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Senate: Please confirm two NLRB nominees
May 26, 2005 by Ross Runkel at LawMemo
The President has nominated Ronald E. Meisburg and Dennis P. Walsh to serve as Members of the National Labor Relations Board. Now the Senate should confirm them without delay.
Both previously served with distinction as Board Members. Meisburg faithfully represents the traditional Republican view, and Walsh faithfully represents the traditional Democrat view. Great balance. The Board has had two vacancies for long enough. It is time for the Senate to do its job.
Meisburg, a Republican, previously served as a Member of the NLRB under a recess appointment made by President Bush on December 26, 2003. That appointment expired December 16, 2004.
Prior to serving on the Board, Meisburg had been a shareholder with Ogletree, Deakins, Nash, Smoak & Stewart, P.C. in Washington, D.C. He previously was a partner with Heenan, Althen & Roles in Washington, and served at the U.S. Department of Labor in the Office of the Solicitor of Labor. While at the Department of Labor, Mr. Meisburg served in the Division of Employee Benefits and the Division of Mine Safety and Health and was awarded the Secretary of Labor's Distinguished Achievement Award. He received a B.A. degree from Carson-Newman College in 1969 and a J.D. from the University of Louisville in 1974.
Mr. Meisburg was president of the Energy and Mineral Law Foundation (1994 - 1995); a member of the Employment Lawyers Advisory Council of the National Association of Manufacturers (1996-1998); and a member of the Industrial Relations Committee of the U.S. Council for International Business (1993-1998).
Mr. Meisburg is married to Mary Helen Ratchford. The family resides in Arlington, VA.
Walsh, a Democrat, previously served as a Member of the NLRB from December 30, 2000 to December 20, 2001 under a recess appointment by President Clinton, and again under a regular appointment by President Bush from December 17, 2002 to December 16, 2004.
Walsh was Chief Counsel to Member Wilma B. Liebman, and from 1994 to 1997, he was Chief Counsel to Member Margaret A. Browning.
A native of Oxford, NY, Mr. Walsh was a career NLRB attorney from 1984 to 1989, serving as an attorney-advisor in the Office of Representation Appeals; staff counsel on the staff of Member Patricia Diaz Dennis; staff attorney in the Appellate Court Branch; and field attorney with the NLRB's Philadelphia office (Region 4). From 1989 to 1994, he was an associate at the law firm of Spear, Wilderman, Borish, Endy, Browning and Spear in Philadelphia.
Mr. Walsh is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review. He received a B.A. degree, summa cum laude, in Government from Hamilton College in 1976.
Mr. Walsh is married to Barbara A. O'Neill, an attorney. They are the parents of two children: Steven and Rose. The family resides in Olney, Maryland.
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Correction: Rehearing on use of state funds.
May 25, 2005 by Ross Runkel at LawMemo
Big mistake in my March 22 entry [here] regarding this case. The 9th Circuit did not order an en banc rehearing. It ordered an "ordinary" rehearing by the same 3-judge panel that originally heard the case. So, here's the truth:
California ties a string to state-funds grants over $10,000: Private employers can't use the money "to assist, promote, or deter union organizing."
A 9th Circuit panel ruled that the NLRA preempted the statute, and now the the panel will rehear the case. Chamber of Commerce of the United States v. Lockyer (9th Cir 04/20/2004) is the original panel decision. Order granting rehearing (9th Cir 05/13/2005): is [here].
California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."
A 9th Circuit panel held that these provisions are preempted by the National Labor Relations Act (NLRA) under the "Machinists" preemption doctrine (Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 US 132 (1976)). The panel stated, "[w]e are constrained to conclude that California--acting as a regulator, not a proprietor in imposing these restrictions--has acted in such a way as to undermine federal labor policy by altering Congress' design for the collective bargaining process." The panel rejected the argument that "the statute merely affects California's use of its own funds," observing "[t]he statute will alter the NLRA process of collective bargaining and union organizing, because an employer who decides against neutrality will incur both compliance costs and litigation risk."
Compare Hotel Employees Union v. Sage Hospitality Resources (3rd Cir 11/15/2004) which upheld a city plan which conditioned a grant of tax increment financing on acceptance of a labor neutrality agreement. On the unique facts there, the 3rd Circuit held that the city acted in its proprietary capacity, so there was no preemption.
