Just because manufacturers object to OSHA’s new guidance that would mandate redundant, unnecessary and expensive noise abatement technology on top of already effective hearing protection doesn’t mean manufacturers are blase about harmful, loud sounds in the workplace. On the contrary. Noise annoys.

At least that’s what the Buzzcocks always said.

Here’s the group doing the song in 2007. Thirty years of loud music. Better write them up, OSHA.

UPDATE: Watching the two videos in succession, one’s struck by the changes in editing styles in music videos. The 2007 video suffers from the bane of many new music videos, so many jump cuts you can never see the performers play their instruments.

The Department of Labor’s Office of the Solicitor of Labor this morning announced its intention of extending the comment period for re-interpretation of the OSHA Noise abatement requirement by 90 days.  The original comment deadline was scheduled for December 20^th, but the National Association of Manufacturers sought additional time for public input. This 90-day extension will allow interested groups further opportunity to assess the impact of the interpretation.

As the NAM’s Keith Smith has blogged (here and here),  the Occupational Safety and Health Administration announced in late October its intention to re-interpret the meaning of “feasible” regarding noise abatement programs. The new interpretation elevates the standard for administrative and engineering controls of noise, making them required unless an employer can demonstrate that making such changes will put them out of business. The NAM sought the extension in light of the broad economic impact of such a requirement and the difficulty of gathering relevant data from which to base any decision.

A copy of the NAM request can be found here.

Joe Trauger is the NAM’s vice president for human resources policy.

Employers are becoming increasingly disturbed by the potential costs of complying with regulations coming from federal agencies in Washington, D.C. One recent item has been keeping employers awake at night is OSHA’s plan to re-interpret what’s required to protect employees from harmful levels of noise. OSHA’s proposal would not improve workplace safety but would place a huge new cost burden on employers.

The agency purports it wants to tweak an existing noise abatement standard, but in the process OSHA would reverse almost three decades of OSHA regulatory policy – a policy that’s worked quite effectively. Put simply the proposal would reinterpret the word “feasible” to mean “anything capable of being done” in the form of certain noise control efforts. The consequences are so dramatic, so costly, that the full federal rule-making process should be required. Instead OSHA is downplaying its significant by calling the proposal a “reinterpretation,” so will acknowledge cost concerns ONLY if the new requirements might put a company out of business. Is the threshold of closing down businesses going to be the new determining factor for federal regulations? We hope not.

OSHA has given the public a mere 60 days to comments on one of the most expansive proposals that the agency has crafted during this Administration, an unreasonably short period given the sweeping changes that are being sought. That’s why the National Association of Manufacturers and numerous other groups are requesting an extension to the comment deadline. Our request is available here, and the request from the Coalition for Workplace Safety is available here.

A few groups have already analyzed the impact of OSHA’s proposal. One such group, the Alaska Fire Service, highlighted some of the many flaws in a comment filed on the regulatory docket:

Interpreting “feasible” as only “capable of being done” would be an inappropropriate determining factor in enforcing aregulatory safety standard, especially this one. In our business of wildland firefighting using the above interpretation: it would be “feasible” to only fly our fire crews mid-way to a fire 200 miles away in a helicopter and then, to implement our administrative controls, land half way there & force them to hike the remaining 100 miles in the Alaska bush. Is it capable of being done? Absolutely. At the cost of potentially drowing in rivers, being attacked by bears & wolves, increasing the likelihood of slips/trips/falls, and taking an additional 8 days to reach the fire which has now grown by 5000%. Of course, 8 days would be over halfway of their maximium  14 day tour so once they arrived they have to turn around and start hiking back to base. Is this any way to implement a hearing standard?

To the Fire Service’s question we would respond a resounding “no.” Just because it may be “feasible” doesn’t necessarily mean that it should be done.

Employers now have access to affordable and extremely effective technology to protect employees from excessive workplace noise. But it’s JUST NOT ENOUGH, OSHA shouts, regulatorily.

