Eugene Scalia’s Workplace Safety Record Too Dangerous for the Labor Department

Throwback Thursday: Scalia Once Argued the Federal Government Doesn’t Have Leading Role in Occupational Safety and That Repetitive Stress Injuries on the Job are Medical “Quackery”

WASHINGTON, D.C. — Eugene Scalia fundamentally disagrees that one of the most important responsibilities of the Labor Department is enforcing the laws that protect the health and safety of the nation’s workers. Scalia wrote in 2005: “The Government does not have the sole-or even primary-role in furthering occupational safety and health or compliance with the employment laws.” Consumer watchdog group Allied Progress called that a dangerous and disqualifying perspective from someone who’s expected to be considered for Trump’s next Labor Secretary.

Scalia’s opposition to federal workplace oversight made him a natural fit to represent a number of corporate interests in their 2001 fight to undo the Clinton-era ergonomics rule – a regulation designed to prevent injuries among workers who perform repetitive tasks. Scalia called it “the most costly and intrusive regulation in (OSHA’s) history” and often trashed the science of ergonomics as “quackery.” Scalia changed his tune, however, when he was nominated to be Labor Solicitor during the Bush administration, admitting that “ergonomic pain is real” when a promotion was on the line.

“Workers deserve a Labor Secretary who’s always on their side, not just when it’s politically convenient. Someone who believes the government should have minimal say in keeping workers safe may be a great choice to represent corporations that like to cut corners – but a dangerous choice to lead the Labor Department,” said Jeremy Funk, spokesman for Allied Progress.

Added Funk: “Whether it’s his extreme and outdated views that companies shouldn’t be held responsible for sexual harassment at the workplace, or his belief workers should enforce their own workplace safety, Eugene Scalia is too extreme and too conflicted for this role. Senators shouldn’t wait to reject Scalia’s potential nomination because what else do they need to know?”

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WHAT YOU NEED TO KNOW:

Eugene Scalia’s Dangerous Record on Workplace Safety

Eugene Scalia Believes The Ergonomics Rule Would Have Been “‘The Most Costly And Intrusive Regulation In [OSHA’s] History’” And Has Fought Against Ergonomics On Both The Federal And State Level.

Scalia Believes The Ergonomics Rule Was A “‘Major Concession To Union Leaders’” And Called Proposed OSHA Ergonomics Rules On Workplace Safety “‘The Most Costly And Intrusive Regulation In (The Agency’s) History.’”

In 2000, Eugene Scalia Called Proposed Occupational Safety And Health Administration (OSHA) Workplace Rules “‘The Most Costly And Intrusive Regulation In (The Agency’s) History.’” “Writing last year for the libertarian Cato Institute, Eugene Scalia called proposed Occupational Safety and Health Administration workplace-safety rules ‘the most costly and intrusive regulation in (the agency’s) history.’” [Anne Gearan, “SUPREME COURT NOTEBOOK: Marksman Scalia bags a buck,” Associated Press, 05/01/01]

Scalia Has Called The Ergonomics Rule A “‘Major Concession To Union Leaders.’” “In a Wall Street Journal commentary published on Jan. 5, 2000, Mr. Scalia wrote that the movement for ergonomics rules was ‘a major concession to union leaders who know that ergonomic regulation will force companies to give more rest periods, slow the pace of work and then hire more workers (read: dues-paying members) to maintain current levels of production.’” [Neil A. Lewis, “Storm Warning Already Given To Nominee as Labor Solicitor,” The New York Times, 07/07/01]

Eugene Scalia Has Defended Major Corporations Against Federal Ergonomic Rules, While Also Fighting Against “State-Level OSHA Ergonomics Standards.”

