No lawyer likes to lose a case, especially after trial but few are offered an opportunity for a second chance to snatch that defeat from the jaws of victory. Eugene Scalia, Esq., the President’s nominee for Secretary of Labor, may be in a position to have that last laugh. Some are aware that the nominee is the son of the late Supreme Court Justice Antonin Scalia, but fewer know about his career as a major white-shoe counselor for business and chamber of commerce interests in opposing labor legislation and regulations. In this respect, Scalia is the pluperfect representation of administration policies and his confirmation process, hopefully, will explore these issues.
In the mid-1990s, Labor’s Occupational Safety and Health Administration (OSHA, created in 1971) formulated regulations to create ergonomic standards to address repetitive motion injuries in the workplace. Not only were such occupational factors disabling to workers but, more importantly, evidence from years of data collected along with medical research indicated that such injuries constituted one-third of all injuries and lost work days. A safety regulation in this area would simultaneously reduce workplace injuries and increase productivity.
Not so, countered the National Coalition on Ergonomics, a well-funded corporate group founded by Scalia to lobby against the OSHA regulation. The lobby group adopted a line of attack that can only be described as primitive:
–the regulation would make the US noncompetitive and cause lost jobs; —-such regulation must be accepted only voluntarily by employers; and –employers cannot expect workers to expend any material physical effort.
One can hear the guffaws of the workers who actually perform in work environments that require ungainly posture as well as repetitive compression of joints and limbs, often in the use of tools. What’s the necessity of a regulation based upon decades of medical findings and existential experience when an intellectual, legal analysis can be made by folks who likely have never performed manual work?
There are no coincidences within six degrees of separation. Immediately prior to his lobbying activity, Scalia was a special assistant 1992–93 to US Attorney General William Barr. In 2000, his firm represented George W. Bush in Bush v. Gore before the very Supreme Court upon which his father sat as a Justice.
In a career studded with pro-business victories, especially in matters involving workers, Scalia encountered one notable setback in the case of the death of a worker at Florida’s Sea World caused by a captive orca. Among arguments Scalia advanced against an OSHA finding was that Congress had never intended the law or the agency to have oversight of work involving wild animals to hold an employer liable for a workplace injury.
Upon appeal from an administrative ruling finding the company violated safety regulations, the case was heard by the DC Circuit Court in 2014 and the petition denied in a 2–1 opinion. In the majority was Merrick Garland; the lone dissenter was Brett Kavanaugh. In his dissent, Kavanaugh reached back to corporate formulations of defenses against workers’ compensation and safety laws from the early 1900s, arguing that employees assumed the risk of dangerous employment and that employers had no responsibility for safety measures. He characterized OSHA’s findings as paternalistic.
Since its creation in 1913, the Department of Labor has functioned as a vital player in the nation’s industrial development, especially with respect to the welfare of its employee workers. Perhaps, during confirmation proceedings, some Senator would request that the nominee recite and explain the stated mission of the Department:
To foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States, to improve their working conditions, advance opportunities for profitable employment, and assure work-related benefits and rights.
If confirmed, Scalia is free, as Secretary of Labor, to seek reversal of his loss to Tilikum, the orca who killed the trainer in 2010 and passed away in January 2017. Nonetheless, as a champion of the libertarian concept of the assumption of risk by workers and the Calvinistic notion that workers are not industrious, he will be in a position to vindicate his views on the safety and welfare of wage earners. And he will join the rank of other cabinet secretaries who see their missions as distorting and diverting the purpose of their agencies from intended beneficiaries to MAGA for orcas.