Division of Occupational Safety and Health (OSH)

MISSION AND FUNCTION:  The Division of Occupational Safety and Health provides legal services to the Assistant Secretary for Occupational Safety and Health in connection with the development and enforcement of administrative regulations and standards and related legal activities under the Occupational Safety and Health Act of 1970, as amended, and the anti-retaliation provisions of the Surface Transportation Assistance Act of 1982, 49 U.S.C. § 31105. The Division also provides legal services to the Wage-Hour Division in connection with the enforcement of the temporary labor camp standard with respect to most temporary labor camps and of the field sanitation standard under the OSH Act.

The Division represents the Secretary of Labor in administrative hearings, civil trials and appellate litigation arising under the Acts, and reviews potential criminal cases for referral to the Department of Justice for prosecution.  It provides legal services in connection with state grants and state safety and health plans submitted under Section 18(b) of the Act. It also provides legal advice in connection with the progress of the various federal agencies pursuant to section 19 of the Occupational Safety and Health Act and related Executive Order 12196, dealing with federal employees' occupational safety and health matters.

STATUTES: The Division is responsible for the legal work arising out of the Department's administration and enforcement of, and the performance of related legal activities under, the Occupational Safety and Health Act of 1970 (OSH Act) as amended, and the discrimination provisions of section 405 of the Surface Transportation Assistance Act of 1982, 49 U.S.C § 31105.

The Division primarily provides legal services to the Occupational Safety and Health Administration (OSHA) , and represents the Secretary of Labor in administrative hearings, civil trials and appellate litigation arising under the statutes administered by OSHA, as well as reviewing potential criminal cases for referral to the Department of Justice for prosecution.  It provides legal services in connection with state grants and state safety and health plans submitted under Section 18(b) of the Act. It also provides legal advice in connection with the progress of the various federal agencies pursuant to section 19 of the Occupational Safety and Health Act and related Executive Order 12196 dealing with federal employees' occupational safety and health matters.

DESCRIPTION OF DUTIES:  

Standards and Guidance - Attorneys working in this area are responsible for ensuring the legal sufficiency of OSHA's health and safety standards. One attorney, (two if the project is large like the major health standards), is assigned to every OSHA standards project to work as a member of the project team with OSHA safety and health standards staff and economists. This involves working with the team from the drafting of the initial consideration of a rulemaking proceeding, through the Notice of Proposed Rulemaking, to issuance of the final rule, including representing OSHA at informal rulemaking hearings. This involvement is intended to ensure that the newly promulgated standard will be enforceable and that, if and when it is challenged, it will withstand judicial scrutiny. Final OSHA standards may be challenged in the U.S. Courts of Appeals under Section 6(f) of the OSH Act, and if such a challenge occurs, the attorney who worked on its development is usually assigned to work as a resource with the appellate attorney who defends against the challenge. Other duties include providing legal advice to OSHA advisory committees, reviewing guidance documents and reviewing letters of interpretation. Both a Counsel for Health Standards and Counsel for Safety Standards assign work and supervise the staff attorneys and paralegal working in this area.

Regional Litigation and Legal Advice - Attorneys working in this area provide advice and assistance to OSHA and SOL Regional offices on enforcement policies and strategies as well as on matters involving warrants, subpoenas, imminent danger restraining orders, criminal enforcement, and discrimination and whistleblower cases arising out of Section 11(c) of the OSH Act and the whistleblower protection provision of the Surface Transportation Assistance Act. In addition to conducting legal review of OSHA’s compliance assistance and enforcement documents, attorneys provide legal advice on matters including voluntary compliance programs (Voluntary Protection Programs and OSHA partnership and alliance programs); OSHA on-site consultation programs under 29 CFR Part 1908; OSHA state plans; OSHA oversight of federal agency safety programs under 29 CFR Part 1960; recordkeeping and reporting operations; implementation of medical access order requirements under 29 CFR Part 1913; negotiation and drafting of interagency agreements concerning OSHA coverage issues and interagency projects. They also provide legal advice on questions pertaining to OSHA-related legislation and assist OSHA in implementing various government-wide laws and procedures such as the Freedom of Information Act, Federal Advisory Committee Act, Unfunded Mandates Reform Act, Paperwork Reduction Act, and other laws. Two Counsels supervise the staff attorneys in this area.

Egregious Case Litigation - Attorneys working in this area provide hands-on assistance to OSHA and attorneys in SOL's Regional offices when OSHA issues citations under its instance-by-instance policy. This policy, which applies to particularly flagrant violations, can lead to proposed penalties many times the norm, sometimes in excess of $1 million. OSHA uses this policy to deter employers, through the threat of high penalties, from ignoring their requirements under the Act. The high penalties associated with these cases often attract Congressional and media attention, and attorneys working in this area therefore review press releases and congressional testimony. They also handle appeals of egregious cases to the Review Commission and the courts of appeals. Work in this area is assigned by a Supervisory Trial Attorney.

Appellate Litigation - Attorneys working in this area handle appellate litigation in the U.S. Courts of Appeal and the Occupational Safety and Health Review Commission, the independent agency that adjudicates challenges to OSHA's enforcement actions. These cases include appeals from enforcement-related decisions of the Review Commission and its Administrative Law Judges; appeals from OSHA inspection and employee discrimination litigation in the U.S. District Courts; appeals under the whistleblower protection provision of the Surface Transportation Assistance Act; petitions for summary enforcement of Commission decisions; and the defense of OSHA standards that are challenged under Section 6(f) of the Act. The same attorneys handle the wide range of legal issues that may arise when the Courts of Appeal remand OSHA standards for further agency action. Two Counsels supervise the staff attorneys and paralegal in this area.

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