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Monday, December 09, 2019

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A Case Study: How GOP And Trump Deregulators Are Killing Workers

Reprinted with permission from DCReport.

 

Reuters reporters Julia Harte and Peter Eisler have assembled a powerful investigative article on how “the Trump administration’s plan to weaken the beryllium rule offers a case study in the renewed power businesses can wield in the regulatory process.”

OSHA’s standard to protect workers from the disabling and deadly effects of beryllium exposure was issued in the waning days of the Obama administration. Exposure to beryllium dust causes chronic beryllium disease and lung cancer. Symptoms include difficulty breathing/shortness of breath, weakness, fatigue, loss of appetite, weight loss, joint pain, cough and fever. Over time it may lead to disability and death.

OSHA had been working on a new standard to update its seriously outdated beryllium standard for 20 years, and it was an agreement between the main beryllium producer Materion and the United Steelworkers that enabled OSHA to push the new standard over the line before Trump took office. The labor-industry agreement reduced the Permissible Exposure Limit, added “ancillary provisions” requiring exposure monitoring, training, medical surveillance and other provisions, and covered general industry (e.g. manufacturing) worker. OSHA also added protections for construction and maritime workers who are mainly exposed during the process of abrasive blasting using ground coal slag to remove rust and paint from ships and other structures.

The Trump administration’s plan to weaken the beryllium rule offers a case study in the renewed power businesses can wield in the regulatory process.

Exposure to beryllium dust has devastating health effects on exposed workers like Wardell Davis who was an abrasive blaster with a Norfolk, Va., shipbuilding contractor:

Then 24 years old, with no high school diploma, Davis had for years bounced between part-time jobs. The contractor, he says, promised better pay for the grueling labor of blasting the hulls of U.S. Navy ships with coarsely ground coal particles to remove rust and paint. He recalls the fog of dust created as workers fired the crushed coal – a residue from coal-fired power plants – against the ship bottoms from high-powered hoses, moving through the tented blasting area in respirators and protective suits.

A year later, Davis found a better job with a plumbing and heating company. He became a father, but still found time to hit the YMCA most days for a swim, a lifelong passion. Then, in 2011, he began struggling to hold his breath underwater; soon, he couldn’t hold it at all. He was dogged by a persistent cough, sweats and nausea.

In 2014, doctors at Norfolk’s Sentara Hospital found a “black foreign material” in his lungs. Davis successfully filed a disability claim for “pneumoconiosis/silicosis and/or interstitial fibrotic disease caused by exposure to abrasive blasting dust.” Four years and three biopsies later, Davis survives on a single lung.

Unable to work, he lives on disability payments, and has brought suit against abrasives manufacturers and safety equipment providers he alleges failed to protect him. They deny responsibility for his failing health.

“If I ever would have thought that this would have happened to me, I would’ve never ever worked there,” he told Reuters, his words punctuated by coughs. “Ever.”

The Reuters article describes the fierce industry opposition to the part of the standard that covered construction and maritime industries, not because the regulated industries themselves had strong objections (they could use safer alternatives to coal slag), but because the sellers of coal slag feared devastating effects on their sales as shipyards and construction sites moved to safer alternatives for abrasive blasting.

In June 2017, OSHA issued a proposal rolling back protections for construction and maritime workers. As I wrote then:

Today’s proposal keeps the new PEL, but removes the “ancillary provisions” for construction and shipyard workers. The ancillary provisions would have required employers to provide exposure monitoring, regulated areas (and a “competent person” in construction), a written exposure control plan, personal protective equipment (PPE), and work clothing, hygiene areas and practices, housekeeping, medical surveillance, medical removal, and worker training for construction and shipyard workers exposed to beryllium from abrasive blasting using coal slag compounds that contain beryllium.

Without the benefits of the air testing and health monitoring requirements, the exposure limits for beryllium – are meaningless.

As the Reuters article explained, the new proposal ignored the benefits of the rule and significantly weakened protections:

The protections would cost affected industries nearly $12 million a year, or about $1,000 per worker, according to the 2016 cost-benefit assessment. That analysis, a mandated component of the rule-making process, put the savings to society from averted deaths and illnesses at nearly $28 million, yielding a net economic benefit of about $16 million a year.

