October 27, 1999
The Administration strongly opposes H.R. 1987, which would require the
payment of attorneys' fees and costs to small employers and labor
organizations that prevail in proceedings brought against them by the
Occupational Safety and Health Administration (OSHA) or the National Labor
Relations Board (NLRB). If the bill were presented to the President, the
Secretary of Labor would recommend that he veto it.
By imposing a strict, no-fault "loser pays" requirement against OSHA and NLRB, H.R. 1987 is clearly designed to discourage these two agencies from pursuing all but the clearest cases. If successful in deterring OSHA and NLRB from bringing cases that may be difficult to win but are substantially justifiable, the legislation would result in a serious erosion of the rights and protections of workers who have no private right-of-action and rely entirely on the two agencies to protect their rights to a safe and healthful workplace and free choice in workplace representation.
The Administration believes that the existing Equal Access to Justice Act provides small employers and labor organizations appropriate protection against prosecutorial overreaching. It requires compensation for small entities that are prevailing parties in cases where the Government was not substantially justified in bringing a law enforcement action, and provides for the payment of attorneys' fees and expenses when the Government's demand is substantially in excess of the judgment finally obtained.
H.R. 1987 could affect direct spending; therefore, it is subject to the pay-as-you-go (PAYGO) requirement of the Omnibus Budget Reconciliation Act of 1990. Office of Management and Budget's preliminary scoring estimate is that H.R. 1987 would have a net PAYGO effect of zero in each of FYs 2000-2004.