When Donald Trump took office almost two years ago, he trumpeted the goal of reducing the regulatory “burden” of “job killing” regulations on employers. Since then, he has issued a spate of anti-regulatory executive orders—including one that mandates the repeal of two regulatory protections for every one added—and has launched deregulatory efforts in the Department of Labor, the Department of Interior, the Environmental Protection Agency, and others agencies that affect worker health and the environment. With both houses of Congress under Republican control, this anti-regulatory and anti-worker agenda was checked only by the courts and the administration’s own missteps.
But Trump administration officials across the federal government awoke the morning of November 7 to a new world, one they will barely recognize as they prepare to face a House of Representatives controlled by the opposite party.
How will a divided Congress affect Trump’s efforts to roll back health and safety regulations and remove protections from workers in this country? How will this new landscape change the prospects for regulatory agencies such as the Occupational Safety and Health Administration (OSHA), the Mine Safety and Health Administration (MSHA), and the National Institutes for Occupational Safety and Health (NIOSH)? And, just what oversight, legislative, and budgetary levers might this new House pull in order to stop this administration from undermining protections for the American workforce?
One of the most important roles that Congress plays as a separate branch of government is oversight of the executive branch. Administration officials may not realize it yet—the 115th Congress never really embraced this role—but meaningful congressional oversight will change their world. Instead of just having to endure negative media stories, concerned letters from the congressional minority, and complaints from workers and unions, the Trump administration will now face an opposition with eyes, ears, and teeth. After almost two years of relative impunity, everything that federal departments and agencies do from now on—and indeed, everything they have done up until now—will be subject to congressional oversight, including, possibly, congressional investigation.
We’ve seen very little oversight of the Trump administration over the past two years. Since January 2017, the Senate has held zero OSHA or MSHA oversight hearings, and only one was held in the House of Representatives. But it would be a stretch even to call that hearing an “oversight” hearing, as no one from OSHA was invited to testify. Instead, that hearing—held last February, and entitled “A More Effective and Collaborative OSHA: A View from Stakeholders”—starred two business owners, a representative of the Chamber of Commerce, and former Obama administration OSHA head Dr. David Michaels. And the focus of the hearing was not worker health and safety, but rather exploring strategies that OSHA could pursue to make life easier on employers. The House later held a somewhat related hearing on regulatory “reform” in May, but again, no administration officials were invited to testify.
The head of OSHA—currently Acting Assistant Secretary Loren Sweatt—can be called to testify at a hearing about how these changes in OSHA policies may have weakened the agency’s ability to protect workers and enforce the law.
Starting in January, with committees under Democratic control, the House will no doubt resume meaningful oversight hearings. As the majority party, Democratic committee members will be able to decide what hearings to hold, who to invite, and how many witnesses the minority gets to invite (usually, only one).
Democrats will be able to request testimony from experts in the field of workplace health and safety, as well as from workers and family members who can describe first-hand how they have been impacted by injuries, illnesses, or deaths in the workplace. And just as important, they can also request testimony from department and agency officials, and question them about how their policies and practices may have undermined critical protections for workers and what their future plans are.
Of primary importance, House committees might want to investigate the rationale for key decisions made at OSHA. Over the past two years, for example, most of OSHA’s regulatory activity has gone into rolling back worker protections, rather than strengthening them. The agency has proposed to weaken protections for maritime and construction workers against exposure to beryllium. OSHA has also proposed to repeal a requirement issued under the Obama administration that companies must send detailed information about workplace injuries and illnesses into OSHA; furthermore, the agency has refused to post on its website the injury and illness information it has already received, allegedly for privacy reasons. The head of OSHA—currently Acting Assistant Secretary Loren Sweatt—can be called to testify at a hearing about how these changes in OSHA policies may have weakened the agency’s ability to protect workers and enforce the law.
The new House committees may also have questions about the progress OSHA and MSHA are making on new standards that would protect workers from hazards for which there currently are no standards—hazards such as heat, workplace violence, infectious diseases, thousands of hazardous chemicals, chemical plant safety, noise, silica in coal mines, and on and on. OSHA officials could be questioned about why they removed standards on things such as combustible dust and noise in construction from the regulatory agenda. And, should any new OSHA or MSHA standards get close to the proposal stage, House committees may have questions on how Trump’s one-in/two-out executive order is actually going to work.
Trump’s OSHA likes to boast that it conducted more inspections over the past few years than the Obama administration did during the previous eight. But all inspections are not created equal and more inspections isn’t necessarily better.
Congress may also be interested in examining OSHA’s recent inspection practices. Enforcing OSHA standards is the agency’s main responsibility, and in this vein, Trump’s OSHA likes to boast that it conducted more inspections over the past few years than the Obama administration did during the previous eight. But all inspections are not created equal and more inspections isn’t necessarily better. There is evidence that Trump’s OSHA has increased the number by doing a lot of quick safety inspections of construction sites instead of more meaningful and difficult inspections such as those covering ergonomics, chemical plant safety, or industrial hygiene inspections that protect workers against chemical or noise exposure.