Eugene Scalia Has Represented The National Coalition On Ergonomics, The United Parcel Service, And Anheuser-Busch Cos In Their Fights Against Ergonomic Regulation. “At the time, the 37-year-old Scalia, son of Supreme Court Justice Antonin Scalia, represented the most strident opponents of a federal ergonomics rule — the National Coalition on Ergonomics, United Parcel Service Inc. and Anheuser-Busch Cos. He also participated in efforts to block ergonomics standards in California and Washington state.” [Cindy Skrzycki, “Labor Choice Decried Ergonomics Rule,” The Washington Post, 06/21/01]

Scalia Has Fought Against “State-Level OSHA Ergonomics Standards” In California, North Carolina And Washington State. “But he didn’t limit himself to defending clients: Scalia traveled to California, North Carolina, and Washington State to fight state-level OSHA ergonomics standards, and he has produced a steady supply of anti-ergonomic screeds. Scalia’s views occasionally rise to the level of outright zealotry.” [Joshua Green, “Ergonomic Enemy; After a career of bashing workers’ rights, Eugene Scalia may soon control them,” The American Prospect, 09/10/01]

Eugene Scalia Has Repeatedly Derided The Science Of Ergonomics But Flip Flopped On The Issue When He Was Trying To Be Confirmed As Solicitor For The Department Of Labor.

Eugene Scalia Has Repeatedly Derided The Science Of Ergonomics, Describing It As “Quackery” And “‘A ‘Science’ So Mysterious That The Agency Itself Cannot Fathom It.’”

Scalia Has Called Ergonomics Medical “Quackery.” “Scalia, a former partner in the Washington office of the law firm Gibson, Dunn & Crutcher LLP, represented management on labor issues and is a longtime critic of employment laws and policy. In 1994, he wrote that OSHA’s proposed ergonomics rules were based on thin medical research. ‘As medical science, ergonomics is quackery,’ he added.” [James C. Benton, “Bush Upsets Unions by Choosing Scalia,” Congressional Quarterly Weekly, 08/10/01]

Scalia Has Referred To Ergonomics As “‘A ‘Science’ So Mysterious That The Agency Itself Cannot Fathom It.’” “And in a June 2000 essay for the Cato Institute, Scalia wrote, ‘OSHA wants to entrench the questionable science of ergonomics in a permanent rule. But no agency should be permitted to impose on the entire American economy a costly rule premised on a ‘science’ so mysterious that the agency itself cannot fathom it.’” [Jennifer A. Dlouhy, “Scalia To Be On Receiving End Of Panel’s Hostile Questioning,” Congressional Quarterly Daily Monitor, 10/16/01]

Eugene Scalia Has Also Been Accused Of Suggesting That Repetitive Work Injuries Are Merely The Result Of “Malcontents Who Fake Illness To Create ‘False Epidemics.’”

One Columnist Wrote That Scalia Has Suggested There Is No Such Thing As Repetitive Work Injuries And That Some Employees Fake Illness Or Injury Because They Are Simple Unwilling To Work Through Minor Discomfort. “And so for Scalia, who as solicitor would direct the work of some 500 labor department lawyers charged with enforcing worker protections, there is no such thing as a worker who has genuinely suffered repetitive-motion workplace injuries. There are, he has written, only malcontents who fake illness to create ‘false epidemics’ that turn up in official records as suspicious clusters of injuries. Some might feel strain, he says, but these people are merely unhappy and simply unwilling to work through everyday aches and pains that happier workers take in stride.” [Marie Cocco, “Scalia’s Son, Rightly, Faces Battle Over Nomination,” Newsday, 08/30/01]

Despite His Supposed Strong Personal Objections To Ergonomics As A Science, Under The Spotlight Of A Confirmation Hearing Eugene Scalia Claimed He Would “Vigorously Enforce” Ergonomics Rules If Required And Said He Believed That “Ergonomics Is Valid.”

In His Opening Remarks At His 2001 Confirmation Hearing, Scalia Stated That He Would “Fairly And Vigorously Enforce” Any Labor Department Rules On Ergonomics. “Finally, if I am confirmed, and if the Department promulgates an ergonomics rule, I will fairly and vigorously enforce it. In my articles on labor and employment law, I have not opposed any of the hundreds of laws and regulations that I would be called to enforce as Solicitor. Not one. If an ergonomics rule is in place, it, also, will be the law. And any views that I hold on ergonomics pale beside my strong conviction in the rule of law and in the duty of employers, government officials, and all the public to uphold and obey the law.” [“Testimony Eugene Scalia Solicitor Of The Department Of Labor Confirmation Hearing For The Position Of Solicitor Of The Department Of Labor Committee On Health, Education, Labor And Pensions United States Senate,” Federal Document Clearing House Congressional Testimony, 10/02/01]

