BEFORE THE

SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

OF THE

COMMITTEE ON EDUCATION AND

THE WORKFORCE

HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

SECOND SESSION

HEARING HELD IN WASHINGTON, DC, JANUARY 28, 2000

Printed for the use of the Committee on Education

and the Workforce

OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

OPENING STATEMENT OF RANKING MEMBER TIM ROEMER, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE *

STATEMENT OF CHARLES N. JEFFRESS, ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. *

STATEMENT OF DONALD W. UPSON, SECRETARY OF TECHNOLOGY, COMMONWEALTH OF VIRGINIA, RICHMOND, VA *

STATEMENT OF THORNE AUCHTER, FORMER ASSISTANT SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, D.C. *

STATEMENT OF BOBBI KILBERG, PRESIDENT, NORTHERN VIRGINIA TECHNOLOGY COUNCIL, MCLEAN, VIRGINIA *

STATEMENT OF ARTHUR G. SAPPER, ESQ., OSHA PRACTICE GROUP, MCDERMOTT, WILL AND EMERY, WASHINGTON, D.C. *

APPENDIX A - WRITTEN OPENING STATEMENT OF CHAIRMAN PETE HOEKSTRA, SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS, COMMITTEE ON EDUCATION AND THE WORKFORCE; FAX, JANUARY 5, 2000 FROM RICHARD FAIRFAX, SUBJECT: OUR WORKING AT HOME INTERP; FAX, JANUARY 5, 2000 FROM GREGORY BAXTER, SUBJECT: WORK–AT-HOME; OSHA REGULATIONS (STANDARDS-29 CFR) POLICY AS TO DOMESTIC HOUSEHOLD EMPLOYMENT ACTIVITIES IN PRIVATE RESIDENCES. – 1975.6; "JEFFRESS: ERGONOMICS RULE MAY COVER AT-HOME WORK SITES," INSIDE OSHA, JANUARY 24, 2000 *

APPENDIX B - WRITTEN STATEMENT OF CHARLES N. JEFFRESS, ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. *

APPENDIX C - WRITTEN STATEMENT OF DONALD W. UPSON, SECRETARY OF TECHNOLOGY, COMMONWEALTH OF VIRGINIA, RICHMOND, VA *

APPENDIX D - WRITTEN STATEMENT OF THORNE AUCHTER, FORMER ASSISTANT SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, D.C. *

The Subcommittee met, pursuant to call, at 9:00 a.m., in Room 2175, Rayburn House Office Building, Hon. Pete Hoekstra, Chairman of the Subcommittee, presiding.

Present: Representatives Hoekstra, Schaffer, Tancredo, Fletcher, Roemer, Scott, and Ford.

Also Present: Representatives Souder and Owens.

Staff Present: Stephen Settle, Professional Staff Member; Faith Cristol, Professional Staff Member; Rob Borden, Professional Staff Member; Becky Campoverde, Communications Director; Rob Green, Workforce Policy Coordinator; Peter Gunas, Workforce Policy Counsel; Patrick Lyden, Professional Staff Member; Michael Reynard, Media Assistant; Jo-Marie St. Martin, Parliamentary General Counsel; Cindy Van Gogh, Information Technology Manager; and Jonathan DeWitte, Staff Assistant; Mark Zuckerman, Minority General Counsel; Cheryl Johnson, Minority Counsel/Education and Oversight; Michele Varnhagen, Minority Labor Counsel/Coordinator; Peter Rutledge, Minority Senior Legislative Associate/Labor; Brian Compagnone, Minority Staff Assistant/Investigations.

Chairman Hoekstra. A quorum being present, the Subcommittee on Oversight and Investigations, Committee on Education and the Workforce will come to order.

Good morning. This Subcommittee is meeting today to hear testimony in exercise of its capacity to conduct oversight inquiries. Under rule 12 B of our Committee rules, any oral opening statement at this hearing is limited to the Chairman and Ranking Minority Member. This allows us to focus on hearing from the witnesses sooner and helps Members to keep to their schedules. Therefore, if other Members have statements, they can and will be included in the record. I also ask for unanimous consent that the record for this hearing be held open for the next 10 days for the submission of additional statements, information, or testimony relevant to this hearing; without objection so ordered. At this time, I would like to make my opening statement.

