider. Congress has gotten huge 
increases in their own salaries, and refuse to consider a minimum wage 
increase for the workers at the very bottom. Is that not an element of 
class warfare? That is class contempt. That is class hatred, to stamp 
on those at the very bottom and refuse to use the authority invested in 
us by the American people.

[[Page H5705]]

  We have the authority to raise wages, but the same people who are 
being protected by these bills as far as OSHA is concerned by 
minimizing their expenses and minimizing any trouble they have to 
encounter in making the workplace safe, they are being protected by 
refusing to raise the minimum wage. What is the ultimate danger here? 
The ultimate danger here is that, one day, working families are going 
to wake up and say, you have it all wrong. The country belongs to all 
of us, not you. If you do not want to admit that, it belongs only to 
us.
  Working families are the people who go out and defend the existence 
of this country in times of war. They will determine whether we defeat 
terrorism or not. Working families are going to determine that we do 
not have domestic terrorism spreading in America because working 
families are going to save America by rising up to throw out people who 
insist on stamping on them and have contempt for them.
  Mr. Speaker, in closing, I urge a ``no'' vote on all four of these 
bills today.
  Mr. NORWOOD. Mr. Speaker, I yield 2 minutes to the gentleman from 
Texas (Mr. Hensarling), and just say we still are on H.R. 742.
  Mr. HENSARLING. Mr. Speaker, as a former small businessman, I rise 
today in support of H.R. 742 and Republican efforts to reduce the 
regulatory burden on small businesses, the job engine in this country.
  The Federal regulatory burden is strangling small business in 
America. The estimated total regulatory burden in America is now 
approaching $1 trillion a year. If we could only save 1 percent of that 
amount, if that could be returned to the marketplace, that would be 
enough money to provide capital for 400,000 new small businesses. Or it 
could pay the annual salaries for over a quarter million of our 
American workers.
  Furthermore, according to the SBA, small businesses that employ fewer 
than 20 workers pay almost $7,000 each year in regulatory cost for 
every employee. Instead of using these funds to create new jobs or pay 
higher salaries or fund expanded health care benefits, small business 
owners are increasingly being forced to spend much of it complying with 
mind-numbing, inflexible, expensive, draconian and all too often just 
plain dumb Federal regulations.
  H.R. 742 will make a difference in a small way in helping level the 
playing field for small businesses. It would require OSHA to better 
assess the merits of a case before it brings unnecessary enforcement 
actions to court against small businesses. This act will simply help 
small business owners to recover attorneys' fees if the owner 
successfully challenges a dubious OSHA citation. And there have been a 
number. Let us remember, OSHA does not always get it right. These are 
the folks who alleged that some workers face death or serious physical 
harm from lifting the top of a sandwich cookie from one assembly line 
and putting it on the bottom of the cookie on another. Give me a break.
  Mr. Speaker, this is a matter of fairness. It is a matter of common 
sense and American jobs. I urge all of my colleagues to support small 
business owners and the millions of Americans they employ by voting in 
favor of H.R. 742.
  Mr. NORWOOD. Mr. Speaker, I yield myself the balance of my time.
  It has been a long 4 hours on four bills. We stayed on the subject 
for about 2 hours. These four bills are very important, I believe, for 
the small business community in the country. I realize that the labor 
union kingpins do not like these four bills, but I promise labor union 
workers who are out there in small businesses will like these bills.
  There have been some outlandish statements that need to be corrected 
for the record.
  Number one, there is nobody on our committee, including myself, any 
of us who made these bills, that believe for one minute any of these 
bills are going to harm the workplace safety or health factor. It is 
simply not going to do that. Somebody said, oh, gosh, if we pass these 
bills, workers will have more injuries. Members can have that opinion; 
it does not make it right. That is simply not true.
  Somebody said, if you pass these four bills, you are going to weaken 
