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Republican Congressmen Continue Information Demand on OSHA Joint-Employer Standard

By Joseph Dreesen
  • December 6, 2016

Congressional leaders again have pressed the Department of Labor for information on the Occupational Safety and Health Administration’s potential guidance to OSHA investigators on determining if there is a joint-employer relationship between companies.

The DOL’s Solicitor of Labor, in a document leaked in August 2016, had drafted guidance to OSHA inspectors on enforcing a “multiemployer citation standard” that would affect franchisers and their franchisees.

In an October 26, 2016, letter to Labor Secretary Tom Perez, Representatives John Kline (R-Minn.), chairman of the House Education and the Workforce Committee, and Tim Walberg (R-Mich.), chairman of the Workforce Protections Subcommittee, requested additional information about the document.

Kline and Walberg initially requested information in an October 13, 2015, letter, saying, the document had “alarmed employers and other stakeholders.” The letter continued:

Now, without any public notice or warning, the Solicitor’s memorandum would instruct OSHA inspectors to delve into unrelated matters – financial and otherwise – far outside their expertise. Drifting further from the agency’s core mission, inspectors would have to consider “brand standards,” menu and product creation, and the use of specific computer systems. Inspectors would consider these and other questions that move far beyond the “safety control” factors OSHA currently considers before issuing a multiemployer citation.

In their latest demand, the representatives asked the DOL for further details about OSHA’s joint-employer policies. While they have received 1,501 pages in documents from the DOL, the documents had “numerous redactions” that went beyond simply redacting complainant information. In addition, the DOL had indicated it had an additional 3,300 pages of “yet-unproduced responsive documents.”

“To date, more than a year after our initial inquiry, the department has not asserted executive privilege or any other legal reason to deny production of these documents in an unredacted form to the committee,” the lawmakers wrote. If the DOL did not provide the documents in a less redacted form, the representatives said, and also produce additional requested documents, the committee would “be forced to consider a compulsory process to compel production.”

Jackson Lewis attorneys are available to assist employers with understanding the DOL’s multiemployer policies.

©2016 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

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