The Occupational Safety and Health Administration (OSHA) has announced that it filed a lawsuit in Oklahoma City against Modern Oil Company, the operator of 30 Kwick Stop convenience stores.  The lawsuit alleges that after OSHA investigated a workplace safety complaint at one of its stores in Shawnee, Oklahoma, management grilled the three employees of that

The Occupational Safety and Health Administration (OSHA) has announced that it will hold a live web chat tomorrow from 3:00 to 4:00 p.m. (Eastern) to discuss OSHA’s new safety rules for cranes and derricks used in construction. Interested parties can access the web chat by visiting http://www.dol.gov/dol/chat.htm tomorrow at 3:00 p.m. Cranes and derricks have been a perennial danger on construction sites, and improved safety standards will be a welcome development. The new standards will be even more effective if Congress passes the Protecting America’s Workers Act (PAWA), HR 2067, so that workers will own their own retaliation claims if they insist on following the new rule and suffer retaliation as a result. The full OSHA statement announcing the web chat follows in the continuation of this entry.


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Public interest groups have scheduled a town hall meeting to discuss legislation designed to protect miners and other workers from injury and disease. It is scheduled for next Tuesday, July 27, 2010, at Unitarian Universalist Church of Arlington, 4444 Arlington Boulevard, Arlington, Virginia, from 7:00 pm to 8:30 pm. A flyer is available here. Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, is scheduled to speak. The purpose of the town hall meeting is to build support for H.R. 5663, the Robert C. Byrd Miner Safety and Health Act. This legislation would expand and improve workplace safety laws by strengthening both the Mine Safety and Health Act (MSHA) and the Occupational Safety and Health Act (OSHA). We posted a previous notice about this bill here.

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Patricia Smith (pictured at the podium) is now finally confirmed as the Solicitor of Labor, the official legal counsel for the U.S. Department of Labor. Solicitor of Labor Patricia SmithOn June 25, 2010, she spoke to the annual convention of the National Employment Lawyers Association (NELA). "Labor rights are civil rights," Smith told us, making clear that she intends

The Department of Labor’s Administrative Review Board (ARB) held a public meeting today to hear from stakeholders about the how it might craft rules of practice. ARB members 2010-06-21Last Friday, the ARB released a preliminary draft of its proposed Rules of Practice and Procedure. All three ARB members attended to hear comments. Pictured here are Vice-Chair E. Cooper Brown, Chair Paul M. Igasaki, and Member Wayne C. Beyer. The National Whistleblowers Center (NWC) sent Executive Director Stephen M. Kohn, General Counsel David Colapinto, and myself, Legal Director Richard Renner. Three labor union attorneys attended. Five other complainant-side attorneys and four employer-side attorneys also attended. ARB Chair Igasaki explained that his experience at the Equal Employment Opportunity Commission (EEOC) taught him the wisdom of hearing from stakeholders before adopting rules. He and Vice-Chair Brown explained that the ARB wants to work down its backlog.  Initially, the ARB hopes to decide this year all its cases that have been pending over two years. The ARB plans to announce the appointment of two new members soon, and plans to hire more staff attorneys. The ARB continues to invite written comments from stakeholders and members of the public, and asks that they be submitted by June 30, 2010. “The more input we have, the better off we are,” Mr. Igasaki said.

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I can hardly believe I am writing this. The Department of Labor’s Administrative Review Board (ARB) has just issued a decision applying Aschroft v. Iqbal to whistleblower complaints filed with the Occupational Safety and Health Administration (OSHA). As it happened to one of my clients, Douglas Evans, it has fallen to me to file a Motion for Reconsideration with the ARB. I filed that motion on May 10, 2010. The 2-1 decision also holds that the federal government is immune from whistleblower complaints under the Energy Reorganization Act (ERA, governing nuclear safety), and the Toxic Substances Control Act (TSCA). It acknowledges that the federal government has waived sovereign immunity under CAA, SWDA and CERCLA, the Clear Air, Solid Waste Disposal and Superfund Acts.

I am most distressed, though, with the application of Iqbal. In Aschroft v. Iqbal, the Supreme Court was faced with a claim that senior officials of the Bush Administration had authorized racial profiling against Americans of Middle Eastern descent in the wake of the 9/11 terrorist attacks. Stretching the requirements of pleading a constitutional violation to new limits, the 5-4 majority of the Supreme Court allowed a lower judge to dismiss the complaint on grounds that it was not “plausible” that former Attorney General John Ashcroft purposefully discriminated on the basis of national origin. The Supreme Court relied on prior cases holding that when plaintiffs allege a violation of the First or Fifth Amendments to the Constitution, then the complaint must allege sufficient facts from which the court can infer that the named individuals acted purposefully to violation those amendments. Still, the Supreme Court was working from Rule 8(a)(2) of the Federal Rules of Civil Procedure (FRCP) which normally require only a “short and plain statement of the claim.”


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