We are here today to discuss the events and decisions surrounding an advisory on the application of health and safety standards at home, or telework working situations,

issued by the Occupational Safety and Health Administration on November 15, 1999 and the ever-changing position of OSHA and the Department of Labor. At first glance, this chain of events suggests an agency that is out of touch with the real world and how the workplace of the late 20th century and the 21st century has evolved.

This Subcommittee has been involved in taking a look at telework rather extensively over the last number of years, and it might have been helpful if the Department of Labor had engaged in a dialogue with the Subcommittee as they were formulating their policies and their directives.

Last year we issued a report, "Securing the Future of America's Working Families," that included a section on telework, talking about its evolution and its importance to workers around the country. Last year we had a specific hearing on telework. As a matter of fact we asked the Secretary of Labor, Alexis Herman, to participate in that process more than 2 years ago, and we are disappointed that the Department of Labor never took us up on the offer to take a look at trends in the workplace.

We hope that after the recent developments, perhaps we can get a more collaborative effort with the Department of Labor to take a look at the changing workplace so that rules, regulations, and the law can more accurately reflect the changes and the opportunities in America's workplace today.

What we are here today to talk about specifically is an advisory letter that was signed by one of our witnesses, Mr. Richard Fairfax, who is the director of OSHA's Directorate of Compliance Programs. He responded to a Houston, Texas based company's inquiry about its liability under OSHA rules and regulations if it allowed some of its salespeople to work out of their homes. I should note that the company sent in its inquiry in August 1997 and that it took OSHA more than 2 years to formulate and issue its advisory.

To summarize, the advisory said companies were liable for ensuring that an at-home worker's home office space should meet OSHA standards. It said that OSHA had no plans to begin inspecting home work sites, but that employers should ensure compliance.

What is the potential impact of this advisory? We will hear today that workers could be denied the opportunity to work at home because employers cannot afford to open themselves up to that level of liability. Pollution and congestion could increase; and OSHA, whether directly or indirectly, would have a foot in the door of virtually every home in America.

But an interesting thing happened to this advisory. It was released last November and posted on the Department of Labor's Web site but on January 4, a front-page story in the Washington Post revealed the policy to the general public. As wire services and other media outlets spread the story around the Nation, the reaction was nearly unanimous.

In little more than 24 hours, Labor Secretary Alexis Herman released a statement saying that the advisory letter caused widespread confusion and unintended consequences even though it was intended for, quote/unquote, "one employer." She announced that OSHA was withdrawing the letter to address those concerns. However, she did not address what the underlying policy would be as a result of the withdrawal of the letter.

As most observers of OSHA know, these advisories are made public for the purpose of providing guidance to other employers and are essentially a statement of policy. It is unclear what Secretary Herman meant by withdrawing the letter. Workers and employers alike need a clearer understanding of what the actual policy is today. That is why we are here to at least begin to provide a clearer picture of the rules and regulations governing at-home workers when it comes to OSHA.

In yesterday's newspapers, Mr. Jeffress attempted to clarify the picture. Thank you. What I have seen and read appears to be a step in the right direction, and we are looking forward to hearing more from you today. However, we must also note that another less talked about OSHA advisory from 1993 about telework then called flexi-place, remains on the Department's Web site, at least as of 8:00 this morning. At 9:10 this morning I am not sure, but at 8:00 it was still there. That advisory stated, "Assurance of safe and healthful working conditions for the employee should be a precondition for any home-based work assignment. We reserve judgment at this time as to the extent of OSHA coverage for other conditions found in the home work place." What is the status of this advisory given Mr. Jeffress' purported comments? Furthermore, we have seen and heard other comments that raise questions and need answers. Workers, employers, Congress and OSHA's own investigators need to clearly understand what the policy is.

