Puzzling Evidence From a Troubled Time: Rethinking State Promotion of Safe Work During the Bush Administration
Thomas Jefferson School of Law
February 14, 2010
Employee Rights and Employment Policy Journal, Vol. 14, No. 2, 2010
Thomas Jefferson School of Law Research Paper No. 1552667
Reviews of how federal agencies functioned during George W. Bush's presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard-setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness.
This Article reviews the disparate performances of OSHA and NIOSH during the Bush administration, on the basis of the ideological orientation of agency leadership, each agency's adherence to its traditional mission, and the administration of the agencies' "soft law" efforts. In so doing, the Article sheds light on the OSH challenges facing employees in the new economy, highlights better ways of protecting workplace safety and health, and identifies sustainable practices worth preserving and strengthening. Review of the divergent records of these sister agencies suggests that when deregulation is ascendant, as during the Bush administration, agencies that lack enforcement powers may be better positioned to obtain substantive results than are their regulatory counterparts.
This Article, presented in January 2010 at a panel on "The Future of OSHA" sponsored by the AALS Section on Labor Relations and Employment Law, is based on a much larger treatment of the issue, entitled "What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy," 55 Wayne L. Rev. (forthcoming 2010), available at http://ssrn.com/abstract=1487963.
Number of Pages in PDF File: 24
Keywords: occupational safety and health, OSHA, NIOSH, regulatory capture, deregulation, workplace safety, new governance
JEL Classification: K10, K23, K32
Date posted: February 15, 2010 ; Last revised: February 16, 2010