Without the benefits of the air testing and health monitoring requirements, the exposure limits for beryllium “are meaningless,” said David Michaels, who headed OSHA for seven years under Obama.

“If there’s no air testing or disease surveillance, there’s no way to know how much exposure workers are getting or who may be getting sick,” said Michaels, who now teaches at the George Washington University School of Public Health.

The changes were unprecedented in OSHA’s almost 50-year history. According to Deborah Berkowitz, OSHA’s former chief of staff, now working for the National Employment Law Project, a nonprofit workers rights group, “Never in OSHA’s history has the agency decided to roll back worker protections for a carcinogen.”

And as I explained in the article, OSHA’s “argument ran against decades of OSHA protocol, which held that if significant risk of exposure to a hazardous substance cannot be completely eliminated, “ancillary provisions” are necessary beyond existing protective equipment, said Jordan Barab, former deputy assistant secretary of OSHA under Obama.”

All of the above is fact. But why did OSHA decide to upend these protections? And here we get to the ability of powerful business concerns to reduce badly needed worker protections.

Leading the charge to weaken worker protections was Congressman Bradley Byrne (R-Ala.), chair of the Subcommittee on Workforce Protections until Democrats took over the House of Representatives this month. Byrne had met with two abrasive manufacturers Mobile Abrasives Inc and Harsco Minerals, who were members of an industry group, the Abrasive Blasting Manufacturers Alliance (ABMA). Byrne wrote to the White House Office of Management and Budget, asking them to weaken the worker protections. Much of Byrne’s letter was taken word-for-word from comments submitted by the ABMA’s lobbying firm, Squire Patton Boggs.

The plot thickens further:

A former Former Patton Boggs senior partner Mark Cowan, a lobbyist who served on Trump’s Labor Department transition team, also became involved. On March 7, Cowan, who served as deputy head of OSHA under former President Ronald Reagan, attended a meeting at the Labor Department, where Squire Patton Boggs lobbyists asked agency lawyers about OSHA’s plans for the beryllium rule. Cowan later wrote an essay arguing that, thanks to existing safety rules, the workers “were never threatened by beryllium exposure to begin with.”

On May 15, Harsco employees and Cowan attended another meeting at the White House’s Office of Management and Budget. Seventeen days later, OSHA announced a second delay in the rule’s implementation. And on June 27, OSHA announced its proposal to revoke the safety requirements entirely.

Both Byrne and Robert Wittman (R-Va.), then-chairman of a House subcommittee overseeing Naval programs and infrastructure had received significant campaign contributions from the Shipbuilders Council of America and the Associated Builders & Contractors.

The abrasive blasters and the other industry associations argue that existing protections are sufficient, and no abrasive blaster has ever been diagnosed with beryllium-related disease.

But not so fast, say Harte and Eisler. It turns out that:

No one is officially checking for such illnesses, say dozens of occupational health specialists and worker safety advocates interviewed by Reuters. The symptoms of berylliosis – shortness of breath, a persistent cough, fatigue – are similar to those of some other diseases. As a result, diagnosing the malady requires a specific blood test that just a few laboratories in the country perform, said one of the labs, the National Jewish Health Advanced Diagnostics Laboratories. They cost about $300 per person, the lab says.

The nonprofit Center for Construction Research and Training, a research arm of North America’s Building Trade Unions that has partnered with OSHA to educate construction workers about health hazards, has researched beryllium exposure. In a series of studies, it found airborne beryllium concentrations of more than 40 times the new permissible exposure limit during coal slag abrasive blasting operations. Other studies by groups including the National Institute for Occupational Safety and Health found beryllium-related health problems in various construction trades.

Lee Newman, a beryllium researcher at the University of Colorado, Denver, said he has treated construction trades workers who did demolition work and went on to develop berylliosis. Berylliosis “definitely” afflicts such workers, he said.

“To say otherwise is to ignore the published science on the subject,” Newman said.

So the Trump administration’s war on workers proceeds as they continue to ignore the fact that – in the words of former OSHA head David Michaels—regulations don’t kill jobs; they keep jobs from killing workers.