Finally, I would like to note Secretary Herman's comments calling for a national dialogue on issues such as this. I am encouraged that the Secretary understands that we need to have that dialogue. I understand, Mr. Jeffress, that you indicated to Senator Enzi yesterday or earlier this week that the Senate would be involved in reviewing the directive that you may be working on, and I am hoping that this Committee and this Subcommittee, both the Majority and the Minority, can also be involved in that process.

Mr. Jeffress. Congressman, we welcome whatever comments people would like to provide us as we develop our directive on this issue.

Chairman Hoekstra. Thank you. With that I yield to the Ranking Member, Mr. Roemer.

Mr. Roemer. I thank the Chairman and ask unanimous consent to have my entire statement entered into the record.

Chairman Hoekstra. Without objection.

Mr. Roemer. Thank you, Mr. Chairman.

Mr. Chairman, we had a very productive and helpful hearing a few months ago on the progress and the promise of telecommuting in America. We heard such figures that

up to 20 million Americans are telecommuting, going from their home offices and their neighborhoods out to the workplace, and we think that this trend will probably pick up and increase in America in the future with another twenty million Americans possibly telecommuting. When I heard, as a Democrat, that my own Democratic administration was contemplating going into home offices to inspect these homes, my initial reaction was astonishment followed by profound disagreement.

We do not want to see this policy proceed, and we want to make sure that the testimony today clarifies the fact that, one, we do not agree with that initial policy; and secondly, that the initial and internal clearance mechanisms for reviewing these policies are improved in the future so it doesn't happen again.

So there are two concerns: one on policy and one on internal mechanisms of review. And I think we will hear today from Mr. Jeffress that in both these instances this policy is going to be clarified, that we do not intend to go into the homes, and there is a recognition of the compelling interest of the privacy of the home, especially as it relates to home offices.

So I think we will hear Mr. Jeffress say that loudly and clearly and that the mistake was not just a shot in one foot but a shot in both feet in this policy.

I want to read from the statement that I have, and I am hopeful that this won't take away your recognition and what I hope will be coverage of your statement, Mr. Jeffress, but let me quote from your statement that you are going to get ready to read from, and I was delighted to see this yesterday. "Let me state that we have not inspected offices in homes. We do not inspect offices in homes. We have no intention of inspecting offices in homes. The letter suggested OSHA policy where no such policy exists, and I regret the unintended consequences it has caused. Our internal clearance mechanisms for reviewing such letters failed to raise the issue to the appropriate level."

And so I think we will hear that again and I am delighted to hear that.

Furthermore, I just say that your predecessor, Mr. Deere, and now you, I believe, are taking some very innovative and proactive approaches to turning OSHA around from an organization that has not particularly worked very well in some instances with our business communities throughout the United States, and I want to see it get back on the right track.

There are things that you've done in the voluntary protection program, eliminating quotas, working to cut costs, working in proactive ways to do what is the goal for me and for hopefully people throughout the country is to protect our workers, to try to work with our people to create a safer workplace, where we have dangerous environments in many cases, people working underground and above ground and people getting hurt, but not to do it the old way of 20 and 30 years ago, but to work together to try to reduce costs and protect workers and do it in new ways as we reach this new century and into this new century.

I am looking forward to your testimony. I am looking forward to seeing you get back to doing things in the right way and the new way, and I look forward to hearing again you read what I just read, Mr. Jeffress. I appreciate the many occasions we have had an opportunity to work together.

Chairman Hoekstra. Let me introduce the panel. I think we have a good panel to get a better understanding of exactly what the directive potentially was or the implications were and an overall picture of the whole issue of telework.

Our first witness is Charles Jeffress, who has been mentioned frequently already today. He currently serves as the Assistant Secretary for Occupational Safety and Health at the United States Department of Labor. Mr. Jeffress was sworn into office in November of 1997. He brought with him more than 20 years of experience in labor and workplace issues. Welcome back.

He also has with him today Mr. Richard Fairfax, who is the Director for the Directorate of Compliance within OSHA. The Directorate of Compliance among other duties is responsible for the issuance of advisory opinions or letters of interpretations, one of which is at issue today.

Our second witness is Donald Upson. Mr. Upson serves as the Commonwealth of Virginia's first Secretary of Technology appointed by Governor Jim Gilmore in May of 1998. He holds the unique position of being the only cabinet secretary in the Nation with the responsibility of ensuring effective planning and effective development of the Commonwealth's public sector information technology resources while also working with the private sector to make Virginia a better State for information technology business.

I have to say thank you to the Commonwealth of Virginia. You have been great friends as we have taken a look at emerging work styles, and the whole issue of telework. We have been impressed by the progress that the Commonwealth has made in that area. Thank you very much for being here and we commend you and the Governor. I know that on a couple of occasions we have tried to get the Governor to testify. I know that he is fascinated by this issue and has a very strong interest and an expertise in it. I am hoping that someday we can build on your testimony and hear some of the other things that are going on in the Commonwealth, but thank you very much for being here as well.

Mr. Upson. Thank you, Mr. Chairman.

Chairman Hoekstra. The third witness is Thorne Auchter, former Assistant Secretary for Occupational Safety and Health under President Reagan from January 1981 to 1984. He has served as an executive of a construction firm among other accomplishments. Good to see you and welcome back.

Our fourth witness is Bobbi Kilberg who is the President of the Northern Virginia Technology Council. Among her many accomplishments, Ms. Kilberg has served Presidents Nixon, Ford, and Bush. Her last assignment was Director at the White House Office of Intergovernmental Affairs.

Finally, we have Arthur Sapper who is a partner in the firm of McDermott, Will & Emery, Washington, DC. Mr. Sapper is generally recognized as one of the leading practitioners in occupational safety and health law. Indeed, before going into private practice, Mr. Sapper served as Deputy General Counsel to the Occupational Safety and Health Review Commission, the Federal agency charged with the adjudication of contests to the citations issued by OSHA. Good morning and welcome to you.

Mr. Sapper. Thank you.

Chairman Hoekstra. Before we take the testimony, I ask that you all please stand and be sworn in.

[Witnesses sworn.]

Chairman Hoekstra. Let the record show that each of the witnesses answered in the affirmative. You may be seated. We will begin with Mr. Jeffress.

A couple of changes as we enter the millennium. We have a new high tech way to indicate time. We have a high tech innovation here. We have new lights and a new control mechanism up here. Nobody can understand them yet. This is the first time they are being used. You know that when it is green you have plenty of time. Yellow means that your 5 minutes are running out, and red means that your time is up. We will take a look at how this high tech works. If the high tech doesn't work, we will go back to low tech.

Thank you.

Mr. Jeffress. Thank you, Mr. Chairman. I appreciate your welcome and statement of the issues that has brought us here, and I appreciate Mr. Roemer's very eloquent statement of exactly what our policy is and what it will be. And I am happy to have this opportunity to explain it.

I would like to reiterate at the outset that the Department of Labor strongly supports telecommuting and telework. As Secretary Herman has said, "family-friendly, flexible, and fair work arrangements, including telecommuting can benefit individual employees and their families, employers and society as a whole." OSHA has taken no action, nor will it take any action that will discourage this form of work.

As you know, Mr. Chairman, the purpose of the Occupational Safety and Health Act of 1970 is to assure as far as possible every working man and woman in the nation safe and healthful working conditions. The act applies to employment performed in a workplace in the United States, and under the act every employer has a duty to furnish to each of its employees employment and a place of employment that is free from recognized hazards. There is no provision in the Act that excludes workplaces that are located in a home. However, as I will explain, OSHA holds employers responsible only for activities in home workplaces other than home offices. For example where hazardous materials, equipment or work processes are provided or are required to be used in an employee's home.

As a normal course of business, OSHA provides technical assistance to employers. We responded by letter to more than 1,900 such requests last year. Congress has encouraged us to provide compliance assistance to employers, and you have provided funding for us to do this. Employers have told us that they appreciate the help.

The letters, such as the interpretive letters, are intended to clarify the law in response to an employer's circumstances. They are not intended to establish broadly applicable new policies. However, the letter of November 15, 1999, the subject of this hearing, did lead to confusion about the issue of safety and health relating to work performed at home. To correct that, to provide a certainty to employers about our policy, we are taking this opportunity to clearly state our enforcement policy in a way that more accurately reflects our long-standing practice.

