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House lawmakers raised pointed questions concerning the Office of Federal Contract Compliance Programs (OFCCP), Occupational Safety and Health Administration (OSHA), and the Wage and Hour Division during an appropriations subcommittee hearing on the Department of Labor’s FY 2015 budget request. Labor Secretary Thomas Perez responded to numerous inquiries as the sole witness during the exchange. A similar hearing was conducted last week by the House Committee on Education and the Workforce, during which many of the same issues were highlighted. The tone of Wednesday’s appropriations hearing, however, was markedly more contentious.
Rep. Steve Womack (R-AR) opened the hearing by calling the workplace’s regulatory environment “a contributing factor” to the “anemic” economic recovery. He said that employers lack certainty in the current regulatory climate, and that “excessive” regulatory enforcement does not help the situation.
Much of Womack’s criticism was levied at the OFCCP. According to him, there are issues with the agency’s lack of transparency, organizational direction, and inefficient process. With respect to transparency, Womack said the OFCCP does not share the rules and metrics it uses in auditing contractors, and therefore cannot show how it arrived at a particular conclusion. He claimed also that regions and district offices do not appear to have a mechanism for sharing their rules and metrics. As a result, employers with operations in several jurisdictions face different processes based on the regional offices involved. Another issue Womack took with the OFCCP was that the audits were “inefficient . . . prolonged, confusing, and adversarial.” Many contractors have had to reproduce the same information at different times to different auditors.
Womack also criticized the agency for not providing enough compliance assistance.
In response, Secretary Perez said that he was “very proud” of the OFCCP and the work it has done. Rep. DeLauro (D-CT) agreed, and said she was happy to see an increase in funding requests for the OFCCP to investigate pay discrimination among federal contractors. She expressed an interest in reinstituting the Equal Opportunity Survey. DeLauro was also in favor of an Executive Order that would prohibit government contractors from discriminating against their employees who disclose salary information.
OSHA Walkaround Policy
Perez faced several questions about OSHA’s recent change of policy implemented via a Letter of Interpretation that now permits union agents and community organizers to accompany safety inspectors into non-union worksites. Rep. Martha Roby (R-AL) called this change “pretty extraordinary,” and asked why it was not the result of a promulgated rule subject to notice and comment.
Perez claimed that her premise was incorrect, and that this policy was “not a change.” Roby disagreed, saying that she is hearing “story after story” of union organizers showing up at non-union worksites.
Rep. Andy Harris (R-MD) echoed Roby’s concerns, cited the OSHA code provisions, and asked Perez when it would be “reasonably necessary” for a union representative to be present to ensure a “thorough, physical inspection” of a non-union workplace. Perez reiterated his position that the policy articulated in the Letter of Interpretation represented the agency’s “long-standing policy.”
Perez fielded questions about the proposed crystalline silica rule as well during the hearing. One lawmaker said any rule must be both economically and technically feasible. He said OSHA has estimated that it would cost employers $637 million per year to comply, while business leaders have instead put that figure at $5.4 billion. In addition, the new standard would set a permissible exposure level to 50 parts per million, but that laboratories cannot adequately measure this amount. Therefore, he asked, “how can you possibly enforce a measure based on this?” Perez responded that the agency is “processing all feedback in a methodical way.”
Voluntary Protection Program
In another safety-related vein, Rep. Chuck Fleischmann (R-TN) said that there are 42 Voluntary Protection Program (VPP) employers in his state, yet funding for the program has decreased dramatically. He asked Perez why funding has decreased, and where the money has instead been allocated. Perez answered that he was “a strong supporter” of the program, but that, “regrettably,” there are a number of successful programs, and the DOL’s budget has shrunk. However, “we are certainly maintaining this program,” he noted.
Worker Misclassification, Minimum Wage
Perez responded to several other questions, ranking from independent contractor misclassification to the minimum wage. A webcast of the hearing can be accessed here.