OSHA has suspended enforcement of ancillary protections for shipyard and construction workers, but the agency has not yet issued its final revised beryllium standard. In order to weaken worker protections, agencies have to summon strong and convincing evidence that the reasoning for the current protections were either wrong, that conditions have changed. Worker advocates believe that OSHA’s arguments in the proposal were weak, but weak evidence hasn’t stopped Trump administration agencies from weakening protections for workers, the environment or consumers before. Following issuance of the weakened standard, labor unions and other worker advocates will undoubtedly sue the administration.

Meanwhile, the time has passed when the Trump administration can get away with ignoring their mandate without answering for their deeds.

U.S. Rep. Bobby Scott (D-Va.), the new chairman of the House Committee on Education and Labor, said in response to Reuters’ questions that the panel will investigate whether OSHA has “valid economic or scientific rationale” to eliminate the beryllium rule’s shipyard and construction provisions. The Virginia Democrat noted that OSHA has routinely included such provisions in other health standards, including a rule on toxic silica dust. By killing those provisions for beryllium, he said, “the Trump administration has created a double standard.”

And as we wrote last week, the White House has approved OSHA’s rollback of the Obama administration’s recordkeeping standard. Because of the government shutdown, we don’t know yet exactly what it says, but with a new Congress, it’s unlikely that OSHA will get away with that without defending itself before Congress.

The battle to protect workers is far from over. In fact, it’s just heating up. Stay tuned.

Featured image: Wardell Davis suffers from a debilitating lung condition. Photo by Reuters/Julia Rendleman 

 

EPA May Approve Deadly Paint Solvent For Workplace Use

Reprinted with permission from DCReport.
By Jordan Barab, Confined Space

 

As Confined Space readers know, the solvent Methylene Chloride has killed dozens of workers and consumers who used the material in enclosed spaces without realizing the extreme danger of the substance. MC is so hazardous that the Obama administration proposed to ban it. As might be expected, however, Trump’s EPA, under former administrator Scott Pruitt withdrew, the ban for further consideration, but after bi-partisan pressure from Congress and from the families of people killed by the solvent, Pruitt had second thoughts and last May committed to finalizing the ban. Meanwhile, numerous retailers, including Lowes, Home Depot, WalMart, Sherwin Williams, Home Hardware and True Value haven’t waited around and decided to stop selling the product as consumer and family groups have been urging.

Happy ending? Not so fast.  Scott Pruitt may be gone, but his spirit still haunts the EPA. On Dec. 18, EPA submitted a final Methylene Chloride rule to OMB for review, published last night on the OMB website. So far, so good.  And if you stop there,  you’re probably pleased.  But the same day, the agency submitted a separate “Pre-rule” announcement to OMB called “Methylene Chloride; Commercial Paint and Coating Removal Training, Certification and Limited Access Program ”

What’s going on here? The good folks at the Environmental Defense Fund have put these two announcements together and deduced that EPA is going to go ahead and ban MC for consumer use (the final rule), but start the entire regulatory process all over again for “commercial use”—which means workers—and instead of considering a ban, they are going to propose some kind of worker training and certification program.

EDF—and the families of Methylene Chloride victims—are not amused: For the families around the country who have lost loved ones to methylene chloride exposure, this is at best a half-step forward in getting these deadly paint strippers off the market. Rather than waiting for EPA to act, most major retailers have already removed or pledged to remove these products from their shelves.  But that doesn’t protect most workers, and now it looks like EPA won’t either.” said Lindsay McCormick, Project Manager at Environmental Defense Fund.

“Instead, EPA will relegate any limits on commercial uses to a separate, nebulous and lengthy process it is only just starting, which will defer for years or even deny protection to those most at-risk: workers,” McCormick added.

And Liz Hitchcock, Director of Safer Chemicals Healthy Families, said in a statement: “While we are pleased that the EPA is following the lead of the eleven retailers who have committed to removing these products from store shelves nationwide, we are extremely disappointed by indications that the measure will not protect thousands of workers whose lives and health are in danger as they come into contact with methylene chloride on the job. EPA should do its job and protect all Americans from the dangers of methylene chloride.”

