DOL guidance memo instructs OSHA to halt news releases about employer penalties

Washington — The Department of Labor is advising OSHA and other enforcement agencies not to publish press releases – “absent extraordinary circumstances” – about fines and penalties levied against employers for worker safety and health violations “before achieving a successful outcome,” according to a DOL guidance memo obtained by The New York Times.

The new policy is in contrast to OSHA’s long-standing practice of publishing press releases, which the agency has claimed “serve important purposes” such as raising public and worker awareness of offending employers or troubled industries, as well as deterring future violations. The Sept. 24 memo – shared online Oct. 23 by the newspaper – was issued by Deputy Secretary of Labor Patrick Pizzella and sent to acting OSHA administrator Loren Sweatt and five other agency leaders.

Pizzella points out that press releases “have the potential to create an online record that is prominent in search results regarding a particular company or labor union.” He adds that this can be particularly troublesome if, for example, DOL issues a release when an agency proceeding is first initiated but “is ultimately found to be unjustified in its enforcement action.”

Pizzella identifies four “appropriate” points in time when a press release should be issued:

• After a court or other tribunal has rendered judgment or issued a decision
• After a conviction or plea agreement has been obtained
• After an agency has entered a settlement or conciliation agreement with the named party regarding remedies or the payment of a penalty
• After the time for contesting a finding (such as a citation) has elapsed and the party hasn’t contested or requested to negotiate

Research by Duke University labor economist Matthew Johnson published in the June edition of the American Economic Review concluded that the impact of one OSHA press release about fines levied against a company can have the same impact as 210 agency inspections when it comes to future compliance by the offending employer and those nearby in the same industry.

Along with the negative impact to the employer who was fined, Johnson’s analysis of a 2009 policy under former OSHA Director David Michaels to publish and distribute press releases for fines of at least $40,000 showed a 30% decrease in violations in the same industry as the offending company. The policy, Johnson says, was halted in 2017 by the Trump administration.

“By reading about an OSHA press release, some may take it as a reminder to do the right thing,” Michaels, who headed the agency from 2009 to 2017 under President Barack Obama, told Safety+Health earlier this year. “Some may be concerned and might want to avoid an OSHA inspection. Whatever the motive, the outcome is the same.”