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Regulation Must be Based on Sound Science and Common Sense

December 29, 2000
Related Topics: Miscellaneous Legal Issues, Featured Article
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Duringmy tenure as chairman of the House Education and the Workforce Committee, one ofmy responsibilities was to consider carefully the kinds of workplace regulationsissued by the Clinton-Gore Administration. Unfortunately, the administrationproposed plenty of risky and bureaucratic regulations, some of them based onunproven science and with the potential to cost businesses billions of dollars. 

   Ourcommittee had several opportunities in the 106th Congress to addressthe administration’s efforts at regulating the workplace. 

First came telecommuting
    Forexample, the Occupational Safety and Health Administration (OSHA) made aterrible mistake when it announced in Nov. 1999 that companies are accountablefor federal safety and health violations that occur when employees work at home.OSHA’s advisory letter was an Industrial Age approach to handling the modernInformation Age workforce.

Anational discussion can only go so far if the threat of regulation still exists.
Whena front-page story appeared in The Washington Post about the issue, thenationwide reaction of the business community, their workers, and many inCongress was swift and resolute. OSHA’s action would have stopped one of themost innovative and flexible ways for employees to balance work schedules withtheir demanding family and personal responsibilities. 

   Today,almost 19.6 million people work at home, according to the International TeleworkAssociation and Council. The benefits of “telecommuting” are clear. Employees get flexible work schedules to balance all their obligations;city highways are less congested during rush hour; and the environment benefitsbecause less people pollute the air with their cars. Companies benefit fromimproved employee retention and recruitment and a less hassled and moreproductive workforce. 

   Eventhough Labor Secretary Alexis Herman withdrew the advisory letter just a dayafter the Post published its story -- and OSHA announced it would try toformulate a new policy -- questions remained about OSHA’s role in enforcingfederal regulations in the new age of telecommuting. There remain two majorconcerns. 

   First,many business owners oppose being required to inspect workers’ homes forsafety and health violations, which leads to issues like invasion of privacy andcost considerations. In addition, many telecommuting employees fear that OSHAcould force them to change everything in their houses from the type of furniturethey own to where their children can play during the “work day.”    

   SecretaryHerman and OSHA have called for a national discussion on issues surroundingtelecommuting, and our committee met that call with a congressional hearing andoversight. However, a national discussion can only go so far if the threat ofregulation still exists. OSHA must clearly state that it will not imposeregulations on home work sites while Congress works with OSHA and the LaborDepartment to formulate an acceptable policy. 

   CongressionalRepublicans were successful in 2000 in passing legislation to protect employeestock options for non-managerial and non-professional employees. The LaborDepartment issued an advisory letter early in the year stating that companiesgranting stock options must include the value of the options in hourlyworkers’ base pay. 

   Companiesoffer stock options as a way to reward the productivity of rank-and-fileemployees and provide them with an incentive to work harder. The department’s attempt to make stock options a part of employees’base pay changes the compensation due to them under the Fair Labor Standards Actand creates an administrative nightmare of increased cost, paperwork, andliability. 

   Therewere several questions about how the Labor Department arrived at this decision,and it was difficult to understand why the department would not want toencourage employers to share their prosperity with rank-and-file workers. ManyRepublicans, however, understood the importance of stock options and worked tocraft and pass legislation to protect them. I am pleased that a bill to do justthat, authored by committee member Rep. Cass Ballenger (R-NC), was signed byPresident Clinton in May (P.L. 106-202). 

Ergonomics debacle
    Afederal ergonomics standard was another issue of concern for our committee andan issue that will demand the attention of the Bush-Cheney Administration andthe 107th Congress.  Despiteour best efforts to delay a final standard until more study on the issue couldbe done, the Clinton-Gore Administration issued the rule on Nov. 14. I believe the rule is based on shaky science and would cost companiesbillions of dollars in new mandates.

Ergonomicscosts for the trucking industry alone would be more than $6 billion a year.
    Ergonomicsis the science of designing the workplace for the worker to reduce injury andstress on the body. “Ergonomics” is often used to advertise chairs,keyboards, and other special equipment that have been engineered to help makethe worker more comfortable. Beyond this popular usage, there is littleagreement as to what causes repetitive stress related muscular-skeletalinjuries, or exactly how they should be prevented or treated. 

   Becauseof this uncertainty, Congress appropriated almost $1 million in 1998 for anunbiased study on ergonomics by the National Academy of Sciences (NAS). InAugust 1999, the House voted to delay the implementation of OSHA’s ergonomicsrule until the NAS study was completed. I led these efforts because of the vastmedical uncertainty about exactly what causes repetitive stress injuries andbecause of my concern that before finalizing regulations, we should see theresults of the already-paid-for comprehensive NAS study. The study will befinished early next year. 

   Meanwhile,the cost of implementing the regulation could be staggering. OSHA’s own estimate places the cost to employers at $3.5 billion ayear, but many believe the agency has underestimated the costs. The NationalEconomic Research Associates found that actual costs for the trucking industryalone would be more than $6 billion a year. Wholesaler and foodservicedistributors could be hit with costs of up to $26 billion in the first year ofenforcing an ergonomics rule and $6 billion annually thereafter, according toFood Distributors International. 

   WhileI believe that worker safety and productivity should be a top priority, theBush-Cheney Administration and the next Congress must pledge to work together tobalance safety issues with sound science and common sense, as well as reflect onthe criticisms of the regulatory frenzy of the past eight years.


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