First, we believe that the OSH Act does not apply to an employee's house or furnishings.

Second, OSHA will not hold employers liable for work activities in employees' home offices.

Third, OSHA does not expect employers to inspect home offices, and OSHA does not and will not inspect home offices.

Approximately 20 percent of all employers are required to keep records because of their size or industry classification of work-related injuries or illnesses, and those records must be maintained regardless of where the injury occurs to the employee. So for those employers covered by this provision of the Act, they will continue to be responsible for recording injuries and illnesses, whether the injuries occur in a factory, on the road, in a home office, or elsewhere.

Where work other than office work is performed at home, such as manufacturing operations, employers are responsible for hazardous materials, equipment, or work processes which they provide or require employees to use in their home. OSHA will only conduct inspections of those hazardous workplaces in homes such as home manufacturing when we receive a complaint or referral.

Our current rules are consistent with these principles, and we expect that future rules will be consistent with these principles as well. The bottom line is, as it always has been, that OSHA will respect the privacy of the home, and we expect that employers will do that as well.

The policy I have just outlined is being written in the form of an OSHA directive that is our usual way of communicating OSHA policy to OSHA employees. The Chairman indicated an interest by Members of this Committee to provide information to OSHA for use in developing this policy.

We welcome your comments. We are in the process of doing this. If you have comments in the development of this directive, please send them to us. The directive will be shared with each employee as well as State OSHA programs such as those in Indiana and Michigan. Our directives are normally shared with States, and they will be in this case as well.

The directive will also be available on our Web site, as are all of our directives, and we will direct public attention to this to ensure that the statement of policy is communicated as broadly as possible. All previous letters that we have on this issue, and the Chairman mentioned one of them, will be reviewed. Anything that is in conflict with this will be withdrawn or modified to reflect this policy.

Mr. Roemer asked about how we are reviewing our internal practices to ensure that this will not happen again. We have a way for establishing policy in OSHA. It is our directive system. The folks who wrote this particular letter did not realize that it created new policy. It was not intended to create new policy. It was an overstatement of what our current practice is. I have directed that we reaffirm this directive system, that our employees review everything that they are doing in terms of writing letters such as this, and anything that is a significant expansion over previous letters of interpretation, such as this was, be brought to the policymakers within OSHA to ensure that anything that can be interpreted as policy in the future gets proper review before it is issued.

As Mr. Roemer indicated, I regret the confusion caused by the letter of November 15. Let me state we have not inspected offices in homes. We do not inspect offices in homes. We have no intention of inspecting offices in homes. The letter suggested OSHA policy where no such policy exists. I regret the unintended consequences it caused. Our internal clearance mechanisms for reviewing such letters failed to raise this issue to the appropriate level and I regret that. I am delighted to have this opportunity, Mr. Chairman, before your Committee to set the record straight to clarify OSHA's policy and what our practice has always been, and we will now put it in written form as formal policy.

As you know, Secretary Herman has announced a national dialogue on telecommuting, and the Secretary has had talks with individual labor and business leaders to explore this issue. In addition, at the Secretary's request, the National Economic Council plans to convene a working group to discuss this issue.

I would point out that this Committee in the last 2 years discussed issues of telecommuting and issues of the American workers and future work, and Ed Montgomery representing the Department of Labor testified at your opening hearing, and the Department did engage in that process. On Labor Day last year the Secretary issued a statement on future work that I think extends the kinds of interest and the kinds of conversations that this Committee engaged in.

We recognize at the Department of Labor that the economy and our modern workplace are undergoing revolutionary changes. Telecommunication is changing the way that millions of Americans work and communicate. Over the last years the administration and the Congress have joined together in several initiatives to encourage these changes to benefit the economy, the environment and families.

Clearly, we have an obligation to ensure that OSHA's role reflects these new realities and supports these new arrangements. We look forward to continuing to work with you, Mr. Chairman and Members of the Committee, in a partnership on this and other issues.

