The Future of the Occupational Safety and Health Review Commission is Uncertain

Recently, I wrote about the need to reinvent OSHA. Last week, I attended the American Bar Association Workplace and Occupational Safety and Health Committee annual meeting, and my thoughts turned to the future of the U.S. Occupational Safety and Health Review Commission (OSHRC), where I previously served as Chair during President Trump’s first term. At the ABA meeting, I joined a panel to discuss the presidential transition impact on agencies, such as the Department of Labor and the Occupational Safety and Health Review Commission. The independent agency, OSHRC, has been through about a dozen transitions, but this one is different.

ABA Panel: Lessons from Past Presidential Transitions

Review Commission May Soon Operate Without Even a Single Commissioner

OSHRC is an independent agency created by Congress in the Occupational Safety and Health Act of 1970. The agency’s primary function is to decide contests of citations or penalties that the Occupational Safety and Health Administration (OSHA) issues to employers following safety and health inspections of American workplaces. The agency is intended to provide OSHA, employers, and employees and/or their representative with a fair and expeditious resolution of these contested cases. OSHRC is a completely independent agency that is not part of the Department of Labor or OSHA. In short, policy and regulatory actions lie with OSHA; adjudicative functions with OSHRC.

The Review Commission is likely to soon be without a single commissioner. Chair Cindy Attwood’s term expires April 27. She is the sole remaining commissioner, and no nominations for the Review Commission have been announced; essentially ensuring that there be no commissioner at the Review Commissioner as of April 28. Without three members, or even two (which is the number required for a quorum); or even one (which is the number required to direct a case for review following the filing of a Petition for Discretionary Review by one of the parties) action on important issues may be postponed and disposition of some pending cases will be delayed.

Operating without three commissioners at the Review Commission is not novel. Over the past 5 years, the Commission has operated with fewer than three Commissioners over 75 percent of the time and operated with only one Commissioner 40 percent of the time. The Commission-review level operated with only one Commissioner for all of FY 2024. However, the last time there was no commissioner at the Review Commission was during an approximately two-month period from November 22, 1989—March 1, 1990, following the conclusion of Commissioner Linda Arey’s termination before the confirmation of Chair Ed Foulke.

Even without a single commissioner at the Review Commission, parties seeking review of an OSHRC administrative law judge’s decision will need to file a Petition for Discretionary Review (within 20 days of docketing of the administrative law judge’s report). Commission Rule of Procedure 2200.91 provides:

(a) Review discretionary.  Review by the Commission is not a right.  A Commissioner may, as a matter of discretion, direct review on the Commissioner’s own motion or on the petition of a party.

(b) Petitions for discretionary review. A party adversely affected or aggrieved by the decision of the Judge may seek review by the Commission by filing a petition for discretionary review with the Executive Secretary at any time following the service of the Judge’s decision on the parties but no later than 20 days after the date of docketing of the Judge’s report.

...

(f) Prerequisite to judicial review; effect of filing. A petition for review under this section is, under 5 U.S.C. 704, a prerequisite to the seeking of judicial review of the final agency action. The effect of filing a petition for review is to stay the decision of the Judge.

… (emphasis added).

Also, in Commission Rule 2200.92, it states

          ….

(b) Review on a Commissioner’s motion; issues on review. At any time within 30 days after the docketing date of the Judge’s report, a Commissioner may, on the Commissioner’s own motion, direct that a Judge’s decision be reviewed.  

… (emphasis added).

When the case is not directed for review—which it cannot be without a single commissioner voting to direct the case for review—an aggrieved party may obtain review of a Commission order and ask that it be modified or set aside by filing a written petition, within sixty days following the issuance of a Commission order, in any United States court of appeals for the circuit in which the violation is alleged to have occurred or where the employer has its principal office, or in the Court of Appeals for the District of Columbia Circuit.

So, while cases can proceed to federal court without Review Commission review of an ALJ’s decision, the parties and federal judges lose the opportunity to hear the views of the members of the Review Commission who have specialized knowledge and experience with enforcement of the Occupational Safety and Health Act (OSH Act). This expertise allows for informed decision-making and ensures that complex issues are adjudicated by individuals familiar with the nuances of the subject matter.

When Should We Expect a Commissioner to be Nominated for the Review Commission?

There are a number of factors creating a perfect storm of uncertainties for independent administrative agencies, in general, and the Review Commission, specifically. First, at this point, it is unclear if the current Administration takes the route of letting this independent agency wither on the vine by failing to nominate commissioners. While nominations for the Department of Labor have been made and acted upon since the November election, including this week’s confirmations of Secretary of Labor Lori Chavez-DeRemer and Keith Sonderling for Deputy Secretary of Labor, it is not clear if nominating three commissioners to return the Review Commission to a full commission, upon their Senate confirmation, is a priority to the current administration. The recent attacks upon independent federal agencies, along with the difficult history of OSHRC in maintaining a full three-member commission, lead me to wonder if President Trump intends to let the Review Commission wither on the vine. What if he doesn’t see value in this small, federal agency that frequently lacks a quorum? Does the Administration conclude that it makes more sense to let parties proceed to federal court following the administrative law judge’s decision? Without an operating three-member commission, does this lead to further withering through budget cuts that impact the agency, including its Office of the General Counsel and staff?

Will a Recent Lawsuit Impact the Operations of the Review Commission?

The continued independence of independent, federal agencies, and even their ability to function, have been under attack. The Trump Administration’s early actions, including a series of Executive Orders targeting independent regulatory agencies and recent litigation stances taken by the Department of Justice, are reigniting longstanding constitutional debates over executive power and the autonomy of independent agencies. Many of these actions have already faced constitutional challenges in court. However, if upheld, they could significantly impact the operation of independent regulatory agencies, including OSHRC.

These challenges come on top of last year’s Supreme Court ruling in a decision, SEC v. Jarkesy, that stripped the Securities and Exchange Commission (SEC) of the ability to use in-house tribunals presided over by ALJs to obtain civil penalties against individuals accused of securities fraud. Regulated parties have relied upon Jarkesy in challenging other independent agencies, such as the National Labor Relations Board.

The Review Commission has similarly come under attack. A federal lawsuit filed in New Jersey, Kenric Steel, LLC v. United States Department of Labor, Occupational Safety and Health Administration et. al, Case Number 1:24-cv-09221, US Dist. Court NJ (Sept. 17, 2024), claims that OSHRC members are unconstitutionally shielded from removal due to the staggered, six-year terms, and OSHRC’s administrative law judges are unconstitutionally appointed because they are named by the Review Commission chairperson instead of the U.S. President.  

The future of the Review Commission is unclear. I continue to believe in the value of the Review Commission—and its expertise that allows for informed decision-making and ensures that complex issues are adjudicated by individuals familiar with the nuances of the subject matter—but I would agree that changes need to occur to restore OSHRC to being able to deliver on its mission of providing “fair and expeditious resolution” of contested OSHA citations.