States Need to Corral the Federal Department of Labor

H aving grown up raising cows — and, for the past six years, hosting the Dixie National Rodeo — I know a thing or two about bulls. Bulls are stubborn, aggressive, and dangerous, especially if you turn your back on them. The federal Department of Labor is starting to look (and smell) a lot like a bull. It is trampling over the rights of property owners and states, putting America’s future at risk.

Here’s one example. In August 2023, the Department of Labor proposed changing essential aspects of Occupational Safety and Health Administration (OSHA) “walkaround” safety inspections. As we learned during the Covid-19 pandemic, OSHA has incredible reach and can touch virtually every business, farm, nonprofit, and church in America. OSHA is empowered to fine businesses thousands of dollars for safety violations. It can also stop work on job sites, order the removal of employees and, even petition a court to shut down an employer.

For more than 50 years, portions of the Occupational Safety and Health Act have been interpreted to require that an employer’s “employee” representative serving on a physical safety inspection be an actual employee, except when unusual circumstances suggest replacing the employee with a non-employee expert, “such as an industrial hygienist or safety engineer.”

Last year, OSHA proposed amending the existing regulation to say that “the representative(s) authorized by employees may be an employee of the employer or a third party.” The changes would grant OSHA compliance officers broad discretion to decide upon third-party walkaround representatives. Instead of a non-employee representative with safety experience and expertise, almost any non-employee who adds “value” could be on the safety-inspection team. For the Biden administration, this nebulous additional value might mean union organizers coming into non-union shops with an agenda that could hurt business owners and raise prices for consumers. It could also allow a hostile “community organizer” to go into a church, school, or nonprofit in order to intimidate and harass those with different viewpoints.

As Commissioner of Agriculture and Commerce for Mississippi, I pushed back. On November 13, 2023, I submitted a formal comment to the Department of Labor expressing my opposition to the proposed changes. I also joined other statewide officials in submitting a separate comment featuring a 26-page analysis from the Boundary Line Foundation that demonstrated why the proposed rule should be withdrawn.

Contrary to federal requirements, OSHA did not consult with states about possible alternatives to the proposed rule, at least as far as I can tell. After submitting my comments, I didn’t hear anything back. Then, I tried to meet with OSHA and, separately, with the White House Office of Intergovernmental Affairs (IGA) to discuss my concerns in person. I was quickly informed that IGA was “unable to accommodate [my] request,” even though it is IGA’s job to meet with state officials. Subsequently, I was told that the White House had sent the proposed OSHA rule changes to the Office of Management and Budget (OMB), and that I should meet with them instead. Coincidentally, this hand-off occurred on the same day my request to meet with OSHA was submitted.

My meeting with OMB was scheduled for the morning of March 21, 2024. On March 20, I received an email confirming my meeting. Around 1 a.m. on March 21, 2024, OMB canceled my meeting and informed me that they had concluded review of the OSHA walkaround rule, after what observers have characterized as an “unusually short” process. On April 1, the Department of Labor announced that the new OSHA walkaround rule is final and would go into effect on May 31, 2024.

It is one thing for the Department of Labor to issue a bad rule. (I recently signed another comment opposing yet another bad rule from the department, this time related to state apprenticeship programs.) It is quite another to so blatantly disregard the concerns of state officials like me who are trying to protect the safety of employees and the private-property rights of employers.

A bad rule can be changed or struck down in court. Here, we are confronting a federal rule-making process that seems to be intentionally blocking states from providing constructive input. The way the federal government is making rules is broken, and the states — not just Congress or the courts — need to step up and fix it.

In my experience, the Department of Labor doesn’t want to meet. It seems to be hoping the states will just go away. But as a seasoned cattleman, I know it’s dangerous to ignore a raging bull. We’ve got to corral the department before it tramples the American Dream, hurting American workers, farmers, and business owners in the process.