WRITTEN STATEMENT OF CHARLES N. JEFFRESS, ASSISTANT SECRETARY FOR OCCUPATIONAL SAFETY AND HEALTH, U.S. DEPARTMENT OF LABOR, WASHINGTON, D.C. – SEE APPENDIX B

Chairman Hoekstra. Thank you; just one question. I believe yesterday Senator Enzi sent you a letter based on your meeting, and I don't know if you had a chance to take a look at that.

Mr. Jeffress. I haven't seen it. We did have a discussion the day before yesterday.

Chairman Hoekstra. You've extended an offer to this Subcommittee to provide input as you develop a draft.

Mr. Jeffress. That is the same offer that I provided to Senator Enzi and Senator Hutchinson.

Chairman Hoekstra. The letter from Senator Enzi, says you stated that OSHA intends to issue a formal directive within 30 days embodying its policy that OSHA will not interfere with home offices. His understanding was that, prior to the issuance of the directive, OSHA will share a draft with Members of the Subcommittee and provide an opportunity for Members to comment on the draft?

Mr. Jeffress. That was not the statement I made, Mr. Chairman. I would welcome whatsoever comment Members from the Senate or the House might have as we develop this. The drafts of internal agency policy are not normally shared for comment outside the agency.

Chairman Hoekstra. So you are saying that Senator Enzi asked us to clarify this with you. You are saying neither this Subcommittee nor the full Committee nor the Senate will have the opportunity to see a draft prior to its issuance, is that correct?

Mr. Jeffress. The directive will incorporate what I have just told you or that portion of the policy. So what you have heard and what you have in writing will be what is in our directive. If you have comments on those principles and policies, I would welcome those comments. Drafts of the directive are not shared outside the agency.

Chairman Hoekstra. So we will not have the opportunity to input on the draft before it comes out?

Mr. Jeffress. The opportunity is right now.

Chairman Hoekstra. But not to take a look at what your directive will be?

Mr. Jeffress. The draft directive itself will not be circulated, but it will say exactly what I have said in testimony here. And if you have comments, I would welcome them.

Mr. Scott. Mr. Chairman, would you yield?

Chairman Hoekstra. Yes.

Mr. Scott. Mr. Jeffress, under the circumstances of this particular situation, and I know that you don't want all of your drafts released, but for this particular situation before it is formally released, what is the problem of letting the Subcommittee see it before it is released?

Mr. Jeffress. Congressman, I will be happy to sit down with you and show you the words used today are the policy.

Mr. Scott. After it is finished and before it is released?

Mr. Jeffress. I will be happy to share it with you before it is released to the public, yes.

Chairman Hoekstra. So we will get it before the public, but it will not be for input.

Mr. Jeffress. And I welcome whatever input you have on this.

Mr. Scott. What happened last time after the comment, the policy changed. So if there are real problems, you will have an opportunity to express that before it is released.

Chairman Hoekstra. I think that is exactly what Senator Enzi was saying; let's not go through this again. Let's get the Congress and the Department of Labor on the same page. Let's review that directive. And what you are saying is that we will get a copy prior to its public release but it will be only for our information, not for input at that point in time?

Mr. Jeffress. Yes, sir.

Mr. Scott. Mr. Chairman.

Chairman Hoekstra. Yes.

Mr. Scott. Again, if there are things in that report that provoke the kind of reaction that the last one did, I am sure that reaction can be communicated and the spectacle that occurred on McNeil Lehrer will occur behind the scenes and not in public.

Mr. Jeffress. I assure you that the Department has heard very clearly the public view on this issue, and I believe the policy laid out today is in fact an appropriate policy, and I believe the Committee will be supportive of the principles here.

Mr. Roemer. I think that is a reasonable compromise. That allows us to both pursue the kinds of meetings that Senator Enzi has done privately and try to get resolutions and clarification of the situation that I think he is working towards. We have taken the public hearing route in which we have heard clarification of their policy and mea culpas on, and I think if we are able to get access to that information and give them feedback, either agreement, disagreement or modifications, then I think that is what we are seeking and I think that is reasonable.

