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OSHA Shaming and the Rule of Law

In a civilized society, however, we don’t let policemen decide whom to punish, no matter how effective that might be.

Fall 2020 • Regulation
By Arthur G. Sapper

Cass Sunstein, a Harvard law professor and former official in the Obama administration, recently endorsed the Occupational Safety and Health Administration’s policy of “regulation by shaming” — castigating employers in news releases. He urged the Trump administration to fully reinstate it after having relaxed (but not fully abandoned) it from the days of the Obama administration. His sole reason was that a recent statistical study of injury rates showed that the policy “worked.”

Yet, Sunstein failed to consider two important questions: Is the policy lawful? And is it moral? The answer to both is no. Instead, the policy undermines the rule of law, the foundation of civilized society.

Regulation by shaming / During the Obama administration, OSHA greatly increased the frequency and intensity of a tactic the agency, without much thought, had used for many years: castigating in press releases employers to whom it had issued citations. The press release would recite with embellishment the citation’s allegations, putting the employer through a paper perp walk. It would disparage the employer, often using harsh words not found in the citation and featuring derogatory quotations from OSHA officials. One press release accused a company of having “created a culture that values production and profit over workers safety.” Another, after announcing the issuance of citations for non‐​willful, non‐​serious paperwork violations, accused the employer of “blatant disregard” of regulations; years later, a court dismissed all the charges.

Nearly every OSHA press release uses misleading terminology. For example, many use terms suggestive of criminality, such as “fines” instead of “civil penalties,” the term used in the law. Often, they emphasize that violations were alleged to be “serious,” a term that in OSHA parlance has a specialized sense so broad as to be nearly meaningless. Nearly all imply that guilt has already been determined. Instead of saying that OSHA was making “allegations,” they would speak of “violations” or state that OSHA had made “findings” or had “found” or “determined” something. Similarly, instead of saying that civil penalties had been “proposed” (the term used in the law), they would say that the employer had been “penalized,” or “fined,” or “ordered to pay” penalties. Only at their end would they dimly allude to the employer’s right to contest, and even then in a misleading way: it would say the employer could contest the “findings.”

It gets worse. Sometimes, press releases would make allegations or refer to events not in the citation, and thus that the employer had no way to challenge in court. Press releases have stated that violations were not only “willful” (which can be challenged) but “egregious” (which cannot). Some have announced that OSHA had placed the employer on its list of “Severe Violators,” a scarlet letter invented by OSHA that, again, lacks any recognized legal channel by which it can be challenged. Some releases have claimed that alleged violations were the cause of a particular injury; one headline stated, “Training could have prevented … [the] worker’s death.” As OSHA well knows, causation may never be tried or determined in court because it is not a necessary element of an OSHA violation. Press releases have even mentioned that the employer had been issued not a citation but a so‐​called “hazard alert letter,” which, unlike a citation, cannot be contested in court.

Some press releases have attempted to smear the innocent by implying guilt through association. For example, they have referred not merely to the cited employer, but to its corporate parent (“Smith Steel, part of the Smith Family of Companies”) even though the parent had not been issued the citation. (All names here are fictitious substitutes.) They have libeled customers of cited employers, suggesting that their demanding supply requirements were responsible for injuries. One release stated that the production targets of two named customers were “so high” that a manufacturer “cut corners on safety, at the expense of workers’ lives and limbs.” The customers cannot legally challenge these claims because they had not received citations.

Press releases have also sometimes attempted to damage the employer’s business, stating that, for example, “Its products are sold under the Acme, Sentry, Prima, and Facto brands to laundromats.” One release’s headline stated, “OSHA finds multiple safety issues at plant which supplies major auto brands”; the body of the release identified by name the charged employer’s customers. Some press releases have appealed to popular biases, such as those against foreign corporations. One news release stated, “Based in Ireland, Smith provides food and beverage products to consumers in 140 countries.”

Some press releases resort to demagoguery. Some have touted the number of times that a company has been inspected, as if to imply wrongdoing from the number of inspections. This is almost always misleading, as the inspection rate may just reflect the employer’s size; for example, one headline stated that a company “has been inspected 42 times since 2007.” That employer not only had almost 900 locations around the country but, of the 42 inspections mentioned, 20 did not result in citations. Some releases mention that the employer required OSHA to obtain an inspection warrant, ignoring that employers have a constitutional right to do so. Often, releases make lurid appeals to emotion. “John Doe’s first day at work was also his last.”; “Joan Smith was making plans for her wedding when ….”; “If Jones Corporation had not ignored the maritime industry’s most dangerous hazard, Jim Page might be alive today.”

