BIDEN NOMINATES LABOR AND INDUSTRY SAFETY LEADERS TO KEY POSITIONS AT THE DEPARTMENT OF LABOR; OSHA AND MSHA PENALTIES INCREASE
January 25, 2021
By: Karl F. Kumli
On Wednesday, January 20, 2021, hours after taking the oath of office, President Joe Biden officially nominated Boston, MA Mayor Marty Walsh (Walsh) to serve as Secretary of Labor in the new Administration. If confirmed, Walsh will be the first union member to serve as Secretary of Labor since the 1970s. After graduating from Boston College, Walsh joined Laborers’ Union Local 223 at age 21. He was eventually elected president of the Local and served in that position until becoming Mayor. In 1997, Walsh was elected to the Massachusetts House of Representatives representing parts of Boston’s Dorchester neighborhood. In 2011, Walsh was appointed to head the Boston Building and Construction Trades Council. Walsh resigned the Council post when he announced his run for mayor in 2013. Walsh was elected Mayor in 2014.
During Walsh’s time in office, both labor and management stated that the city’s Administration has been a partner in facilitating agreements that work for all parties, while putting an emphasis on using unionized contractors wherever possible. The Walsh Administration had issues with this particular priority during the lead up to the “Boston Calling” music festival in the city. Two Administration officials were convicted of conspiracy arising from a plan to withhold the necessary permits for the festival if organizers did not hire unionized contractors. Those convictions were overturned on appeal, and no evidence linking Walsh to the conspiracy was ever offered.
Walsh experienced a defining moment for worker health and safety during his tenure on October 21, 2016, the day that two workers were killed in an upscale Boston neighborhood when the trench they were working in was flooded by a broken fire hydrant supply line and collapsed. The company doing the trench work had failed to meet basic safety standards such as using a trench box, appropriate egress, or even basic personal protective equipment. The owner of the company was ultimately convicted of two counts of manslaughter. Following the incident, Walsh spearheaded a move to enact new municipal ordinances granting the city the right to deny, revoke or suspend a permit for work in Boston based on a company’s safety record and requiring companies to swear and affirm their work safety history. Walsh has also generated local area news for a response to COVID-19 which has focused on worker safety.
Beyond Walsh, the Biden Administration has made a number of appointments with strong union and safety connections to sub-cabinet positions within the Department of Labor (DOL). The Administration moved quickly to appoint people into acting roles within DOL to expedite the Administration’s ability to address workplace safety issues it sees as having been neglected under the previous Administration, including COVID response. Jim Frederick (Frederick) will serve as the acting head for OSHA. Frederick spent 24 years as United Steelworkers’ assistant health and safety director. Along with Frederick, the Administration has appointed, or plans to appoint, a number of veterans from the Obama Administration’s DOL to acting roles. Biden has explicitly called for the Department, and OSHA specifically, to focus on issuing enforceable regulation regarding employer’s efforts to protect workers from COVID-19 exposure at work. This will likely include an emergency temporary standard for COVID precautions, despite the previous Administration successfully arguing that existing regulation was sufficient to allow OSHA and MSHA to manage workplace safety issues arising from COVID-19.
As of January 15, 2021, civil penalties for violations issued by DOL’s health and safety administrations under the Occupational Health and Safety Act (OSH Act) and the Mine Safety and Health Act of 1977 (Mine Act) will increase uniformly by 1.18% rounded to the nearest dollar. These acts and the penalties are administered by the Occupational Safety and Health Administration (OSHA) and the Mine Safety and Health Administration (MSHA) respectively. While this means that the very lowest penalties will not see any increase, significant penalties will increase by hundreds, and in some cases, thousands of dollars. While an increase is intended to keep pace with inflation every year, this increase coincides with significant changes at the DOL which are likely to have an impact on how frequently civil penalties are issued to employers. With the inflation adjustments, the minimum MSHA penalty under Part 100 is $139 and the maximum is $74,775. The maximum penalty for a flagrant violation is $274,175. OSHA’s maximum penalties increased to $13,653 for an other-than-serious or serious violation and posting requirements. The minimum penalty for a willful violation is $9,753 and $136,532 is the maximum. Repeat violations are assessed a maximum of $136,532.
Jackson Kelly’s Workplace Safety and Health and Employment Practice Groups keep close track of new developments to help clients adapt to an ever-changing regulatory environment during changing Administrations and throughout the ongoing pandemic.