January 08, 2019

Senator Warren and Chairman Scott Lead Request for Inspector General Audit of DOL's Controversial Child Labor Rule

Members Raise Concerns of Labor Department's Use of Flawed, Undisclosed Data to Justify Proposal to Allow Unsupervised 16- and 17-Year-Olds to Operate Power-Driven Patient Lifts

Text of Letter (PDF)

Washington, DC - United States Senator Elizabeth Warren (D-Mass.) and Representative Bobby Scott (D-Va.), Chairman of Education and Labor Committee, led a letter to the Department of Labor (DOL) Office of Inspector General (IG) Scott Dahl requesting an audit of DOL to determine whether the agency deviated from agency regulatory and data quality requirements when it developed a proposed rule relaxing child labor standards in health care occupations. Joining Senator Warren and Chairman Scott in sending the letter are Representatives Rosa DeLauro (D-Conn.), Mark Takano (D-Calif.), and Lucille Roybal-Allard (D-Calif.).

On September 27, 2018, DOL issued a Notice of Proposed Rulemaking (NPRM) to remove the operation of power-driven patient lifts from the list of prohibited activities for 16- and 17-year-old workers under Hazardous Occupation Order (HO) 7, which would in effect allow untrained young workers to perform this work independently.

"While we have serious concerns that the Secretary of Labor is deviating from his statutory duty to protect the safety of young workers in hospitals and nursing homes, we write to draw your attention to flaws we have identified in DOL's rulemaking process for this NPRM," wrote Senator Warren and Chairman Scott.

Under current DOL policy, workers under 18 years of age are prohibited from operating or assisting in the operation of several types of hoisting apparatus without supervision, which, according to research by the National Institute for Occupational Safety and Health, is unsafe.

To justify its proposal to allow 16- and 17-year-olds to operate power-driven patient lifts unsupervised, DOL pointed to a survey that the Department said showed current policy is restricting employment and training opportunities for young workers. But DOL did not include in its public docket for the NPRM a copy of a survey or any information regarding its methodology, and it has failed to do so despite requests from members of Congress.

Beyond DOL's failure to disclose its evidentiary basis for the rule, the agency's reliance on the survey also raises questions about whether DOL used reliable, accurate data in the rulemaking process. After reviewing an obtained copy of the 2012 survey results, the senator and the chairman raised concerns that the survey data does not actually justify the proposed rule, and the use of this data in the NPRM may violate DOL's data quality guidelines.

Based on these serious concerns about whether DOL is complying with requirements related to transparency and data quality, Senator Warren and Chairman Scott urged IG Dahl to conduct an audit of this ongoing rulemaking process.

In addition to the continuation of Senator Warren's and Chairman Scott's efforts to ensure DOL's rulemaking process is based on compelling evidence and advances the interests of American workers, Senator Warren's bill, the Anti-Corruption and Public Integrity Act, would explicitly require agencies to publicly disclose how it considered scientific evidence, including any studies or research, in the rulemaking process, so that members of the public are able to fully evaluate and comment on the justification for a proposed regulation and determine whether it is truly in the public interest.

In December 2017, after DOL proposed a harmful rule that would have allowed employers to take employees' tips, reports surfaced that DOL political leadership, along with OMB officials, hid an internal analysis that showed the proposal would cost workers billions of dollars. Senator Warren and Chairman Scott sent several letters questioning the administration. The Inspector General has since opened an investigation into that rulemaking.