Scalia Has Stated His Views On Ergonomics “Pale Beside My Strong Conviction In The Rule Of Law.” “‘Any views that I hold on ergonomics pale beside my strong conviction in the rule of law and in the duty of employers, government officials and all the public to uphold and obey the law,’ Mr. Scalia told the Senate Committee on Health, Education, Labor and Pensions.” [Audrey Hudson, “Labor nominee says law trumps his views,” The Washington Times, 10/03/01]

During His Hearing, Scalia Attempted To “Back Away” From His Prior Views On Ergonomics, Stating, “I’ve Taken Pains To Acknowledge That Ergonomic Pain Is Real And That Ergonomics Is Valid.” “Scalia, whose nomination has been pending for five months, told senators at his confirmation hearing that critics have misinterpreted or exaggerated his past views on ergonomics. In his writings, he has derided the science underlying ergonomics as ‘junk science par excellence’ and ‘quackery.’ At his hearing earlier this month, Scalia, who has represented mainly corporate clients, seemed to back away from those views. ‘I’ve taken pains to acknowledge that ergonomic pain is real and that ergonomics is valid,’ he testified. ‘I’ve urged employers to address ergonomics and adopt ergonomics measures.’” [Robert Jackson, “Split panel approves Scalia for Labor post,” The Chicago Tribune, 10/17/01]

An Office Of The Center For Disease Control Says Ergonomics Can Help Companies Be More Productive And Lower “Rates Of Absenteeism, Lost Time Injury, And Worker Compensation Premiums.”

The CDC’s National Institute For Occupational Safety And Health Says “Ergonomics Programs” Can Help Companies Reduce “Losses In Productivity, Quality, And Profit By Lowering Rates Of Absenteeism, Lost Time Injury, And Worker Compensation Premiums.”

The Center For Disease Control’s National Institute For Occupational Safety And Health Says, “Ergonomics Programs” Enable Employers To Develop Solutions To Prevent Or Reduce “Losses In Productivity, Quality, And Profit By Lowering Rates Of Absenteeism, Lost Time Injury, And Worker Compensation Premiums” Due To Work Related Musculoskeletal Disorders.“[Work Related Musculoskeletal Disorders] are costly and can significantly reduce worker productivity and morale. Workers suffering from [Musculoskeletal Disorders] have difficulty meeting the demands of their jobs. The Bureau of Labor Statistics reported 31% (356,910 cases) of nonfatal occupational injuries and illnesses in 2015 were related to MSDs. The median days away from work for a WMSD is 12 days, compared to eight days off for other work-related injuries. Ergonomics programs enable employers to detect WMSD problems and develop solutions. This approach prevents further losses in productivity, quality, and profit by lowering rates of absenteeism, lost time injury, and worker compensation premiums.” [“Elements Of Ergonomics Programs,” The National Institute for Occupational Safety and Health (NIOSH), accessed 08/21/19]

As Recently As 2017, The Types Of Problems Ergonomics Prevent Were Responsible For 34% Of “Days Away From Work” In The Manufacturing Sector.

The Study Of Ergonomics Is Designed To Prevent “Soft Tissue Injuries And Musculoskeletal Disorders” Caused By Repetitive Or Sustained Exposure To Certain Forces Acting On The Body. “The goal of ergonomics (i.e. the scientific study of people at work) is to prevent soft tissue injuries and musculoskeletal disorders (MSDs) caused by sudden or sustained exposure to force, vibration, repetitive motion, and awkward posture.” [“Ergonomics And Musculoskeletal Disorders,” The National Institute for Occupational Safety and Health (NIOSH), accessed 08/21/19]

  • The US Bureau Of Labor Statistics Reported That, In 2017, Musculoskeletal Disorders Accounted For 34% Of Days Away From Work In The Manufacturing Sector Alone. “Musculoskeletal disorders (MSDs) accounted for 34 percent of the DAFW cases in manufacturing and fell 1,930 cases to 38,950 in 2017. The rate was 31.4 cases per 10,000 FTE workers, down from 32.9 in 2016. The median days away from work was 12, two days fewer than in 2016.” [“News Release – Employer-Reported Workplace Injuries and Illnesses – 2017,” US Bureau of Labor Statistics, 11/08/18]

Eugene Scalia Wrote That The Government Does Not Have “The Sole-Or Even Primary-Role In Furthering Occupational Safety And Health Or Compliance With The Employment Laws,” Arguing That “Unions Are The Most Effective Advocate For Workplace Safety.”