As a Nixon-Peabody Alert puts it, “OSHA announces a radical new and enormously costly interpretation of occupational noise standards“:

With little fanfare, the federal Occupational Safety and Health Administration (“OSHA”) has quietly announced that it is considering a radical change to its interpretation of an employer’s obligations concerning employee exposure to occupational noise. The announcement may have been quiet, but the impacts will be loud. If adopted in their current form, the new obligations will be substantial and the potential cost to employers is likely to be immense.

The law firm is sending out warning to employers in light of the Oct. 19 Federal Register notice by OSHA, “Interpretation of OSHA’s Provisions for Feasible Administrative or Engineering Controls of Occupational Noise.”

The International Safety Equipment Association describes the proposal, “OSHA prepares to lower the boom on workplace noise“:

If you’re an employer with a noisy workplace, OSHA says you have to keep the sound level below a certain level, or provide your workers with PPE such as ear plugs or earmuffs. There is a condition in the regulations that says the administrative or engineering controls used to limit noise must be feasible, which OSHA has long interpreted as meaning less costly than an effective hearing conservation program using monitoring, testing, training and PPE. Now OSHA wants to revise that policy, interpreting feasible to mean “capable of being done” and setting a new threshold for affordability.

Dave Ippolito, a former OSHA compliance officer, commented in response to a blog post at the Center for Progressive Reform, supporters of the ever-expanding regulatory state. Ippolito knows what he’s talking about:

As an ex OSHA compliance officer, supervisor, and OSHA Area Director I will simply say that literal enforcement of this approach, without careful consideration could put many Americans out of work. (continue reading…)

The Department of Labor’s Bureau of Labor Statistics released data this week that show that workplace injuries and illnesses continued to drop last year. Last year saw some 400,000 fewer workplace injuries than the year before. We know many folks may say that this decrease may be the result of continued low employment that’s a result of our current economic situation (and failed federal policies that don’t support job growth!) But, the reality is the overall rate of injuries has also dropped from 3.9 cases per 100 full time workers to 3.6. This number shows that the ratio of individuals getting hurt at work is declining.

Now, there are many reasons for this improvement, but the fact is, these numbers have been steadily improving for quite some time now, and the trend is largely due to employers continuing to find new ways to make workplaces safer.

One would think that the Secretary of Labor would acknowledge this greater commitment to safety demonstrated by both private sector employers AND their employees. Unfortunately, in her statement accompanying the release, Secretary Solis leaves the impression she thinks that employers are juking the stats.

Complete and accurate workplace injury records can serve as the basis for employer programs to investigate injuries and prevent future occurrences. Most employers understand this and do their best to prevent worker injuries, but some do not. … We are concerned about the widespread existence of programs that discourage workers from reporting injuries, and we will continue to issue citations and penalties to employers that intentionally under-report workplace injuries.”

The NAM strongly supports the use of sound science and data in the development of regulations and standards (in fact it’s in our official policy positions), and the Department certainty should have the most reliable data possible to help agency leaders develop better policies.

We are also well aware that the agency has engaged in an expensive and time-consuming effort using OSHA resources to ferret out employers who have not kept their OSHA logs properly. While we look to the results of these programs, it just seems irresponsible to suggest that workplace safety improvements are not the product of safe work practices but the result of rigged data.

Ultimately, Solis and the Labor Department have gone out of their way to use a news release noting improvements in safety to suggest employers aren’t committed to safety. It’s ideology trumping reality.

OSHA issued a notice this morning announcing the agency’s intention of changing its official interpretation of workplace noise exposure standards and enforcement. Currently OSHA, and rightfully so, regulates the acceptable levels of noise that employees are exposed to in the workplace. To protect their employees against hearing loss, the agency has allowed employers to provide personal protective equipment – earplugs, ear muffs – to supplement their operating practices (like duration of exposure, frequency of use) and engineering controls (like noise dampening equipment and muffling systems). OSHA’s common-sense approach held that it was OK for employers to take this approach – personal protective equipment — toward noise prevention when it was effective.

However, OSHA plans to abandon this practice. In its notice, the agency announces its goal of requiring employers to implement all “feasible” controls – using a defintion of “feasible” that means “capable of being done”– regardless of the costs or the effectiveness of currently used personal protective equipment.

