​Court: U.S. Court of Appeals for the Fifth Circuit
Issue: Administrative Law

RLC's Position:
The Occupational Safety and Health Review Commission (OSHRC) used its enforcement power to change its longstanding and unambiguous policy of allowing retailers to choose between several methods including global assessments and individual site assessments, in which to assess hazards and the need for personal protective equipment (PPE) at companies’ facilities. As a result of its action against a retailer for using a global assessment, OSHRC has overturned its longstanding policy and would now require a business to conduct individual site-specific assessments on all of its facilities.

The RLC filed a brief with the Fifth Circuit to explain the retail industry's customary practice of conducting global assessments, which allow them to provide its employees with a safe work environment and ensures consistency of safety messaging and uniform implementation of safety procedures.  The RLC requests that the Fifth Circuit overturn the OSHRC decision and allow retailers to continue to choose the assessment method that is most appropriate for companies’ operations. In the alternative, the RLC asks the court to direct OSHA to implement the change through a regulatory amendment in order to give the regulated community an opportunity to comment on the agency's proposed rule change.     

Case Outcome:
The Court affirmed the Commission's conclusion that the Secretary of Labor's interpretation that employers are required to conduct individual assessments of each facility within their supply chain was entitled to deference because it was not arbitrary and capricious. However, the court also held that because Wal-Mart did not have adequate notice that its actions were noncompliant with the rule, the court vacated the citation and penalty.

Procedural History and Case Documents: