Puzzling Evidence From a Troubled Time: Rethinking State Promotion of Safe Work During the Bush Administration
24 Pages Posted: 15 Feb 2010 Last revised: 16 Feb 2010
Date Written: February 14, 2010
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.
Keywords: occupational safety and health, OSHA, NIOSH, regulatory capture, deregulation, workplace safety, new governance
JEL Classification: K10, K23, K32
Suggested Citation: Suggested Citation