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Committee Renews Demand for Information on OSHA Joint Employer Proposal
Chairmen threaten compulsory process if Department fails to comply

As part of a year-long oversight investigation, House Education and the Workforce Committee Chairman John Kline (R-MN) and Workforce Protections Subcommittee Chairman Tim Walberg (R-MI) today sent a letter to Labor Secretary Thomas Perez calling on the Department of Labor (DOL) to comply with repeated document requests relating to a draft joint employer investigatory tool for the Occupational Safety and Health Administration (OSHA). 

The four-page draft document, leaked last year, would expand OSHA’s joint employer standard through enforcement. It would require OSHA inspectors to spend time and resources examining workplace issues that fall outside their expertise—such as brand standards and menu and product creation—when inspectors should be focused on worker health and safety. The guidance mirrors the National Labor Relations Board’s (NLRB) effort to empower union leaders by expanding legal liability to employers who do not have direct and immediate control over employees. 

As the Chairmen note in their letter

From the Department’s initial two-page response through its latest revelation that there are an additional 3,300 pages of yet-unproduced responsive documents, the Committee has patiently shown good faith throughout this inquiry. Nevertheless, more than a year later, the Department still has not produced all responsive documents; and, many of the documents it has produced contain redacted information. The Department has provided no legal justification for these failures. 

The most recent reason the Department has cited for obstructing the Committee’s oversight is a need to protect the privacy of individual complainants. To address this concern, the Chairmen write: 

As explained in a recent staff communication, the Committee is entitled to these documents and “has no interest in publicizing personal information about complainants.” Therefore, the Committee will accept production of these documents with the following information redacted: names, personal addresses, personal telephone numbers, and personal e-mail addresses of individual complainants. This good faith accommodation would both satisfy the Committee’s need for this information pursuant to its Constitutional oversight responsibilities and protect complainant confidentiality. 

The Chairmen conclude: 

The Committee believes this is a mutually satisfying solution. Further, the Committee believes these redactions can be made expeditiously because all responsive documents have purportedly been gathered. However, if the Department fails to produce all responsive documents – or inappropriately redacts the documents it does provide –  by November 4, 2016, the Committee will be forced to consider compulsory process to compel production. 

In August 2015, press reports revealed an internal draft memorandum by the Department outlining factors that would be used to determine whether an employer is jointly liable for another employer’s workplace safety and health violations. On October 13, 2015, Chairmen Kline and Walberg sent an oversight letter requesting DOL provide information relating to the Solicitor’s work with OSHA and other federal agencies, legal justification under the Occupational Safety and Health Act for the proposed changes, and any communications with the NLRB and outside stakeholders, among other requests.
To date, the Department has refused to fully comply with the Committee’s request and produce all responsive documents. Key details of the Committee’s year-long oversight investigation include: 

  • On November 18, 2015, DOL provided an incomplete, two-page response, which denied new OSHA joint employer policies had been created and stated the “Department did not coordinate with the [NLRB]” in preparing the draft memorandum. In subsequent communications between DOL and Committee staff, DOL assured the Committee this was its complete response.
  • On January 13, 2016, the Committee received information from the NLRB which called into question the veracity of the Department’s initial response. The information contained emails between DOL and NLRB officials demonstrating direct communication regarding joint employer policies.
  • On January 19, 2016, Chairmen Kline and Walberg sent a letter to DOL renewing their request for all documents, communications, and information outlined in the October 2015 letter.
  • Over the past year, the Department produced approximately 1,500 pages of documents relevant to some of the Committee’s inquiries. Many of the documents are heavily redacted, and the Department has provided no legal justification for the redactions or its refusal to produce all responsive materials. 
  • Recently, DOL offered to provide all responsive documents in unredacted form for an in camera review—a private meeting where Committee staff could review the documents. The Committee expressed openness to this proposal; however, DOL offered a series of unacceptable conditions to facilitate this review that would have undermined the Committee’s oversight responsibilities.
  • On October 13, 2016—one year after the initial oversight request—Department staff informed Committee staff there are an additional 3,300 pages of unproduced responsive documents. 

To read the letter, click here.
To read the October 2015 letter, click here.

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