July 14, 2005--A package of legislation that aims to bolster small businesses' clout in challenging Occupational Safety and Health Administration citations passed Tuesday in the U.S. House of Representatives, and could quickly make its way through the U.S. Senate.
The most notable provision of the bills would allow companies with revenue less than $7 million and fewer than 100 employees to recover attorney's fees if they successfully challenge an OSHA citation. This would make contesting the citation worthwhile for small business owners whose costs for legal representation exceed the amount of the citation fee, said John Stone, spokesperson for Rep. Charles Norwood, R-Ga., who sponsored all four bills (H.R. 739 - 742).
Norwood is concerned that OSHA abuses its power through what he calls "legal extortion" and "court-cost blackmail," Stone said, which Norwood ran into as a small business owner before joining the House in 1994. Norwood senses that small business owners are still intimidated by OSHA.
Betty Owens, president of a Cincinnati-based construction company, said although her company has been fortunate with OSHA so far, she thinks the agency is unrealistic and harsh. The one OSHA citation her business received cost her $6,000 to contest, and even though she won, it was taxing.
"The way I look at it, as a small business owner, is one citation from OSHA could possibly put us out of business," she said. "And that's what scares us so much about it."
Democrats, like Rep. Major Owens from New York, who voted against the bills, said Republicans are trying to slowly chip away at OSHA's power to make the agency ineffective by forcing it to focus precious budget dollars elsewhere. Owens, who is the ranking Democrat on the Workforce Protection subcommittee, plans to fight the legislation with his fellow Democrats in the Senate.
Another hotly contested provision in the package is expanding the U.S. Occupational Safety and Health Review Commission from three committee members to five, which Norwood believes will speed up a slow-moving review process. Art Sapper, a partner in the law firm McDermott, Will & Emery in Washington, D.C., said while it doesn't take long to get a hearing, it does take too long for the commission to reach a final decision. Sapper said he represents a case against OSHA that's been pending for 10 years.
But Democrats believe adding two more members is the wrong solution. Rep. Owens said if there's a problem getting commissioners to attend meetings, there's another way to address it than by "allowing the President to pack the commission."
The package of bills also would allow business owners more leeway with the 15-day rule, which requires businesses to respond to a citation within 15 days of its issuance. If a business does not respond within 15 days, they are automatically considered guilty. Rep. Owens said OSHA is very flexible about this rule, and doesn't believe more leeway is necessary. While this has been true under Republican leadership, attitudes could change quickly, said Sapper.
"Congress is trying to make sure the 15-day rule isn't subject to the whims of elections, and want to write it into law, he said.
The four bills might sound familiar because they were originally introduced in the 108th Congress. They passed in the House, but died in OSHA's oversight subcommittee in the Senate due to Wyoming Sen. Mike Enzi's lack of support. Why does Rep. Norwood think it will be different this time around? The Republicans have a "new secret weapon" in Sen. John Isakson, R-Ga., who has recently moved into the chairman position, Stone said.
Until the bills reach the Senate floor for debate and a vote, congressmen will be working with their peers in the Senate to fight for or against the legislation. Meanwhile, many in the small business community laud the legislation. "I think that the bill will give OSHA an incentive to think twice," said Sapper.