While A Partner At Gibson Dunn, Eugene Scalia Wrote A Law Review Article On “Inspection And Enforcement Strategies In Labor And Employment Law,” With A Focus On The Occupational Safety And Health Administration (OSHA). “The subject of this Essay is inspection and enforcement strategies in labor and employment law, with particular focus on the Occupational Safety and Health Administration (OSHA). I approach the subject from two somewhat different perspectives, having been a private practitioner representing clients being investigated and prosecuted by OSHA, and having also served as Solicitor of Labor, with OSHA as one of my clients and with responsibility myself for prosecuting OSHA cases.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

  • Eugene Scalia Was A Partner At Gibson, Dunn & Crutcher LLP At The Time. “Eugene Scalia is a partner in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP. He is co-chair of the firm’s Labor and Employment Practice Group and a member of the firm’s Appellate and Constitutional Law Practice Group.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Wrote, “The Government Does Not Have The Sole-Or Even Primary-Role In Furthering Occupational Safety And Health Or Compliance With The Employment Laws,” Arguing That It Is Primarily Left To Employers And Employees. ““The government does not have the sole-or even primary-role in furthering occupational safety and health or compliance with the employment laws generally. Others with those responsibilities include employers and employees, individually and collectively through their labor unions.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Argued That In Lieu Of Government Oversight, “Unions Are Among The Most Effective Advocates For Workplace Safety.” “Unions are among the most effective advocates for workplace safety. In unionized workplaces on a daily basis, unions play an important role in identifying and addressing occupational hazards. When necessary-and at times when not necessary-unions contact OSHA to complain and trigger inspections. So, the question arises, as the government sets its inspection and enforcement priorities, what consideration should be given the fact of union representation at a worksite?” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Earned His Reputation As A “Union Antagonist” In His Fight Against A Rule To Protect Workers From Repetitive Stress Injuries, Arguing It Was A Union Scheme To “Force” Companies To Give Workers More Breaks And Hire More Dues-Paying Members.

Eugene Scalia Gained A Reputation As A “Union Antagonist” In “His Campaign Against The Ergonomics Rule, A Clinton-Era Regulation That Sought To Protect Workers From Repetitive Stress Injuries. “But it was through his campaign against the ergonomics rule that Mr. Scalia earned his reputation as a free-market conservative and union antagonist. He frequently dismissed the link between repetitive motion and physical ailments suffered by workers, writing in a Cato Institute publication that disorders such as carpal tunnel syndrome are ‘purportedly’ caused by typing and asserting that ‘ergonomists cannot establish in any given case whether an ailment was caused by work or by genetic factors or other activities, such as sports.’” [Maggie Haberman, Noam Scheiber, and Michael Crowley, “Trump to Nominate Eugene Scalia for Labor Secretary Job,” The New York Times, 07/18/19]

  • The Ergonomics Rule Was “A Clinton Administration Regulation That Would Have Protected Workers From Repetitive Stress Injuries.” ““Much of the fear about Mr. Scalia’s nomination was based on his opposition to a Clinton administration regulation that would have protected workers from repetitive stress injuries, which became known as the ergonomics rule. Mr. Scalia had weighed in frequently against the rule, deriding the rationale for it as ‘unreliable science.’” [Maggie Haberman, Noam Scheiber, and Michael Crowley, “Trump to Nominate Eugene Scalia for Labor Secretary Job,” The New York Times, 07/18/19]