Furthermore, Congress may have questions about OSHA’s overall enforcement efforts under Trump. Has OSHA been enforcing the law to the extent authorized and envisioned by the law? Where are OSHA’s staffing levels? How do penalty levels compare with past years? And what about policies that OSHA is issuing that actually reduce worker protections, such as a recent memo that weakened protections for workers who may be retaliated against for reporting injuries or illnesses?
More general issues that Congress may want to probe include what OSHA is doing to stop the rise in workplace fatalities. Why, for example, did OSHA take a list of worker fatalities off the homepage of the OSHA website, and why they are refusing to post companies’ injury and illness summaries? Furthermore, is OSHA’s whistleblower program adequately protecting workers from retaliation, and are OSHA state plans providing coverage at least as effectively as the federal program?
The majority party in the House of Representatives, with it significantly increased staffing levels, will also have the capacity to conduct in-depth investigations and issue reports that that can lead to improved worker protections. During the Bush administration, for example, the Democratically-controlled House Education and Labor Committee issued a report on underreporting of injuries and illnesses—a report that eventually contributed to additional funding for recordkeeping investigations, and ultimately, during the Obama administration, regulations that improved OSHA’s recordkeeping process.
With a divided Congress, we’re not likely to see legislation pass into law that strengthens OSHA or MSHA, or that benefits workers significantly. The House may pass some bills that can be useful for setting an agenda and raising the public awareness on key issues, but it’s unlikely any of those would pass the Senate, much less be signed by the president.
Of course, there are always exceptions. After the Sago mine disaster in 2006, for example, a Republican-controlled House and Senate passed legislation strengthening MSHA—which was signed by a Republican president—within a few short months. Should any similar disaster lead to legislation in the future, Democratic control of even one house of Congress would be important in fashioning new legislation.
Democratically controlled House of Representatives will keep damaging legislation from moving through the process.
The new Congress may be better known for legislation it doesn’t consider. For example, Republicans have introduced a number of regulatory “reform” bills with the sole goal of gumming up and slowing down the regulatory process even more than it is now. A Democratically controlled House of Representatives will keep damaging legislation from moving through the process.
Congress holds “the power of the purse;” that is, it gets to decide through its appropriations bills (and the signature of the president) what each government agency gets to spend in the following year. This appropriations process is not just about how much money each program gets; it’s also about policy. Congressional representatives who aren’t able to pass legislation that eliminates or weakens programs they don’t like often attempt to use the budget process to zero out funding for a program, thereby effectively eliminating it; or Congress can decide to under-fund a program, significantly weakening the agency’s ability to fully implement the law and conduct its business.
The Trump administration has attempted to use the budget process to weaken worker protections. For example, Trump proposed in his FY 2018 and FY 2019 budgets to eliminate funding for OSHA’s $10 million Susan Harwood Worker Training Grant Program as well as the U.S. Chemical Safety Board (CSB). Trump also proposed to significantly reduce the overall budgets of OSHA and NIOSH in both FY 2018 and FY 2019, and the House appropriations bill cut OSHA’s budget further in both years. The Republican-controlled House of Representatives went along with the president’s proposal to eliminate the Harwood grants and voted for even larger cuts in OSHA’s budget than the president requested. Fortunately, the Senate, where power is more balanced (and relationships more collegial than the House), refused to go along with any of the proposals that damaged OSHA, NIOSH, or the CSB.
With a Democratically controlled House, and a House Appropriations Subcommittee on Labor, Health, and Human Services headed by staunch labor ally and worker safety champion Rosa DeLauro (D-CT), such proposals would be nonstarters.
Beyond OSHA, MSHA, and NIOSH
Shoring up the agencies that establish and enforce workplace health and safety standards is only one means of protecting workers. Ultimately, it is workers themselves who are best able to protect themselves in the workplace, and so preventing the erosion of their rights and preserving their voice in the workplace is a critical step to keeping them safe.
Ultimately, it is workers themselves who are best able to protect themselves in the workplace, and so preventing the erosion of their rights and preserving their voice in the workplace is a critical step to keeping them safe.
Congressional oversight that a Democratic House exercises over agencies such as the Department of Labor’s Wage and Hour Division, the Equal Employment Opportunity Commission, and the National Labor Relations Board—in addition to oversight over the safety agencies—may help erode the Trump administration’s ability to undermine workers’ rights, including their right to join unions and use the power of their unions to strengthen workers’ rights to defend their health and safety in the workplace.
A Democratically controlled House of Representatives may not be able to make major advances in worker protections while the Senate and White House remain under Republican control, but it will mean that every attempt Trump appointees make to undermine worker safety and health will come under close scrutiny for the first time. It’s a new world.