This means that employers must make sweeping changes to their workplaces — introduce new workplace practices and install new equipment — to quiet workplaces even if employees are already protected from loud noises with effective earplugs and the like.

These changes must be done regardless of their costs unless an employer can prove that making such changes will “put them out of business” or will threaten the company’s “viability,” according to the notice. This means that despite the costs of the new structural changes or the benefits of their current programs, employers will be expected to retool their workplaces. Should this change move forward, OSHA will begin enforcing this new policy with citations. Unless employers can prove to OSHA inspection officers that the changes will be economically devastating or are impossible to make, the companies will be forced to put these costly new requirements into effect.

So even though employees can be completely protected, employers will have to spend more to comply these additional OSHA requirements, costs that will be pose an extra burden on smaller businesses. The Small Business Administration recently reported that smaller firms pay nearly $3,000 more per employee than larger firms to comply with government regulations. That’s money that could be usefully spent on creating jobs and paying wages and benefits.

Yee-haw – we felt it was about time that we did another labor round up at the shopfloor.org corral.

Recusal refusal: The Wall Street Journal echoed our concerns with the National Labor Relations Board when it published an editorial earlier that examines recess-appointed NLRB member Craig Becker’s conflict of interest with his consideration of NLRB cases that involve his former employers – the AFL-CIO and the SEIU. 

Ch-ch-ch-ch-Changes: Can’t help but to think of the lyrics of the old Bowie tune when we learned of Anna Burger’s impending departure from the labor groups Change to Win and the SEIU: “I still don’t know what I was waiting for And my time was running wild”. And run wild they did. During Ms. Burger’s time the labor group has tirelessly advocated expanding government, the jobs-killing Employee Free Choice Act and radical changes at the NLRB to seat one of their own (Craig Becker.) Perhaps she realized: “Every time I thought I’d got it made It seemed the taste was not so sweet.”

When the Data Doesn’t Help Your Case, Question the Data! The top brass over at OSHA have had a hard timing understanding why injury and illness rates have shown such marked improvement over the years. So instead of acknowledging that America’s workplaces were getting safer, they questioned the accuracy of the data. In October of last year the agency launched an initiative to ferret out an alleged widespread underreporting of workplace safety incidents by employers. However, the agency quietly “paused” the program recently as regional OSHA officials expressed doubts about the program’s effectiveness, saying they were not finding significant violations.

Labor in Focus in the Rocky Mountain State: EFCA will continue to be an issue during the midterm elections. After this week’s primary elections in Colorado the voters will face a decision between two candidates that have different approaches to the card check legislation. There is incumbent Senator Michael Bennet who has not taken a clear position on the jobs-killing bill and Ken Buck, Weld County district attorney, strongly opposes the measure.

Problems with EFCA in the Mountain State: West Virginia Gov. Joe Manchin, the Democratic frontrunner in the U.S. Senate race for the late Sen. Byrd’s seat, has said he has doubts about the card check legislation if it hasn’t made it through a Democratic-controlled administration and Congress. ‘I told labor, “Something is wrong with that piece of legislation if you haven’t been able to get it passed by now,”’ Manchin said.”  Something wrong? The fact that the legislation would cost 600,000 Americans their jobs shows just how wrong it is.

We hope all candidates will realize the devastating economic impact that card check and related proposals will have on our economy and join the NAM in rejecting the misguided legislation.

Several major bills lately have included provisions to expand whistleblower protections for employees. The goal of such provisions is to allow employees to report actual employer wrongdoing, bringing regulatory violations and crimes to light in order to correct them. In the cases of the Protecting America’s Workers Act, the Robert C. Byrd Miner and Safety Act and now the Offshore Oil and Gas Worker Whistleblower Protection Act of 2010, these safeguards are meant to allow employees to report unsafe work practices by employers without retaliation.

These protections would be administered by the Department of Labor through the Occupational Safety and Health Administration (OSHA.) Would they accomplish their stated goal? Well, it’s valuable to look at how other similar whistleblower statutes have played out. OSHA currently has responsibility for processing allegations of whistleblower claims under the Sarbanes-Oxley (“Sarbox”) corporate governance laws. But in examining the caseload of these allegations of the 1,066 claims filed by employees only 25 whistleblower claims were actually upheld. This means that only about 2 percent of all of these whistleblower claims were legitimate.

