No Harm, No Foul: The OSHRC's Authority to Label an OSH Act Violation de minimis and to Require No Abatement

This article analyzes the federal circuit court split on the issue of whether the Occupational Safety & Health Act (OSH Act) gives the Occupational Safety & Health Review Commission (OSHRC) the authority to declare an OSH Act violation de minimis (and to impose no fine and order no abatement) over the objection of the Secretary of Labor. 
The majority of circuits have ruled that the OSHRC does have this authority.  The Seventh Circuit, in an opinion written by Frank Easterbrook and joined by Richard Posner, has ruled that the OSHRC does not have this authority.  We agree with the majority approach that a textual analysis of the OSH Act indicates that the OSHRC has the authority to label a violation de minimis.  We also believe that there are good policy reasons for such a conclusion.  We believe that the OSHRC, as an adjudicatory agency, is in a uniquely good position to find, as a matter of fact, that a violation poses no threat to workplace safety.  Requiring abatement of a technical violation that does not affect workplace safety imposes a deadweight loss on employers that is not counterbalanced by enhanced workplace safety.  It also does not further the statutory purposes of the OSH Act.  Giving the OSHRC the ability to label a violation de minimis avoids these problems.