By Brent I. Clark, Patrick D. Joyce, Adam R. Young, A. Scott Hecker, Daniel R. Birnbaum, and Melissa A. Ortega
Seyfarth Synopsis: This week we are attending the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting in San Diego, California. The meeting includes representatives from the U.S. Department of Labor, including the Occupational Safety and Health Review Commission, the Mine Safety and Health Review Commission, Administrative Law Judges, and the Solicitor’s Office, as well as management, labor, and safety attorneys and professionals.
The final day of the ABA Workplace and Occupational Safety and Health Law Committee Midwinter Meeting began with a panel of judges and Commissioners from the Occupational Safety and Health Review Commission: the Honorable Cynthia Attwood, the Honorable Amanda Wood Laihow, and the Honorable Covette Rooney. Chief Administrative Law Judge Rooney discussed the Review Commission’s ongoing Administrative Law Judge settlement rates, which continue to hover near 95% for federal OSHA cases. For settlement conferences, the data indicated a shift towards in person meetings. Trials appeared to maintain a 50/50 split between in-person and virtual. Of the hundreds of COVID citations OSHA has issued, Chief Judge Rooney only identified one that has proceeded to hearing. Chief Judge Rooney expressed a preference for in-person hearings as a Judge, but gratitude for the potential for remote hearings where necessary and also explained the changes to the procedural rules and preference for rule compliance.
At the Review Commission level, in Fiscal Year 2022, the Review Commission directed 14 of 24 petitions for discretionary review, and decided 12 cases. The oldest case on the docket has been limited to 21 months, meaning that there are far fewer pending cases that in past years. The Review Commission received its full budget request from Congress, and is seeking to bring in additional employees, including the appointment of a third Commissioner. The Review Commission offered an explanation of when it will permit oral argument, which they were open to in a future with three sitting Commissioners
The second panel was a mock mandatory settlement mediation conference, mediated by the Honorable William Coleman, Administrative Law Judge with the Review Commission. The panel first discussed mandatory settlement proceedings under 29 CFR 2200.120, and Judge Coleman shared his preferences. Administrative Law Judges can exercise their discretion and conduct the proceedings as they prefer, but within the guidelines in the rules. For example, Judge Coleman prefers to hold the proceedings remotely and will regularly do so if the parties agree. Judge Coleman also prefers to have the company representative with final settlement authority in the room during the proceeding.
The panel then went through a mock mediation for a hypothetical where an employer was cited for a willful violation of the machine guarding standard and a serious violation of the powered industrial truck standard with a penalty totaling over $200,000. This qualified the case for mandatory settlement mediation. Judge Coleman prefers to first hold ex parte conversations with the parties before the settlement proceedings officially begin. Judge Coleman then holds a mandatory settlement opening conference and requests written statements from the parties. Judge Coleman then holds a private caucus session with the parties.
The third panel was a discussion on automation, artificial intelligence (“AI”), and privacy. For OSHA, Rachel Graeber, Counsel, Office of the Solicitor presented. The panel discussed ways in which automation may create jobs, assist workers with their tasks, or change performance of the same. The panel also discussed different ways to think about AI from a workplace safety perspective. For example, smart powered industrial trucks may be able to prevent collisions. The panel discussed interplay with the NLRA and automation and how it affects employee labor rights. Employer representatives raised concerns with expectations as to industry consensus standards and whether OSHA had a duty to notify the regulated community regarding the applicability of those consensus standards. Finally, there were issues raised with regard to protections on employee biometric information and protection from medical inquiries under the Americans with Disabilities Act, and how advanced smart technologies may infringe on those rights.
The final panel addressed ethical issues and ethics opinions from state courts, as well as issues relating to attorney discipline, civil liability, and malpractice liability. Model professional conduct rules include prohibitions on harassment and discrimination, which is being rolled out in most states. The panel addressed implicit bias, explicit bias, and ethical considerations in conducting OSHA practice and safety management. Speakers provided suggestions and tools to address implicit bias in management and the legal profession. These implicit biases could be important to understand and improve both internal safety investigations and OSHA inspections. For example, the panel suggested a potential inaccurate conclusion based on bias, on issues like whether Spanish-speaking employee had understood training, or whether a recovering addict was impaired at the time of the accident. The panel stressed neutral evaluations and a consciousness of potential biases in making the determinations.
We look forward to returning to next year’s Midwinter Meeting in early 2024.