My view: The original panel decision was well written, but probably wrong.
Machinists preemption is designed to keep states from regulating certain activity that Congress wants to be unregulated by anybody. The relevant activity here is an employer (or a union) expressing its opinion either for or against union organization. That's NLRA Section 8(c).
California law does not limit employers' ability to express their opinions; it merely says they can't spend state money to do so. Whatever employers could say before the statute they can still say. It's just that state money must be spent on other things. Hence, in my view, no real interference with Congress's policies, and no preemption.
Stephen F. Befort (law prof at University of Minnesota Law School) and Bryan N. Smith have written a great article about this case - At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, with lots of background and lots of opinions. Oh, yes, they agree with me. Or I agree with them.
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NASD rules preempt state ethics rules for arbitrators
May 23, 2005 by Ross Runkel at LawMemo
The California Supreme Court says the National Association of Securities Dealers (NASD) rules preempt California's "Ethics Standards For Neutral Arbitrators in Contractual Arbitration," and all of the California ethics rules are preempted. Jevne v. Superior Court (California 05/23/2005).
This case was between a brokerage and a customer, and will have an impact on employee-employer arbitrations conducted by the NASD.
California and the NASD both have rules requiring disclosures by neutral arbitrators, and California's are more extensive and complex. Both California and the NASD have rules under which arbitrators can be disqualified.
The NASD rules were specifically approved by the Securities Exchange Commission, which gave them the force of federal law and ultimately the power of the federal government to preempt state law.
The court identified four types of possible preemption: (1) where the federal statute expressly preempts (not here), (2) where the federal statute occupies a whole field of law (not here), (3) where it is actually impossible to comply with both federal and state law requirements (not here), and (4) where the state law could prevent or impair accomplishment of the purposes and objectives of the federal law (Bingo, that's it).
The logic: NASD is regulated by the Securities Exchange Commission (SEC), which is created by the Securities Exchange Act (SEA). SEA's objectives: fair dealing and investor protection. All NASD rules are reviewed and approved by the SEC, so they have the force of law. SEC's opinion is that California's rules have three negative effects on NASD arbitrations: (1) increased administrative costs, (2) reduction of the number of available arbitrators (because many are unwilling to comply), and (3) reduction of nationwide uniformity of NASD arbitrations.
Other California ethics rules could not be severed, said the court, so the whole works was preempted.
My view: We got the same result from the 9th Circuit in Credit Suisse v. Grunwald (9th Cir 03/01/2005), although the reasoning was a little different. [See blog]
Now the question is whether there is any possibility that the outcome will be different for employment arbitrations conducted by NASD. It seems the outcome would be the same.
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Article on Restatement Of Employment Law
May 23, 2005 by Ross Runkel at LawMemo
Law Professor Matthew W. Finkin at the University of Illinois has a lot to say about the proposed Restatement Of Employment Law. Matthew W. Finkin, Second Thoughts On A Restatement Of Employment Law, 7 Journal of Labor and Employment Law ___ (2005). Download it [here].
Abstract: "The American Law Institute has circulated a draft of a proposed Restatement of the Law of Employment. The author takes a close look at what the project has chosen to cover and what it has chosen not to cover; and, in particular, undertakes a detailed examination of its proposed treatment of wrongful dismissal. The essay criticizes the lack of any explanation of the project's purposes, of the choices it has made in coverage and approach, and in failing to attend to the most pressing areas calling for law reform. It singles out the draft's approach to wrongful dismissal for failing to confront the real issue posed by the erosion of the at-will rule and, at best, as tending to ossify an as yet unsettled (and unsettling) body of law. The essay proposes alternatives on both accounts."
My view: The article justifiably rips the Restatement draft to shreds.
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En banc rehearing on use of state funds (corrected)
May 22, 2005 by Ross Runkel at LawMemo
CORRECTION (added on 05/25/2005): The 9th Circuit did not order an en banc rehearing. It ordered an "ordinary" rehearing by the same 3-judge panel that originally heard the case.
California ties a string to state-funds grants over $10,000: Private employers can't use the money "to assist, promote, or deter union organizing."
A 9th Circuit panel ruled that the NLRA preempted the statute, and now the 9th Circuit will rehear the case en banc with a panel of 11 judges. Chamber of Commerce of the United States v. Lockyer (9th Cir 04/20/2004) is the panel decision. Order granting rehearing (9th Cir 05/13/2005): is [here].
