OSHA Shaming and the Rule of Law.

• Author: Sapper, Arthur G.
• Position: BRIEFLY NOTED

Cass Sunstein, a Harvard law professor and former official in the Obama administration, recently endorsed the Occupational Safety and Health Administration's policy of "regulation by shaming"--castigating employers in news releases. He urged the Trump administration to fully reinstate it after having relaxed (but not fully abandoned) it from the days of the Obama administration. His sole reason was that a recent statistical study of injury rates showed that the policy "worked."

Yet, Sunstein failed to consider two important questions: Is the policy lawful? And is it moral? The answer to both is no. Instead, the policy undermines the rule of law, the foundation of civilized society.

Regulation by shaming / During the Obama administration, OSHA greatly increased the frequency and intensity of a tactic the agency, without much thought, had used for many years: castigating in press releases employers to whom it had issued citations. The press release would recite with embellishment the citation's allegations, putting the employer through a paper perp walk. It would disparage the employer, often using harsh words not found in the citation and featuring derogatory quotations from OSHA officials. One press release accused a company of having "created a culture that values production and profit over workers safety." Another, after announcing the issuance of citations for non-willful, non-serious paperwork violations, accused the employer of "blatant disregard" of regulations; years later, a court dismissed all the charges.

Nearly every OSHA press release uses misleading terminology. For example, many use terms suggestive of criminality, such as "fines" instead of "civil penalties," the term used in the law. Often, they emphasize that violations were alleged to be "serious," a term that in OSHA parlance has a specialized sense so broad as to be nearly meaningless. Nearly all imply that guilt has already been determined. Instead of saying that OSHA was making "allegations," they would speak of "violations" or state that OSHA had made "findings" or had "found" or "determined" something. Similarly, instead of saying that civil penalties had been "proposed" (the term used in the law), they would say that the employer had been "penalized," or "fined," or "ordered to pay" penalties. Only at their end would they dimly allude to the employer's right to contest, and even then in a misleading way: it would say the employer could contest the "findings."

It...