This is a problem for employers, as they must use valuable resources to address all those other 98 percent of claims that have no merit and are not acted on by OSHA. These claims can be costly and further drive up the cost of doing business in the United States. As several of the aforementioned bills have expansive whistleblower enhancement included, we would hope that Congress would take the time to carefully review and debate the effectiveness of such measures.

The signs of such careful review are not encouraging. The Offshore Oil and Gas Worker Whistleblower Protection Act of 2010 was introduced by Rep. George Miller (D-CA) late Monday night and is slated to be voted on by the full House on Friday. The speedy action is far from the regular order that would allow the careful consideration of such a major bill that would divert resources away from job creation.

The House Education and Labor Committee continues to quickly move forward with misguided legislation to overhaul our nation’s workplace safety laws. On Wednesday July 21st the Committee marked up H.R. 5663, the Miner Safety and Health Act. As we have noted previously, the bill goes far beyond the regulation of mining to rewrite vast portions of the Occupational Safety and Health Act that affect all businesses. During the mark-up session Committee Chairman George Miller (D-CA) offered a manager’s amendment that made no improvements to the bill’s excesses. The amendment did, however, rename the legislation the Robert C. Byrd Miner Safety and Health Act of 2010.

The Committee rejected amendments that would have improved the legislation. Rep. Cathy McMorris-Rodgers (R-WA) proposed an amendment to strike the far-reaching OSHA provisions in order to keep the legislation focused on addressing mine safety issues. Rep. Tom Price (R-GA) also offered an amendment to strip out one of the more egregious provisions of the bill, language that radically expands criminal penalties for certain OSHA violations via a nebulous system that requires simply a “knowing” standard. Such a standard is unheard of in safety laws and would significantly deter efforts by manufacturers to prevent accidents in the workplace.

Manufacturers regularly perform safety audits of their workplaces in order to assess any potential hazards that may exist. However this provision would find “any company officer or director” subject to criminal penalties if an employee was seriously injured as a result of hazard identified in the audit – even if the employer was in the process of making the necessary changes to address the hazard.

It is very unfortunate that the bill is moving forward without the kind of bipartisan approach more likely to produce common-sense reforms to our safety laws. The bill has the potential to come up for a vote next week during House leadership’s push for manufacturing-oriented legislation. It seems counterintuitive, to say the least, to be pushing legislation that would burden employers with additional costs and more threats of litigation during a time when Members of Congress have publicly committed themselves to improving the competitiveness of our manufacturing economy.

The House Education and Labor Committee on Tuesday held a hearing on H.R. 5663 the Miner Safety and Health Act of 2010. A casual observer would assume that a bill with such a name would be focused on mine safety issues. However, this bill would actually enact the most sweeping change to OSHA since the 1970s. Rather than encouraging employers in their efforts to make workplaces safer, the bill would place new costs on business and increase the threat of litigation.

The proposal would make it more difficult for employers to reach settlements with OSHA by significantly raising the fines for alleged violations while implementing vague new criminal penalties on companies without defining how the responsibility for violations would be determined. This approach, with the threat of capricious enforcement, will do nothing to help employers to prevent accidents from occurring the first place. To be effective in its mission, OSHA needs to serve a resource for employers as well as an enforcement agency.
The NAM is not alone in our opposition to this misguided bill. We co-chair the Coalition for Workplace that has been urging members of Congress to recognize this legislation’s flawed approach. During yesterday’s Committee hearing Rep. Lynn Woolsey (D-CA) demanded to know who the members of the Coalition were. Jonathan Snare of the lawfirm Morgan Lewis who testified on behalf of our coalition, pointed out to the Congresswoman that a list of many of the group’s members is available on-line at http://workingforsafety.com. Additionally, a list of more than 100 Coalition members who oppose the legislation can be found on this letter sent to Committee members yesterday.

Snare’s prepared statement is available here.