OSHA. That is not true either. We are going to help make OSHA work a 
little better.
  Lastly, I want to mention to my friend who said OSHA is a Federal 
cop. That is the problem. If you believe they are a bunch of police 
over there, we never will get anywhere with OSHA because until we get 
this Federal agency working with people in small businesses who want to 
have a safer workplace rather than a bunch of cops who come around and 
beat people up, this is never going to work. I had this happen just 
yesterday in my own district where this female came in, and her badge 
was bigger than her brain. It was just ridiculous. Until we get a 
different attitude and not feeling that OSHA is a Federal cop, it is 
not going to get better.
  Mr. Speaker, I yield the balance of my time to the gentleman from 
Ohio (Mr. Boehner), chairman of the Committee on Education and the 
Workforce.
  Mr. BOEHNER. Mr. Speaker, I congratulate the gentleman from Georgia 
(Mr. Norwood) who has spent a lot of years trying to make OSHA work 
better for those in the workplace and those who employ them in the 
workplace. He has done a great job in bringing these four bills out of 
the subcommittee and to the floor today.
  Mr. Speaker, we are here today to help promote a climate of 
cooperation between OSHA and employers. The focus is on improving 
workplace safety. In so doing, we have the opportunity to enhance 
business competitiveness and further job creation.
  Now these bills are important and here is why. No small business 
should be penalized for missing a deadline because of an honest 
mistake. No small business should have to wait 8 years to have their 
case reviewed by the Occupational Safety and Health Review Commission 
simply because it cannot get a quorum.
  Thirdly, no small business wants to go up against an OSHA that is the 
prosecutor, judge and jury all in one.
  Lastly, no small business should be required to spend years and 
significant money trying to recover attorneys' fees after defending 
itself against a meritless enforcement action by OSHA. These OSHA 
reform bills can make a real difference in the lives of small 
businesses that face fierce competition at home and abroad. We truly do 
believe that these bills will help the effectiveness of OSHA and help 
improve the workplace safety for millions of American workers. I 
encourage all of my colleagues to support all four bills.
  Ms. WOOLSEY. Mr. Speaker, I rise in opposition to H.R. 742 because 
workers deserve to know their interests will be represented fairly by 
OSHA, not weighed by how much money it will cost to bring the claim 
forward.
  We all have small businesses in our districts, and we all know that 
it saves money to provide for a safe workplace in the first place and 
preventing accidents.
  Workers and their families suffer due to poor safety at some 
workplaces. They have enough angst because they can't count on their 
employers to provide protection. Experiencing further betrayal by their 
Government when they seek justice is the last thing they need.
  But, this bill threatens the lives of thousands of workers employed 
by small businesses because it forces OSHA to consider the costs of 
attorneys' fees when deciding to take action. Putting this unique 
burden on OSHA may take away the only recourse employees have to stand 
up for their safety.
  Since Bush took office, it has been clear that he intends to use OSHA 
to protect big business rather than worker 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 even further by suspending twenty-three important 
job safety regulations. The list goes on and on. This legislation is 
one more way to weaken OSHA. If this passes it will be that much easier 
for businesses to avoid OSHA regulations.
  If my colleagues on the other side of the aisle really wanted to help 
workers, they would increase penalties for employers that ignore safety 
regulations. They would protect companys from dumping their pensions on 
to the taxpayers and raise minimum wage. These actions would let our 
workers know that someone is worrying about the costs in their lives as 
well.
  Mr. Speaker, I urge my colleagues to join me in opposing H.R. 742, 
which is an unnecessary attack on worker protections.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today to speak in 
opposition to H.R. 742, a bill to amend the Occupational Safety and 
Health Act of 1970 by making it easier for small businesses to recover 
attorneys' fees from OSHA if the agency brought unjustified