California Gov't Code Section 16645.2(a) bars private employers who are "recipient[s] of a grant of state funds" from "us[ing] the funds to assist, promote, or deter union organizing." Similarly, Section 16645.7(a) bars "a private employer receiving state funds in excess of [$10,000] in any calendar year on account of its participation in a state program" from using such funds "to assist, promote, or deter union organizing."
A 9th Circuit panel held that these provisions are preempted by the National Labor Relations Act (NLRA) under the "Machinists" preemption doctrine (Lodge 76, International Association of Machinists & Aerospace Workers v. Wisconsin Employment Relations Commission, 427 US 132 (1976)). The panel stated, "[w]e are constrained to conclude that California--acting as a regulator, not a proprietor in imposing these restrictions--has acted in such a way as to undermine federal labor policy by altering Congress' design for the collective bargaining process." The panel rejected the argument that "the statute merely affects California's use of its own funds," observing "[t]he statute will alter the NLRA process of collective bargaining and union organizing, because an employer who decides against neutrality will incur both compliance costs and litigation risk."
My view: The original panel decision was well written, but probably wrong.
Machinists preemption is designed to keep states from regulating certain activity that Congress wants to be unregulated by anybody. The relevant activity here is an employer (or a union) expressing its opinion either for or against union organization. That's NLRA Section 8(c).
California law does not limit employers' ability to express their opinions; it merely says they can't spend state money to do so. Whatever employers could say before the statute they can still say. It's just that state money must be spent on other things. Hence, in my view, no real interference with Congress's policies, and no preemption.
Stephen F. Befort (law prof at University of Minnesota Law School) and Bryan N. Smith have written a great article about this case - At the Cutting Edge of Labor Law Preemption: A Critique of Chamber of Commerce v. Lockyer, with lots of background and lots of opinions. Oh, yes, they agree with me. Or I agree with them.
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Gender-specific standards go to en banc hearing
May 16, 2005 by Ross Runkel at LawMemo
The 9th Circuit has ordered [here] an en banc rehearing in Jespersen v. Harrah's Operating Co (9th Cir 12/28/2004), where a 3-judge panel allowed an employer to fire a bartender for non-compliance with gender-specific grooming standards.
Darlene Jespersen sued under Title VII claiming that the employer's policy requiring females to wear makeup was discrimination on the basis of sex. The trial court granted summary judgment for the employer; the 9th Circuit (2-1) affirmed.
Jespersen was a bartender for nearly 20 years and was an outstanding employee. The employer implemented an appearance standard for beverage servers, which included gender-specific standards for male and female beverage servers. Females were required to wear makeup, stockings, and colored nail polish, and to wear their hair teased, curled, or styled. Males were prohibited from wearing makeup or colored nail polish, and were required to maintain short haircuts and neatly trimmed fingernails. Jespersen refused to comply with the requirement to wear makeup, and the employer discharged her for that reason.
(1) The 9th Circuit relied primarily on the "unequal burdens" test announced in Franks v. United Airlines, 216 F3d 845 (9th Cir 2000) (en banc). In the Franks case female flight attendants challenged the employer's weight restrictions because women were held to more strict requirements than men. The court in Franks held that a "sex-differentiated appearance standard that imposes unequal burdens on men and women is disparate treatment that must be justified as a BFOQ."
Applying the unequal burdens test to this case required the court to "weigh the cost and time necessary for employees of each sex to comply" with the employer's policy. (a) First, the court decided that the burdens must be evaluated with reference to all of the requirements of the employer's appearance policy, not merely that portion dealing with wearing makeup. (b) Second, the court considered Jespersen's argument that the makeup rule imposes tangible burdens on women that men do not share because makeup can cost hundreds of dollars a year and requires a significant investment of time. The court noted that Jespersen cited academic literature in support of her cost and time argument, but that she did not submit evidence of the cost and time burdens that apply to female bartenders. (c) Third, even if the court took judicial notice of the academic literature, there was no evidence of the actual burdens that apply to male bartenders, so the court would be unable to weigh the difference.
