WASHINGTON (PAI)–Call them the “Midnight Rules.” In haste, and to meet legal deadlines, the GOP Bush regime pushed through approximately 90 pro-business federal rules before Nov. 22, trying to lock them in so the incoming Obama administration can’t overturn them.
One big one, which has drawn outrage from organized labor and women’s groups, would weaken the Family and Medical Leave Act, by making it tougher for workers to take “intermittent leave” for such things as doctors’ appointments, restricting workers from using paid vacation time for family leave and by opening workers’ medical records to company executives, not just to doctors.
And another, defying a prior federal court ruling against Bush’s Transportation Department, would let truck companies force drivers to stay longer behind the wheel and with less-frequent rest breaks. That could lead to unsafe conditions on the road.
Bush’s push to institute “Midnight Rules” is like that of prior administrations, including the Clinton administration, according to OMB Watch, a non-profit group that tracks government rule-making. Rules are needed to provide detailed standards for business, workers and consumers to follow when trying to obey sometimes-vague laws.
But the difference between Bush’s action now and Clinton’s eight years ago is that Bush issued the rules early enough so the legal period–60 days–to challenge them expires before Democratic President Barack Obama takes office at noon on Jan. 20. Clinton didn’t do that, and Bush was able to yank and dump several of Clinton’s rules. The GOP-run Congress killed another pro-worker Clinton rule, on ergonomics.
The question facing unions and their allies, who are outraged by Bush’s schemes, is how they can halt or reverse them. The Bush “midnight rules” include:
Family and Medical Leave
Bush’s rules, at business behest, would make it harder for workers to take intermittent leave for such things as doctors’ appointments. They would also require workers with “chronic conditions” to more frequently give firms advance notice–and get approval–for taking leave. Bush would also make it harder or a worker to take paid vacation or personal leave for family issues. And Bush would let firms snoop and spy into workers’ medical records, by allowing companies to demand them of workers’ doctors. Right now, the records are only shared among doctors.
Bush’s “11th-hour move to weaken the Family and Medical Leave Act is another slap in the face to working families struggling just to get by,” AFL-CIO President John J. Sweeney said. He called it “reprehensible, but all too predictable” that Bush “would use his last days to give big business one more gift by placing more hurdles in front of workers who need to care for their families.”
“The new FMLA regulations for workers take us in the wrong direction, and are harmful and unnecessary. They will restrict access to protections workers relied on for 15 years,” added Debra Ness of the National Partnership for Women and Families.
The National Women’s Law Center hosted a conference call on Nov. 19 among women’s groups, including the Coalition of Labor Union Women and NPWF, to discuss Bush’s changes. “We’re still considering all of our options, and talking to our allies,” including unions, about what to do, said Sharyn Tejani, NPWF’s senior policy counsel.
A complicating factor for groups involved with family leave is that one section of Bush’s rules extends family leave, for the first time, to military families. They don’t want to delete those rules, Tejani added.
On-the-job safety risks
This Bush brainstorm would change the way federal regulators calculate on-the-job risks, by assuming workers don’t stay in a job too long–and thus lower the risk of exposure to toxic chemicals and other safety hazards. The rule would also add an extra comment period to new worker health standards, creating unneeded delay. It was dreamed up by ideologues in Bush Labor Secretary Elaine Chao’s policy office, without consulting federal job safety and health professionals.
The Bush Federal Motor Carrier Safety Administration–the agency that is supposed to ensure trucks are safe and truckers drive safely and with proper licenses–sent its rule to OMB on Oct. 21. It would have the truckers drive 11 hours straight, not 10, with shorter rest afterwards and greater probability that they must do it again soon. That type of schedule produces tired truckers and more accidents.
FMCSA tried its truckers rule twice earlier in the Bush regime, but fouled up its own process so badly that a Teamsters lawsuit got the whole thing thrown out. “We will continue to fight this dangerous midnight rule through the courts and through Congress,” Teamsters President James Hoffa said. “We’re currently reviewing our legal options, especially since the court threw out this regulation twice.”
The union said FMCSA tried again “in brazen defiance of the court and in subservience to the trucking industry.” Hoffa added: ”Letting tired truck drivers spend even more time behind the wheel is foolish and dangerous. I just hope this country can survive the last days” of Bush’s “frenzy of gutting public health and safety protections.”
Drug and alcohol testing for miners
The Bush Mine Safety and Health Administration proposed testing workers in “safety-sensitive positions” for drug and alcohol use. “Safety-sensitive” was purposely left vague.
Mine Workers Communications Director Phil Smith says both the union and the mining companies opposed Bush’s scheme at an Oct. 28 Mine Safety and Health Administration hearing. “But it’s not clear that it’ll go forward. Their process was flawed. If they do, we’re prepared to take action legally or to solicit congressional action,” Smith added.
But there’s another path unions and their allies could use to overturn Bush’s “Midnight Rules” — an ironic one. It’s called the Congressional Review Act, or CRA.
That law, passed in the opening days of the GOP “Contract With America” in 1995, gives Congress a limited time after any new rule hits the books–and Bush’s schemes take effect just before Obama’s inauguration–to pass a law dumping that rule.
The Congressional Review Act has been used just once, and that’s the irony for workers. In 2001, the GOP-run Congress, in the very first law it passed under Bush, used CRA to dump President Clinton’s rule regulating ergonomic, or repetitive-motion, job safety injuries. Bush signed the repeal. Bush and business pushed for it.
Ever since then, unions and their allies have agitated, unsuccessfully, for action on ergonomic injuries, which number in the hundreds of thousands. Now, says Matthew Madia of OMB Watch, the foes of Bush’s brainstorms–opposed overwhelmingly in public comments–might have to use the Congressional Review Act to overturn them.
“Even if the Obama administration can’t do anything, the new Congress…will have an opportunity to take a look at these rules. They’ll have 60 session days, under the CRA, to determine which rules they think are the worst, and they’ll be able to introduce a resolution to disapprove these rules. If that’s passed by both houses and signed by the president, then it’ll be like the rules never came into effect at all,” he told Democracy Now! radio.
The one problem with using the Congressional Review Act to throw out a Bush “midnight rule” is that it’s an all-or-nothing proposition, Tejani points out. That means if foes of Bush’s weakening of family and medical leave try to use CRA to overturn it, the new rules helping military families take family and medical leave get tossed out, too.
Nevertheless, “If people can contact their congressmen in the new year and tell them about this Congressional Review Act and why it’s important to undo some of these rules, I think we could see some progress made in 2009,” Madia concluded.