Department's Directive Reversing No-Enforcement Policy Is Not A Reviewable "Standard"
NATIONAL ROOFING CONTRACTORS ASSN. v. UNITED STATES DEPARTMENT OF LABOR (April 7, 2011)
The United States Department of Labor promulgated a regulation in 1994 that required residential construction workers to use guard rails or other fall arrest systems when they were working at certain heights. Because the Department received many comments during the rulemaking period asserting that the requirement could actually impair safety, it included an exception whereby an employer could demonstrate that compliance would create a greater hazard and be relieved from the requirement. The regulation did not satisfy either the construction industry or employee groups. In 1999, the Department issued an advance notice of proposed rulemaking seeking comments on whether the regulation should be amended. At the same time, it issued a directive that, in effect, advised its staff not to enforce the regulation if an employer used slide guards or other named methods -- methods that were not in compliance with the regulation. In 2010, the Department closed the rulemaking without changing the regulation, rescinded its 1999 Directive, and issued a new directive (the "2010 Directive") stating that the 1994 regulation will be enforced as written. The National Roofing Contractors Association, along with others, filed a petition to set aside the 2010 Directive.
In their opinion, Chief Judge Easterbrook and Judges Coffey and Rovner dismissed the petition. The Court noted that it has jurisdiction to review an "occupational safety and health standard" issued by the Department. The Department contends that the 2010 directive is not such a standard and not subject to review. The Court agreed. A reviewable standard is a standard which requires "the adoption or use of one or more practices, means, methods, operations, or processes" to provide a safe place of employment. The 1994 regulation does require certain practices or processes and is a standard subject to review. But no one timely challenged the 1994 regulation. Neither the 1999 nor the 2010 Directives changed the regulation's requirements. The 1999 Directive simply announced the parameters of prosecutorial discretion – and the 2010 Directive announced the termination of that discretion. The fact that employers must now meet a standard that they have not had to meet since 1999 does not make it a reviewable standard. The Court also rejected the petitioners' argument that the 2010 Directive was a "standard" because it actually modified the 1994 regulation. The Court found no language in the directive that did that.
Michael Rigney practices in the law offices of GVC Ltd. in Chicago. In this blog, he reports on select