(2) Jespersen also argued that the employer's policy required employees to conform to sexual stereotypes and that this was made impermissible by Price Waterhouse v. Hopkins, 490 US 228 (1989). The 9th Circuit recognized that Price Waterhouse held that Title VII bans discrimination on the basis of an employee's failure to dress and behave according to the stereotype corresponding to her gender. However, that case did not address sex-differentiated appearance and grooming standards. Also, although the 9th Circuit has "applied the reasoning of Price Waterhouse in sexual harassment cases, we have not done so in the context of appearance and grooming standards cases, and we decline to do so here."
DISSENT: The dissent argued that this was a classic Price Waterhouse case, and that there was no grounding in Title VII for holding that harassing an individual for failure to comply with gender stereotypes is illegitimate while discharging them for the same reason is acceptable. As for the unequal burdens test, the dissent argued that the focus should be on the makeup rule rather than the entire appearance policy, and that the court should weigh more than time and money - the court should also weigh the sex-stereotyping inherent in certain appearance standards.
My view: The 9th Circuit blew it in the original panel decision.
(1) An "equal burden" analysis in a case like this is nonsense. You don't need to even get into the murky realm of Price Waterhouse gender stereotypes. The employer had a double-standard for males and females. Unlawful on its face. If there were some biological basis for the distinction (separate rest rooms, for example), I could be swayed. But not for makeup, hair-teasing, and fingernails.
(2) Worse nonsense is the court's notion that it's legal to fire someone for non-compliance with a gender stereotype, although it's illegal to harass her for the same thing.
Michael Fox first blogged about this case at Jottings By An Employer's Lawyer [here]. His most recent comment is [here].
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Tum v. Barber Foods - Petitioners' brief
May 16, 2005 by Ross Runkel at LawMemo
Petitioning employees have filed their US Supreme Court brief [pdf] in Tum v. Barber Foods, which will be argued next fall.
Quoting from the brief:
QUESTIONS PRESENTED This Court has held that employees are entitled to compensation under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act, for the time their employer requires them to spend donning and doffing health and safety equipment.
The Questions Presented are:
1. Are employees entitled to compensation for the time they must spend walking to and from required health and safety equipment distribution stations?
2. Are employees entitled to compensation for time they must spend waiting to receive equipment at required health and safety equipment distribution stations?
Courtesy of SCOTUSBlog, one of whose authors, Thomas Goldstein of Goldstein & Howe, is counsel of record for petitioners. Tom says, "Kevin Russell worked heavily on the case with a team from the Stanford Supreme Court Litigation Clinic - Rachel Kovner, Michael Mongan, and Julia Lipez."
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Is 15-employee threshold jurisdictional?
May 16, 2005 by Ross Runkel at LawMemo
Federal circuit courts have long been split on the question of whether Title VII's 15-employee threshold determines federal court subject matter jurisdiction, or is merely a matter going to the merits of a Title VII claim.
The US Supreme Court says it will review the question. Arbaugh v. Y & H Corp (Docket No. 04-944), certiorari granted 05/16/2005, Decision below: Arbaugh v. Y&H Corp (5th Cir 08/02/2004)
Arbaugh sued in federal court under Title VII and state tort law. She worked at the Moonlight Cafe in New Orleans, and claimed that one of the owners of the corporation subjected her to a sexually hostile environment. A jury returned a verdict for Arbaugh.
Now get this. After the jury verdict, the defendants moved to dismiss for lack of subject matter jurisdiction, citing Title VII's definition of an "employer" and pointing out that the defendant corporation did not employ 15 or more employees and thus was not an "employer" under Title VII. The trial court converted the motion to a motion for summary judgment, and granted the motion. So, case dismissed for lack of subject matter jurisdiction.
The 5th Circuit affirmed, holding that Title VII's 15-employee threshold determines federal court subject matter jurisdiction, and is not merely a matter going to the merits of a Title VII claim. The US Supreme Court granted certiorari to review the 5th Circuit decision.
The Courts of Appeals are split on this issue.
Courts holding it is jurisdictional are the 4th, 6th, 9th, 10th, and 11th Circuits. Courts holding it is non-jurisdictional are the 2nd, 7th, and Federal Circuits.
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Walsh re-nominated to NLRB
May 05, 2005 by Ross Runkel at LawMemo
The President has re-nominated Dennis P. Walsh to the NLRB. Walsh served as a Member of the National Labor Relations Board from December 30, 2000 to December 20, 2001 under a recess appointment by President Clinton, and again under a regular appointment by President Bush from December 17, 2002 to December 16, 2004.
