WASHINGTON—Today, the Senate passed H.J. Res. 83, disapproving the rule issued by the Department of Labor relating to “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness,” under the Congressional Review Act (CRA). H.J. Res. 83, passed the House earlier this week (231-191). This marks the first major legislative victory for the Louisiana delegation in the 115th Congress.
The Occupational Safety and Health Act provides for a six month period for which OSHA can issue citations to employers who fail to maintain proper records of injuries and illnesses that occur at work. OSHA took action against Volks Constructors of Praireville, Louisiana in 2006 for record keeping violations that occurred nearly five years earlier, well beyond the six month statute of limitations. Volks challenged OSHA in the DC Circuit Court of Appeals for those citations and won. OSHA promulgated the rule in question to continue their illegitimate practice of issuing citations outside of the statute of limitations.
“The Obama administration routinely used executive authority to disregard judicial oversite. This Joint Resolution will ensure that our government faithfully follows the letter and spirit of the law,” said Dr. Cassidy. “This Louisiana company was right to challenge OSHA’s unlawful power grab I am proud Congress took action to enforce the court’s ruling.”
Conpanion legislation S.J. Res. 27 was introduced in the Senate on March 3, 2017 by US Senators Bill Cassidy, MD (R-LA), Orrin Hatch (R-UT), Johnny Isakson (R-GA) and Steve Daines (R-MT).
Earlier today, Cassidy spoke on the Senate Floor urging support for S.J. Res. 27. Click here to watch. See the remarks as prepared for delivery at the bottom of this release.
Under the Occupational Safety and Health Act, certain employers are required to record injuries and illnesses that occur at work and maintain those records for five years. Under the law, the Occupational Safety and Health Administration (OSHA) can issue citations for six months after a recordkeeping violation occurs.
However, it was a long standing practice of OSHA (based on their interpretation of law) that it should be able to issue citations for the entire five-year period for which it believed employers must keep injury and illness records. The Occupational Safety and Health Review Commission (OSHRC) allowed OSHA to continue the practice by agreeing that citations can cover cases for which the recordkeeping obligation arose any time during the five-year record retention period.
Volks Constructors, located in Prairieville, LA, challenged OSHA in the DC Circuit Court of Appeals for recordkeeping violations that occurred beyond the six month statute of limitations. The Court agreed with Volks with a three judge unanimous opinion, including the opinion of Merrick Garland, stating that the law is clear and unambiguous in the six month statute of limitations for issuing citations.
To negate the court ruling, and allow OSHA to continue issuing citations beyond the six month limitation in the law, OSHA promulgated the rule, “Clarification of an Employers Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness.” This effectively extended the statute of limitations on violations to five years. The rule was finalized on December 16, 2016 (RIN 1218-AC84).
Senators Cassidy, Hatch, Isakson and Daines’s joint resolution will halt the rule and allow Congress an opportunity to review any changes to the law.
Congressional Review Act
The 1996 Congressional Review Act (CRA) requires agencies to submit regulations to Congress and the Government Accountability Office for review. Regulations can be blocked by a joint resolution of disapproval that the Senate can consider under special expedited procedures and pass with a simple majority. If a rule is overturned, an agency cannot take a similar action unless Congress passed another law allowing it. Both chambers must pass such a measure, which has to be introduced within 60 legislative days of the regulatory action and can be signed or vetoed by the president.
Senator Cassidy’s floor remarks (March 22, 2017) as prepared for delivery:
I rise in support of H J Res 83 and its Senate companion, S J Res 27, a resolution I introduced along with several of my colleagues, to stop the Obama administration Department of Labor’s regulation, known as the Volks Rule, from expanding the statute of limitations for record keeping violations, under the Congressional Review Act (CRA). This regulatory scheme represents a backwards approach to workplace safety and it is a blatant overreach by the federal government.
Under the Occupational Safety and Health Act, employers are required to record injuries and illnesses that occur in the workplace and maintain those records for five years. The law provides for a six month period for which OSHA can issue citations to employers who fail to maintain these records properly. However, it was the practice of OSHA, based on their interpretation of the law, that they should be able to issue citations for the entire five-year period that employers must keep these records. Under this practice, OSHA took action against Volks Constructors in 2006 for record keeping violations that occurred nearly five years earlier, well beyond the six month statute of limitations.
Volks Constructors, located in Prairieville, Louisiana, is a heavy industrial contractor that provides manufacturing services and industrial specialties to the petrochemical and related industries. It has been in business for more than 40 years. Volks challenged OSHA in the DC Circuit Court of Appeals for those citations and won.
The Circuit Court of Appeals issued a unanimous three judge opinion rebuking OSHA’s attempt to file citations past the statute of limitations. One of the three judges was President Obama’s Supreme Court nominee, Judge Merrick Garland. The Volks ruling has since been upheld by the Fifth Circuit Court of Appeals.
Let me read a few of the comments from the court’s opinion:
“We do not believe Congress expressly established a statute of limitations only to implicitly encourage the Secretary to ignore it.” Volks, 675 F.3d at 756.
“The Act clearly renders the citations untimely, and the Secretary’s arguments to the contrary relies on an interpretation that is neither natural nor consistent with our precedents.” Volks, at 759.
And from Judge Garland’s concurring opinion, “[B]ecause none of the challenged citations were issued within six months “following the occurrence of any violation,” 29 USC § 658(c), I agree with my colleagues that the petition for review should be granted and the citations vacated.” Volks, Garland concurring at 764.
While the court was clear in its ruling, OSHA, in order to negate such ruling and continue issuing citations beyond the six month statute of limitations, promulgated this regulation, the Volks Rule.
This joint resolution must invalidate The Volks Rule. The Volks Rule is a clear violation of the court’s ruling and it is in direct contradiction of the six month statute of limitations. Only Congress can amend a federal statute. Article I of the US Constitution is clear. Members of the legislative branch write the laws, not the federal departments and agencies.
Overturning the Volks Rule will not decrease workplace safety. The rule only changes the window during which OSHA can issue citations for record keeping violations. This rule is about paperwork violations and not worker health or safety.
This rule also creates regulatory confusion for small businesses. By finalizing this unlawful regulation, the Obama administration created significant uncertainty for employers, facing a confusing maze of record keeping standards and unwarranted litigation.
This joint resolution is supported by the US Chamber of Commerce, the Association of General Contractors, the National Home Builders Association, the National Restaurant Association, and the National Retail Association, along with more than 70 state and national organizations.
I urge my colleagues to support this joint resolution and allow Congress to review the law and make changes, if needed. It is the right thing to do.