An EDF factsheet points out that the vast majority of reported deaths have occurred in the work setting (some of which you can read about here and here) and that certification programs are extremely complicated and costly to implement and difficult to enforce.

Although OSHA has a standard to protect workers against methylene chloride (which also causes cancer), workers continue to die and OSHA’s chemical standard-setting process is broken. The Toxic Substances Control Act gives the EPA the ability to address both occupational and consumer uses of methylene chloride, but under Trump, they’re ignoring the responsibility that Congress gave them.

So once again, workers are left in the dust as EPA again bends to the will of the chemical industry that seems to believe that if only workers would pay better attention to their training or read the labels well enough, they wouldn’t have to die.

 

What’s In A Name? House Labor Committee Reborn

Reprinted with permission from DCReport.

 

In one of the first moves of the soon-to-be Democratic Majority in the House of Representatives, Virginia Congressman Bobby Scott has been elected chair of the newly christened House Education and Labor Committee.

Yes, you read that right: (Re)Introducing the House Education and Labor Committee.

The House Education and Workforce Committee is no more.

What’s in a name? A lot. It means that the committee will once again be addressing the needs of working people rather than just their employers.

Now some of you old-timers may be having déjà vu all over again. And for good reason.

In 1995, when the Republicans took over the House of Representatives after decades in the diaspora, they changed the name from the Committee on Education and Labor to the Committee on Education and the Workforce. Then, after Democrats retook the House in 2006, they changed the name back to “Education and Labor.” In 2011, when the Republicans regained the throne, they duly changed it back to “Workforce” yet again.

After the 2007 change back, I cited an article by the late New York Times columnist William Safire who explained that the term “Labor” is so objectionable to the delicate Republicans because it conjures up frightening images of “Big Labor” and dreaded unions who support evil Democrats. Better to go over the labor bosses’ heads to all workers, including those not represented by unions.

If Labor was to be replaced, then with what? Not workers; that word is associated with socialism (International Workers of the World (sic), or “wobblies”) and communism (in its manifesto, “Workers of the World — Unite”). But there was another term, coined in 1931, during what revisionist Republicans considered the unfairly maligned Hoover administration: workforce. Most dictionaries gave it two senses (and make it two words): “all employees collectively, or those doing work in a particular firm or industry.”

Expect the Chamber of Commerce to complain that the name change means that the Committee will once again be doing the bidding of the evil labor bosses.

And what are the evil labor bosses advocating? A fair minimum wage, fair and meaningful immigration reform, affordable health care, a secure retirement and Social Security, workplace fairness, better pay and benefits, an end to sexual harassment in the workplace, safer and healthier workplaces—and respect for all workers.

If that’s what putting the word “labor” back into the committee title symbolizes, I’m all for it.

Featured image: A 1936 campaign pro-labor poster for Franklin D. Roosevelt, running for re-election as president, and Herman H. Lehman, running for re-election as New York governor (Collection of Merrill C. Berman, via artblat.com)

 

Annotated: How Kavanaugh Misled Senate On His Infamous ‘Sea-World’ Opinion

Reprinted with permission from DCReport.

 

Allow me to be blunt: Judge Brett Kavanaugh lied about the SeaWorld case during his Senate confirmation testimony last week and showed very little understanding of the Occupational Safety and Health Act.

That Kavanaugh is a great girls basketball coach in the crime-ridden streets of Bethesda, as underscored at the hearings, probably won’t make much difference in a confirmation vote.

But for those who take the Supreme Court—and workers’ rights—seriously, facts are facts. And facts explored here should be very troubling for Americ

I can’t figure out how the lies in Kavanaugh’s testimony or his legal misunderstanding of the OSHA act would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States.

In case you’re just tuning in, in 2010 SeaWorld trainer Dawn Brancheau died from dismemberment by a killer whale during a live show in front of hundreds of horrified customers, including small children.