Walsh is a Democrat, and can be counted on to provide a clear pro-union view on matters of NLRB policy.
An excellent account of Walsh's NLRB record is provided in the Labor Law Blog.
The Board is currently working with only three Members instead of five. The President has also re-nominated Republican Ronald E. Meisburg (See my Meisburg blog [here]) and both nominations are pending confirmation by the Senate.
Walsh was Chief Counsel to Member Wilma B. Liebman, and from 1994 to 1997, he was Chief Counsel to Member Margaret A. Browning.
A native of Oxford, NY, Mr. Walsh was a career NLRB attorney from 1984 to 1989, serving as an attorney-advisor in the Office of Representation Appeals; staff counsel on the staff of Member Patricia Diaz Dennis; staff attorney in the Appellate Court Branch; and field attorney with the NLRB's Philadelphia office (Region 4). From 1989 to 1994, he was an associate at the law firm of Spear, Wilderman, Borish, Endy, Browning and Spear in Philadelphia.
Mr. Walsh is a 1983 cum laude graduate of Cornell Law School, where he was an Editor of the Law Review. He received a B.A. degree, summa cum laude, in Government from Hamilton College in 1976.
Mr. Walsh is married to Barbara A. O'Neill, an attorney. They are the parents of two children: Steven and Rose. The family resides in Olney, Maryland.
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FLSA opinion letters on line
May 04, 2005 by Ross Runkel at LawMemo
The Department of Labor web site is publishing Opinion Letters dealing with the Fair Labor Standards Act (FLSA) [here]. Nice job, DOL.
Thanks to Janell Grenier who writes BenefitsBlog and to Diane Pfadenhauer who writes Strategic HR Lawyer for tipping me off about this.
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Skimpy EEOC charge was good enough
May 04, 2005 by Ross Runkel at LawMemo
Does an EEOC charge really have to state facts as to harassment in order to bring a Title VII suit? Maybe not, according to the 11th Circuit.
Freddy Green's pro se EEOC charge checked the box for race discrimination and gave one single date for both the "earliest" and "latest" dates. As for factual particulars he wrote:
I. I was employed from March 7, 1995 until my discharge January 2, 2001. I was terminated for violation of the attendance policy, but I have no written warnings for attendance. White males that have written warnings and have committed further violations were not terminated.II. Management stated I was discharged because of violation of the attendance policy.
III. I believe that I have been discriminated against because of my race (black) in violation of Title VII of the Civil Rights Act of 1964, as amended.
When Green sued for both racially discriminatory (a) discharge and (b) harassment, the trial court found enough evidence of both, but ruled that his EEOC charge was procedurally defective as to the harassment claim. Green won a jury verdict on the discharge claim, and appealed from the denial of the harassment claim.
The 11th Circuit ruled (2-1) that the harassment claim could go forward. Green v. Elixir Industries (11th Cir 04/29/2005). The court said Green's harassment and discharge claims were "inextricable intertwined," pointing to pre-discharge harassment facts that were introduced as evidence of the employer's motive for the discharge. The reasoning: if this evidence was "related to" the discharge claim, then it was "related to" the harassment claim.
In addition, the EEOC charge mentioned race discrimination, which racial harassment clearly is. The court also emphasized that one purpose of the EEOC charge is to put the employer on notice of the allegations, and the person who was responsible for the discharge was intimately familiar with the alleged harassing conduct.
The dissent said Green failed to allege facts sufficient to inform the EEOC that he was complaining of hostile work environment. "Green's EEOC charge does not allege a single fact that reasonably could have been expected to prompt the EEOC to investigate a charge of hostile work environment."
My view: This case takes the rules to the outer limit.
There really was nothing in the EEOC charge that would suggest to the EEOC that Green had a harassment claim. Indeed, the statement of a single date plus Green's emphasis on discharge would suggest that harassment was not an issue.
Therefore, if the purpose of an EEOC charge is to allow the EEOC to investigate and try to resolve claims without law suits, then the charge was woefully defective.
If, however, the purpose of the EEOC charge is to put the employer on notice, you could look at it two ways. One is what the majority said, which is that the employer's decision maker knew all the harassment facts and didn't need to be told. The other is that Green's failure to even hint at harassment meant that he was not making a harassment claim.