Eugene Scalia Complained In A Wall Street Journal Opinion Piece That The Rule Was “Evidence Of Crass Political Calculation By Labor Unions,” Arguing That It Would “‘Force’” Companies To “‘Hire More Workers (Read: Dues-Paying Members)” And To Give Them More Breaks And Slow Productivity. “He saw in the rule evidence of crass political calculation by labor unions, writing in a Wall Street Journal opinion article ‘that ergonomic regulation will force companies to give more rest periods, slow the pace of work and then hire more workers (read: dues-paying members) to maintain current levels of production.’” [Maggie Haberman, Noam Scheiber, and Michael Crowley, “Trump to Nominate Eugene Scalia for Labor Secretary Job,” The New York Times, 07/18/19]

Eugene Scalia Lambasted An OSHA Program To Increase Accountability For Problem Employers As “Coercion” And “An Imposition Of Government Power”—He Even Invoked An Anti-Government Quote From Ronald Reagan To Criticize Safety Inspections.

 Eugene Scalia Has Argued That “OSHA’s [Occupational Safety And Health Administration’s] Inspection Authority Was Openly Used As A Form Of Coercion” And “An Imposition Of Government Power” Under A 1998 Program In Which OSHA Tried To Increase Accountability For Workplaces With High Rates Of Worker Injury.

Eugene Scalia Wrote, “OSHA’s Inspection Authority Was Openly Used As A Form Of Coercion” Under A 1998 Program In Which The Agency Told Employers They Could Either Adhere To Additional Safety Requirements Or Face Increased Inspections.“The most notable example of this approach is a 1998 OSHA program called the ‘Cooperative Compliance Program.’ Under the program, employers with high reported injury rates were told they had been selected for onerous comprehensive ‘wall-to-wall’ inspections. But, they were advised, we will greatly reduce the likelihood of inspection-and any inspections that do occur will be relatively benign-if you agree to do a series of things currently not required by federal law. Under this program, which was invalidated by the D.C. Circuit, OSHA’s inspection authority was openly used as a form of coercion to prompt employers to do things that, at the time, OSHA did not have the authority to require.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Called OSHA Inspections “An Imposition Of Government Power That Causes A Company To Change Its Practices Even Though The Law Does Not Require That It Do So.” “Another (perhaps related) view is that inspection itself is a form of enforcement, in the sense that it is an imposition of government power that causes a company to change its practices even though the law does not require that it do so.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Argued That During Unannounced OSHA Inspections, The Government “Comes Uninvited To Private Property.” “The third view of the purpose of inspections-which is my view, the most common view, and the view that coincides with the Fourth Amendment-is that they are for investigative and enforcement purposes only. OSHA has separate consultation and compliance assistance programs to show employers how to improve workplace safety. But when it comes uninvited to private property, the government has a right of access only when it has probable cause to believe that a violation of a law enforceable by that agency has occurred.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Despite These Arguments, Eugene Scalia Admitted That In OSHA Inspections, “Probable Cause Is Defined Somewhat Loosely.” “In administrative inspection schemes, probable cause is defined somewhat loosely-but the justification for government entry remains the search for a prosecutable violation of the law.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Eugene Scalia Invoked An Anti-Government Quote From Ronald Reagan—“‘The Nine Most Terrifying Words In The English Language Are: I’m From The Government, And I’m Here To Help.’”—When Discussing OSHA Inspections.

Eugene Scalia Said That OHSA Inspections Were Based On A Philosophy Of “‘We’re The Government And We’re Here To Help.’” “For instance, OSHA inspections may be viewed as a sort of house-call for troubled employers: federally funded corporate consulting intended less to effect compliance with the law and more to help employers find ways to address hazards regardless of whether those hazards violate federal law. Call this approach, ‘We’re the government and we’re here to help.’ Under this view, it does not matter whether violations are found on an OSHA inspection, as long as there has been a chance for the government to reach out and touch an employer.” [Eugene Scalia, “Inspection and Enforcement Strategies at the U.S. Department of Labor,”University of Pennsylvania Journal of Labor & Employment Law, Spring 2005]

Ronald Reagan Once Said, “‘The Nine Most Terrifying Words In The English Language Are: I’m From The Government, And I’m Here To Help.’”[“August 12, 1986 Reagan Quotes and Speeches,” Ronald Reagan Presidential Foundation & Institute, accessed 07/24/19]

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