OSHA, which had proven SeaWorld was aware the whale that killed Brancheau had been involved in previous trainer fatalities, and that killer whales, in general, were hazardous to trainers, cited SeaWorld and ordered them to use physical barriers or minimum distances to separate trainers from whales. SeaWorld appealed, and both the OSHA Review Commission and the federal Appeals Court found in OSHA’s favor. The only dissent throughout the entire process was Appeals Court Judge Brett Kavanaugh who argued in his 2014 written opinion that OSHA had paternalistically interfered in a worker’s right to risk his or her life in a hazardous workplace, that OSHA had violated its long-standing precedent not to get involved in sports or entertainment, that the agency had no authority to regulate in the sports or entertainment industries and that Congress—and only Congress—could give OSHA that authority.

(You can read my original post about the SeaWorld decision here, and an excellent piece by my former OSHA colleague Deborah Berkowitz here.)

So, let’s fast-forward to last Thursday, when Kavanaugh was questioned about his SeaWorld dissent by Sen. Diane Feinstein (D-Calif.) during his Supreme Court confirmation hearing. You can watch and listen to the exchange beginning at 1:42:16 of Thursday’s hearing here.

Feinstein: “Judge Kavanaugh, you sat on a case where a trainer, Dawn Brancheau, was killed while interacting with a killer whale during a live performance. Following her death, the Occupational Safety and Health Administration found that SeaWorld had violated workforce safety laws. The majority agreed with the agency, that SeaWorld had violated the law. According to what I know, you disagreed. In your dissent, you argued that the agency lacked the authority to regulate employers to protect participants in sporting events or entertainment shows. However, the statute, as enacted, applies to each employer and it defined employer as anyone engaged in business affecting commerce who has employees.

Where in the text of the law does Congress exempt employers of animal trainers?”

Kavanaugh: “The issue, Senator, was precedent. I follow, as a judge, I follow precedent. The precedent of the Labor Department, as I read it, was that the Labor Department under the statute would not regulate what it called the intrinsic qualities of a sports or entertainment show.” [emphasis added]

There are several problems in Kavanaugh’s statement.

There Is No Precedent for OSHA Not Regulating the Entertainment Industry

Just the opposite, in fact. OSHA has cited circuses and Broadway musicals several times due to deaths and injuries of performers. For example:

  • In 2011 OSHA issued three serious citations and a $12,600 fine to 8 Legged Productions LLC following four separate incidents that resulted in injuries to cast members of the musical “Spider-Man Turn Off the Dark.”
  • In June 2013, Nevada OSHA fined Cirque du Soleil $23,035 for five violations after a performer in the show “Ka” at the MGM Grand Hotel and Casino in Las Vegas was killed after falling 94 feet during a show. The wire rope attached to her harness broke because it was scraping against a sharp edge.
  • In November 2014, Federal OSHA cited the Ringling Bros. and Barnum & Bailey Circus after eight performers fell more than 15 feet during the “hair hang act” as they were suspended from a twirling frame by their hair. According to the OSHA investigation, “The hair hang act was advertised as a spectacular and thrilling act to perform and watch. Six performers are hung from their hair from an overhead hexagonal steel framed apparatus.” OSHA determined that a steel carabiner holding the performers was not strong enough to support their weight.
  • OSHA Is currently investigating the death of a Cirque du Soleil performer in Tampa after he fell during an aerial act.

One other thing. Kavanaugh was not only wrong, but he was just making stuff up: SeaWorld didn’t even argue that its whale trainers weren’t covered by OSHA because they were in the entertainment business. It wasn’t part of the case until Kavanaugh raised the issue.

Kavanaugh Lied About What He Wrote In His SeaWorld Dissenting Opinion

Kavanaugh to Feinstein: “The Labor Department in the oral arguments tried to distinguish, for example, the dangers of football from the dangers of the SeaWorld show and I did not, as I explained in the opinion, find that argument persuasive.