I don't expect to see other Circuits following this decision.
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Legalese torpedoes waiver of ADEA claims
May 03, 2005 by Ross Runkel at LawMemo
When IBM terminated folks in a RIF, they asked Dale Thomforde to sign a form called "General Release and Covenant Not to Sue." Although the form was drafted as a general release of all claims, Thomforde noticed some language in the form about suing IBM under the ADEA. He asked his supervisor if that language would allow him to sue IBM if the case was limited to the ADEA. The supervisor asked the legal department and then told Thomforde that the company's attorney was "not comfortable providing an interpretation for you and suggested you consult with your own attorney."
IBM's drafters set the form up as both a release of all claims and a covenant not to sue. They created an exception to the covenant (but not to the release) for ADEA suits. Why? To allow a suit challenging the validity of the waiver, but not to allow suits on the merits of the ADEA.
The Older Workers Benefits Protection Act (OWBPA) requires waivers of ADEA rights to be "written in a manner calculated to be understood by such individual, or by the average individual eligible to participate."
In Thomforde v. IBM (8th Cir 05/03/2005) the 3rd Circuit said the difference between a release and a covenant not to sue "may not be readily apparent to a lay reader." (Chuckle. A lot of lawyers are equally clueless. That's no criticism of lawyers, just something IBM might have thought of when they were drafting.) "Once IBM chose to use the legal terms of art ..., IBM had a duty to carefully explain the provisions." The form also used the terms release and covenant in a way that suggested they were interchangeable.
So, combining the "lack of clarity" in the form plus IBM's not telling Thomforde what it meant by the language - presto - not "written in a manner calculated to be understood." The release did not satisfy the OWBPA requirements, so it was not a bar to an ADEA suit on the merits.
My view: I must confess; when I first read the document I was not sure what it was intending to say about ADEA claims, and it appeared to be internally inconsistent. So I was not surprised by the court's decision.
A case involving a similar agreement is pending in the 9th Circuit. Syverson v. IBM (ND Calif 05/04/2004), appeal docketed, No. 04-16449 (9th Cir 07/26/2004). Knowing the 9th, I expect the same result.
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Military recruiting issue goes to Supreme Court
May 02, 2005 by Ross Runkel at LawMemo
On May 2, 2005 the US Supreme Court agreed to decide "Whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement?" Rumsfeld v. Forum For Academic and Institutional Rights (Docket No. 04-1152).
Lots of details at SCOTUSBlog: Court to rule on "Solomon Amendment"
Many law schools have tried to exclude military recruiters, and the government response has been to threaten withdrawal of funding - not just for the law school, but for the whole university. The law involved is the "Solomon Amendment."
Many schools have policies against discrimination on the basis of sexual preference, and refuse to allow the use of school resources for recruiting by employers who engage in sexual preference discrimination - including the military.
The 3rd Circuit held (2-1) that the law schools were likely to prevail on their first amendment arguments, and were entitled to a preliminary injunction against enforcement of the Solomon Amendment. Forum For Academic and Institutional Rights v. Rumsfeld (3rd Cir 11/29/2004). The 3rd Circuit issued a stay pending review by the Supreme Court.
My view: I'm doubtful that there are five justices that will agree with the 3rd Circuit. Schools remain free to teach and to say whatever they like, and to hire faculty on whatever basis they like. Any restriction on free speech (or association) seems quite incidental, especially when weighed against the Congress' powers regarding the spending power and the powers relating to war and the military.
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Feds target OSHA crimes
May 02, 2005 by Ross Runkel at LawMemo
Combine OSHA and EPA and some DOJ prosecutors, and what do you get? A coordinated effort to criminally prosecute the most flagrant workplace safety violators.
With Little Fanfare, a New Effort to Prosecute Employers That Flout Safety Laws, a New York Times article, says the government will begin using laws that carry stiffer penalties than the workplace safety laws do. These include environmental laws, conspiracy statutes, RICO, and Sarbanes-Oxley.
My view: It's nice to see some creative collaboration among government agencies. I'm always skeptical about the effectiveness of criminal law in regulating corporate conduct, but perhaps it will help curb some of those who deliberately violate basic safety rules.
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