Jottings By An Employer's Lawyer

Tuesday, December 02, 2003

Where To Put The Portable Toilet - Let's Count The Cost of Deciding

As always, there is no doubt much more behind the story than is told by this 10 page opinion, including no doubt a long history of mistreatment by some of migrant workers. Nevertheless, the lengths that it took to get a reasonable reading of an OSHA standard which requires with some (very important for this case) exceptions, a toilet and handwashing facility be within a 1/4 mile walk for any hand laborer in a field, do seem to be the sort of issue that makes many question the wisdom of the legal process and government bureaucracies.

The particulars detailed in Advanta v. Chao (8th Cir. 12/01/03) [pdf] are that the exception allows toilets be located at the point of vehicular access when the terrain makes the 1/4 mile rule unworkable. In this case, Advanta placed the toilets at the end of corn rows, since putting them in the middle of the field which would have been required by the literal language of the standard, would have precluded the company from successfully detasseling the corn, the purpose for which the workers were there. Notwithstanding language in the preamble to the standard which seems, and in fact was, tailor made for this particular problem, first the DOL, then an administrative law judge and finally the Occupational Safety and Health Review Commission issued and enforced a $1,000 citation against Advanta.

Challenging the rules under the appropriate procedural process, Advanta went through those two proceedings and appealed to the 8th Circuit. There they were supported by an amicus brief of the American Trade Seed Association, a trade organization of 800 companies involved in seed corn production. ATSA must have been surprised to be there since it was the organization's initial comment to the standard during the rule-making process which elicited the language in the preamble to the standard which seemed to support precisely what Advanta (and apparently all 800 companies who are involved in similar activities) did on a regular basis.

In finding the DOL's position unworthy of support, the Court had a number of arguments to make that case, but the concluding one gives you a tenor of their feeling:
We also find it curious that the DOL's interpretation of the Standard would require a seed company to place facilities in cornfields for seasonal corn detasselers who are never more than a half hour from a facility, while a seed company would not have to provide facilities at all - whether in the field or at a point of closest vehicular access - for seasonal corn detasselers who work three hours or less each day. See 29 C.F.R. ยง 1928.110(c)(2)(v) ("Toilet and handwashing facilities are not required for employees who perform field work for a period of three (3) hours or less (including transportation time to and from the field) during the day.") The DOL's decision to interpret the Standard in such a confusing manner further convinces us the DOL's interpretation of the Standard is unreasonable and is unworthy of deference and enforcement against Advanta.
So let's count the cost - Initial rule-making, with participation by ATSA. Investigation by OSHA, hearing before an administrative law judge, appeal to the Occupational Safety and Health Review Commission, and finally the appeal to the 8th Circuit. It does seem to be a long and expensive road to common sense.

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