But I did make clear two things, Senator. One is … that Congress could make the decision to regulate the intrinsic qualities of sports or entertainment shows, or the Labor Department could change its precedent...“

Actually, Kavanaugh is lying here. He made one of those things very clear in his SeaWorld dissent: that only Congress allows OSHA to regulate sports or entertainment and only by changing the law. The Department of Labor, he wrote in his dissent, did not have the authority to cover sports or entertainment because Congress hadn’t intended these kinds of occupations to be covered when the Occupational Safety and Health Act (OSHA act) was passed. He wrote in his 2014 dissent:

In the real world, it is simply not plausible to assert that Congress, when passing the Occupational Safety and Health Act, silently intended to authorize the Department of Labor to eliminate familiar sports and entertainment practices, such as punt returns in the NFL, speeding in NASCAR, or the whale show at SeaWorld.

To the extent sports or entertainment activities raise concerns about the risk of injury to the participants, several extant legal bodies possess significant authority to clamp down on unreasonable dangers: Congress, state legislatures, state regulators, courts applying state tort law. I take no position here on whether SeaWorld—or for that matter the NFL or NASCAR—should be subject to more stringent government regulation or liability, or otherwise should voluntarily make its activities safer. That policy question is not before us. My legal disagreement with the majority opinion boils down to one basic question: Who decides? Under current law, it is not the Department of Labor. [emphasis added.]

So can the Department of Labor change OSHA’s (non-existent) precedent, or can only Congress change OSHA’s (non-existent) precedent? It apparently depends on which Brett Kavanaugh you’re talking to and which day you’re talking to him.

Nor does Kavanaugh explain exactly how OSHA would “change its precedent.” Obviously, he didn’t consider issuance of a citation against SeaWorld to be adequate. Maybe this would work:

The OSHA Act Covers All Employees—Including Animal Trainers

Kavanaugh never really answers Feinstein’s direct question about where the OSHA act says that employers of animal trainers are not covered by the law. Because the OSHA act clearly states that all employees are covered by OSHA (with the exception of public employees.)

To put it bluntly, Kavanaugh’s statement in his testimony and in his SeaWorld dissent are not only wrong but are also sheer hypocrisy. He claims to be a “textualist,” that is a jurist who gives primacy to the ordinary meanings of the words of a statute, and steers away from other sources of meaning, like legislative history. So it is unclear how textualism is consistent with his speculation on what Congress plausibly intended—but never actually said—50 years ago when the OSHA act was passed. As Wharton professor and former OSHA official Adam Finkel stated:

” ‘Textualist’ Brett Kavanaugh made up out of nowhere language he personally wished Congress had written, but never did.”

Kavanaugh Misuses the Word ‘Intrinsic’

Kavanaugh states that OSHA is not allowed to regulate the intrinsic qualities of a sport or entertainment show.” But “intrinsic,” according to Merriam-Webster, is defined as “belonging to the essential nature or constitution of a thing.”

Now, one might make a convincing argument that tackling is “intrinsic” or “essential” to professional football, although there is still nothing in the law prohibiting OSHA from regulating the safety of football even if the agency has chosen not to do so.

But is close personal contact between trainers and the killer whales during performances “intrinsic” or “essential” to SeaWorld’s killer whale shows?

The answer is no. The main attraction of whale shows is watching the whales jump out of the water, do clever tricks and splash the spectators. Sure, the audience may also enjoy watching the trainers hug and cuddle the whales, but the show goes on even without the close, personal contact, as SeaWorld itself admits by the fact that it is continuing to allow their customers to “journey into the world of majestic killer whales” without the close contact between the whales and the trainers. People still seem to enjoy the show even without the opportunity to watch a trainer get killed during the performance.

Kavanaugh Is Wrong: OSHA Is Permitted to Regulate in ‘New’ Areas that Congress Didn’t Specifically Mention 50 Years Ago

The possibility OSHA might be confronted by “new” hazards that Congress did not foresee in 1970, or hazards for which there was no specific OSHA standard, was clear to the founding fathers of the OSHA act when the law was passed almost 50 years ago.

To ensure that OSHA would be able to require employers to protect workers from these “new” hazards, the OSHA act contains the “General Duty Clause”(Section 5(a)(1)), which enables OSHA to cite employers for exposing employees to hazards for which there are no standards as long as the hazard was “recognized” (by the employer or by the industry) and where there was a “feasible” means of preventing or reducing the hazard. SeaWorld was cited under OSHA’s General Duty Clause because the hazard of killer whales was well recognized by SeaWorld (and the industry), and because it was perfectly feasible to carry on with whale shows without exposing the trainers to death and dismemberment.

Furthermore, “new” hazards have also never been a legal problem for OSHA before. Many serious hazards facing workers today were not envisioned when the OSHA act was passed in 1970, but OSHA still regulates those hazards. Workplace violence and ergonomics are two examples of “new” hazards that are regularly cited under OSHA’s General Duty Clause.

The legislators that wrote the OSHA act most likely never predicted that infectious diseases might be an area that OSHA would someday regulate. And indeed, OSHA’s Bloodborne Pathogens standard, issued in 1990, was initially opposed because infectious diseases were an area that OSHA had never regulated before the scourges of HIV/AIDS and hepatitis B started killing healthcare workers in large numbers. Yet today, thanks to OSHA’s ability to regulate in areas that Congress never foresaw, thousands of healthcare workers owe their lives to OSHA’s Bloodborne Pathogens standard.

Kavanaugh Is Wrong: Whale Training Is Not a Sport

Killer whale trainers are not athletes; they’re workers in the entertainment industry. And killer whale shows are not sports. There is no fight between whale and human (or there shouldn’t be). No one is trying to win. No one keeps score. No one is supposed to get hurt. No one is supposed to die.

Kavanaugh Is Wrong: Tort Law Is Not a Substitute for Laws that Prevent Workers from Getting Hurt on the Job

The use of lawsuits as the only recourse for workers in unsafe jobs went out of fashion (and law) 100 years ago. One would think that Kavanaugh, as a distinguished jurist being considered for the Supreme Court, would be aware that ever since the creation of workers compensation laws in the early part of the 20th century, employees have generally not been allowed to sue their employers after being hurt on the job. And the whole point of the OSHA act is to make the workplace safe before workers get hurt, not after it’s too late.

So the following statement from Kavanaugh was confusing, to say the least:

Kavanaugh to Feinstein: “…and I made clear that of course, state tort law, as the NFL has experienced with the concussion issue, state tort law always exists as a way to ensure or help ensure safety in the SeaWorld show.”

Huh?

Conclusion

In his SeaWorld dissent, Kavanaugh asked:

When should we as a society paternalistically decide that the participants in these sports and entertainment activities must be protected from themselves—that the risk of significant physical injury is simply too great even for eager and willing participants?

And most importantly for this case, who decides that the risk to participants is too high?

When? In 1970, with the passage of the Occupational Safety and Health Act that gave employers the legal responsibility to provide a safe workplace for their employees.

Who decides? Congress and then President Richard Nixon decided, almost 50 years ago with the passage of the OSHA act and the creation of the Occupational Safety and Health Administration.

In that sentence, Kavanaugh undermines the OSHA act’s clear guarantee of a safe workplace to every worker, and the employer’s responsibility to provide that safe workplace.

Now I’m no lawyer, nor am I a professor of law, but I can’t figure out how the lies in Kavanaugh’s testimony or his legal misunderstanding of the OSHA act would get a passing grade in the first year of law school, much less a lifetime seat on the Supreme Court of the United States. He has made clear that he does not believe in the mission of OSHA, the goals of the Occupational Safety and Health Act or what Congress actually said in the law, despite his claim to be a textualist.

He has shown himself, under sworn testimony, to be willing to make up facts and legal theories out of thin air to support his corporate-first ideology.

He is not fit for the Supreme Court.

Steven Pearlstein’s recent description in The Washington Post of Kavanaugh’s opinion about an environmental law could have been written about the SeaWorld case:

What you get is 60 pages of legal sophistry, procedural hair-splitting and scientific conjecture. You find a judge without a shred of technical training formulating his own policy solution to an incredibly complex problem and substituting it for the solution proposed by experienced experts. You find an appeals court judge so dismissive of the most fundamental rules of judicial restraint that he dares to throw out regulations on the basis of concerns never raised during the rule-making process or in the initial court appeal.

As Debbie Berkowitz wrote in her NELP post, “If you work in a dangerous job, you should be worried about Brett Kavanaugh.”

Very worried.