[[Page H5706]]

enforcement action. Small businesses under the bill are defined as 
those with no more than 100 employees and a maximum $7 million in net 
worth.
  More than any of the other bills, H.R. 742 poses the greatest threat 
to worker safety and health. OSHA, as is almost every other Federal 
agency, is already required by law to pay attorneys' fees and costs in 
any proceeding in which the agency's charge is not substantially 
justified. H.R. 742 singles out OSHA, alone among all Federal agencies, 
to require it to pay attorneys' fees and costs in any proceeding in 
which it does not win, regardless of why it lost and notwithstanding 
the fact that the position of the agency was substantially justified. 
In effect, unless the agency can guarantee that it will win every case 
it brings, H.R. 742 punishes the OSHA for trying to enforce the law. 
The OSH Act does not afford workers a private right of action. If OSHA 
fails to enforce the law workers have no other means of doing so.
  In summary, this bill, as would all the other OSHA bills considered 
today, would impede the enforcement of worksite safety and health 
provisions at the very time when more and more Americans have 
identified safety as one of their foremost concerns. According to a 
poll conducted in April by NBC and the Wall Street Journal, 84 percent 
of Americans want Congress to pass legislation that ensures greater 
workplace safety and health. Supporting this bill would take us in 
exactly the opposite direction.
  Mr. CONYERS. Mr. Speaker, today, I express strong opposition to H.R. 
742, the Occupational Safety Health Small Employer Access to Justice 
Act.
  This fee shifting legislation before us is really a wolf in sheep's 
clothing. It is dangerous to our workers, overbroad, and unnecessary.
  The bill is dangerous because it creates an incentive for employers 
to litigate with OSHA rather than to correct any safety flaws in the 
workplace. Since OSHA was created in 1970, its mission has been clear: 
``to assure so far as possible every working man and woman in the 
nation safe and healthful working conditions.'' Unfortunately, H.R. 742 
will undermine that goal and penalize OSHA for any instance in which it 
attempts to safeguard worker safety and loses the case even for 
technical reasons.
  The bill is overbroad because it applies to any company with less 
than 100 employees, regardless of their revenues or their safety 
record. Currently, over 6.5 million private sector establishments fall 
into this category, more than 97 percent of all employers. These 
companies employ more than 55 million workers. Many of these businesses 
have millions if not billions of dollars in annual revenues, and have 
no business being covered by a ``small business'' bill.
  The bill is unnecessary because this Committee has not received a 
shred of evidence that OSHA has pursued unwarranted litigation or 
abused its prosecutorial discretion. To the contrary, more than sixty 
percent of OSHA citations resulted in settlements, and OSHA wins nearly 
four out of five cases that make it to the Federal appellate level.
  Moreover, employers are already entitled to the recovery of legal 
fees under the Equal Access to Justice Act. That law specifies that the 
government must pay the prevailing party's fees and costs in any 
situation in which the government's position was not ``substantially 
justified.'' This offers more than sufficient incentive to prevent OSHA 
from overstepping its authority.
  So we have before us an unnecessary and unwarranted bill, that, 
punishes an effective agency, and places our workers in danger. I urge 
Members to reject this measure.
  Mr. BLUMENSUER. Mr. Speaker, this Congress has repeatedly undermined 
protections for the American workforce, shifting emphasis from 
employees to employers. Just like the identical bills introduced last 
year, the four bills brought to the House floor today are further 
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.
  As of late, Congress' hostility towards workers' rights has been 
widespread. Recently, I decided to oppose the Central American Free 
Trade Agreement (CAFTA) because it does not do enough to ensure 
adequate and fair labor laws for workers in foreign countries. Now 
today, Congress is trying to roll back significant worker protections 
that were put in place for our workers here at home.
  Rather than ``reform,'' the fact of the matter is that these four 
pieces of legislation weaken OSHA and undermine Congress's original 
intent when OSHA was enacted in 1970. 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.
  The SPEAKER pro tempore (Mr. Walden of Oregon). All time for debate 
has expired.
  Pursuant to House Resolution 351, the bill is considered read for 
amendment, and the previous question is ordered.
  The question is on 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. OWENS. 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 motion will be postponed.

                          ____________________