Though OSHA has long engaged in this practice, the Obama administration supercharged it, even giving it a name: “regulation by shaming.” It seems hard to believe that a government official could be so brazen as to openly label such a policy, but that’s what then‐​head of OSHA David Michaels did. In a “vision statement,” he asserted that “ ‘regulation by shaming’ may be the most effective means for OSHA to encourage elimination of life‐​threatening hazards.” In a speech to OSHA employees, he maintained that “we will continue to practice ‘regulation by shaming’ … by issuing news releases that name employers [and] expose their failings.” He also called press releases a law “enforcement” technique, one of the “arrows in our quiver.” “I am a big fan of shaming,” he crowed.

It was thus no surprise that Michaels allowed himself to be quoted in press releases, such as saying that one employer’s action “shows a complete disregard for worker safety.” Nor did he shy from demagoguery; one press release began with his citing the “146 workers [who] died in the Triangle Shirtwaist Factory fire.” And in a 2013 speech, he claimed that OSHA will name in press releases persons it deems “responsible” for violations even if OSHA lacks authority to prosecute them.

One former high OSHA official told me that neither he nor other OSHA officials with whom he worked on press releases had ever considered the lawfulness or morality of their actions. That shows.

What’s wrong with being effective? / Sunstein assures us that regulation by shaming is effective. He may be right. Corporations consider their good names a corporate asset, a key to customer good will and therefore sales. So, regulation by shaming may well be as effective as he claims — but then, policemen routinely clubbing street corner denizens with nightsticks may well be effective in deterring loitering.

In a civilized society, however, we don’t let policemen decide whom to punish, no matter how effective that might be. In a society governed by law, punishment comes after trial, not before. The accused first has the right to be heard and present evidence, and the facts are found at trial before a neutral and detached judge. It is that judge, not the prosecutor, who decides on punishment, and the judge is confined to selecting from among those punishments authorized by law. But Congress never authorized the use of adverse publicity as an OSHA sanction, not even by the specialized impartial adjudicative tribunal it established to rule on citations. The only sanctions it authorized were monetary and injunctive, and OSHA’s only role was to propose those sanctions, not impose them.

There are civilized countries that have imposed public shaming as a punishment, and Sunstein and OSHA may profit by their example. English statutes once permitted courts to order publication of the names of those convicted of selling adulterated drugs, food, or drink, or violating a weights and measures law. Note the word “convicted.”

Sunstein recently stated, however, that agencies should engage in regulation by shaming “not to add to existing punishments, but to reduce the likelihood of future violations by others.” That is double‐​talk. The very definition of “punishment” includes the imposition of “shame … for … violation[s],” according to Webster’s Third International Dictionary. The imposition of adverse consequences to discourage conduct is a “sanction” under the federal Administrative Procedure Act, which requires that an agency must have been given legal authority to inflict it. The former high OSHA official to whom I spoke about OSHA press releases went right to the heart of the matter: “Of course they were intended to punish.”

Courts have had little trouble seeing through similar verbal smoke screens. A federal court called one agency’s campaign of “public shaming of banks” “regulation through coercive power.” A Texas court barred an agency from imposing the label “hazardous employer” as “designed to … coerce” and “deter,” “a stick to compel private employers to change their behavior.” So, let us have no more pious sophistries about how a campaign of regulation by shaming is not a form of punishment. Let us have agencies do what they expect employers to do: obey the law.

That would not be difficult. The Administrative Conference of the United States recommended back in 1973 that “all adverse agency publicity should be factual in content and accurate in description. Disparaging terminology should be avoided.” There are agencies that do just that in their press releases. There is no reason why OSHA could not issue strictly factual press releases describing in neutral language the allegations of a citation or informing the public of information about dangerous equipment or chemicals without disparaging the manufacturer.

Why doesn’t OSHA stop? / The Trump administration cut back on the harshness and frequency of punitive press releases, but they are still being issued. And if a Democrat captures the White House this fall, the old policy will likely come roaring back; union officials and others, such as Sunstein, are already urging just that.

Complaints about regulation by shaming have gone nearly unheeded. OSHA officials and their lawyers have steadfastly refused to comment on it, even when the policy is called illegal and immoral to their faces. OSHA’s lawyers evidently believe that there is no clear way by which a press release can be legally challenged. The situation very much calls to mind the observation by the great legal scholar Leon Green in his 1954 article “Public Destruction of Private Reputation — A Remedy”: “There is nothing so calculated to make officials and other men disdainful of the rights of their fellow men as the absence of accountability.”

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About the Author
Arthur G. Sapper

Ogletree Deakins