OSHA: The 1970s Meet the 21st Century

The reaction certainly wasn’t what anybody expected, least of all at the Occupational Safety and Health Administration (OSHA). It was a simple letter in response to a Houston company’s question about employers’ duties regarding employees working at home. The letter sat for two years before getting a response, and for two months afterwards on OSHA’s website, before the media saw it.

But then the letter hit the fan. Headlines across the country reported OSHA’s view that employers are liable for the health and safety of 19 million Americans who do their work from home, potentially including everything from regulation emergency exits to ergonomically correct chairs.

Sitting here writing this column from home, the implications stagger the imagination. As my cat walks across my keyboard, spreading God knows how many particles into the home office environment, I wonder what kind of liability CEI is incurring. And what’s going on in my bathroom? How could Fred Smith allow that to happen?

The ruling became immediate fodder for the radio talk shows, television commentators, and editorial writers. Typical was one DC radio station that aired some half-dozen listener reactions–all negative. One woman, who had been working at home due to a long-term illness, reported her employer had already let her know she could not continue to do so, putting her on unpaid leave status.

Even the Washington Post, which has rarely met a regulation it didn’t like, attacked OSHA’s ruling and its “ham-handed analyses.” (Who are you, I wanted to ask, and what have you done with the Washington Post editorial board?).

It was the biggest PR debacle since new Coke. Within 24 hours, Labor Secretary Alexis Herman called for a ceasefire, publicly withdrawing the OSHA letter.

The battle isn’t necessarily over. Although OSHA now takes the position that employers can’t be held liable for most at-home “white collar” work, without further legislation there’s no guarantee its views won’t change again in the future.

Nevertheless, even if tentative, this was a victory for opponents of overregulation. Such victories are too rare, and it’s fair to ask: Why were the regulators stopped here while they win on so many other fronts? At least three factors aided the anti-regulation cause:

1. OSHA hadn’t done its homework. Despite some conservatives’ assertions that the letter was part of a long-term, labor-union plotted initiative, by all indications the Clinton Administration and its allies were surprised by the controversy. The government’s defense of its position was slow and confused. And, except for some New Deal diehards here and there, the “vast leftwing conspiracy” wasn’t activated.

2. The issue hit home with reporters. Most journalists have probably worked at home at some point–what writer hasn’t? So unlike regulation of some far-away chemical plant or exotic financial practice, this is something reporters were familiar with. They didn’t have to ask others what it meant–they knew.

3. The fight pitted the past vs. the future. The OSHA bureaucrats probably saw this ruling as a natural extension of worker protection rules they had enforced since 1970. How 20th century. They didn’t realize that telecommuters don’t want protection from their employers, they want independence from them. That was the promise of the communications revolution–and OSHA was taking that future away from them.

This third factor could be a key to success in future policy battles. It’s increasingly clear that regulators are now the ones standing astride the tides of history, yelling “Stop.” Critics of regulation now have the opportunity to reclaim the title of “progressive” that was lost some 100 years ago. If we want more victories, we should do so.