Chairman Hoekstra. I think the reason that Senator Enzi sent us a copy of this letter is I believe he wrote this believing this was the understanding. We now have clarification of exactly what you understood, and it may be different than what Senator Enzi put into this letter. We now have clarity as to what we can expect from the Department as we move forward.

Mr. Scott. Mr. Chairman I think this is just for this situation. We would not expect this to be the normal process.

Chairman Hoekstra. Yes, I understand that. Mr. Upson.

Mr. Upson. Thank you, Mr. Chairman.

First, on behalf of Governor Gilmore, I would like to congratulate you, the Members of this Committee and my friend Congressman Scott who I have the pleasure of being with from time to time in the Commonwealth, on your leadership and the work that you have done on this issue. We are delighted in Virginia that it has moved from somewhat of a policy letter to an issue of confusion and withdrawal, and I think that occurred because of leadership, and the outcry and the pressure that was put on OSHA.

I would like to talk about how we view telecommuting and what we are doing in Virginia and how it relates to this rule and leave you with possibly a suggestion. Two hundred and twenty-five years ago we know this country was created because an old king tried to impose old rules on a new world. The new world said that the individual is important and the individual has dignity, and out of that ruckus the United States of America was created.

The information age, I think we all appreciate the fact that it, too, is a revolution.

What it does at its core is it gives the individual power and the individual choice and the individual control. And I am sure if our forefathers awoke today they would be delighted to see that the United States, the country they created, started the revolution, is leading it, and is empowering individuals on a global scale. But what really does the information economy do? What does it mean when it empowers the individual?

Ten years ago businesses in America were reporting massive layoffs, and the word was the bad corporation. You can't rely on them to protect the employee from cradle to grave in terms of employment.

Now the employee holds all of the cards. The employee in many ways in the information economy can work for whom they want, when they want and, within a spectrum, for what wages they want. And because of the rapid progressions in commuting technologies, now they can work where they want, and where they want sometimes is at home.

I suppose I don't have to tell you that in Northern Virginia we have a bit of a transportation issue. Congressman Scott, I know that you have one. I can't go any further without commending Congressman Wolf who is not here, but I know that he is the Chairman of the Transportation Appropriations Subcommittee. If he had it to do again, he would probably be Foreign Operations because Middle East peace is easier than Northern Virginia's transportation difficulties.

But telecommuting in the information economy is the reason that we have those problems. How can we encourage, as a State government, a telecommuting program? Governor Gilmore has proposed up to $2,000 per employee as an employer tax credit for the employer to install computers or communication links into the home. When this letter came out, it caught us a little by surprise. I was actually on my treadmill watching CNBC, and at that point it wasn't a matter of confusion, it was a direction that we need to go in. Governor Gilmore, if he were here by the way, Mr. Chairman, would love to testify on this. We are in the middle of our 60-day legislative session, but he will take you up on that.

It is not business as usual, and it shouldn't be government as usual. OSHA's letter really reflects an attempt to impose old rules on a new world, and they don't fit any more. I think the message that I would like to leave the Subcommittee with is as you move forward and talk about a dialogue on this issue, we would submit that is the wrong focus. It shouldn't be a dialogue about what should the rules be in a home office. The employee knows how to run the home. The employer and employee work well together in the information economy. There aren't issues of dispute there. I think the focus should be, does the OSHA rule book apply to the information economy and how should that be changed because it isn't working?

So we would ask that your focus expand a little bit and possibly look at the scope of OSHA's impact on the information economy, and if it is not needed then how do you remove or put parameters around its work? To that extent, we note that another Virginian, Congressman Davis, has introduced legislation that would block OSHA's participation from the home office economy by statute.

We think that some statutory parameters are important for a couple of reasons. Our economy, in terms of productivity because of the information age, has gone from less than 1 to 1.5 percent annual growth rates to approaching 5 percent. We have gone from seventh in world productivity to a place where we are number one, and second place is not even close. But these companies can be anywhere. And if we impose an old world regulatory environment on a new economy that can operate without boundaries, these companies won't be here. They will move easily.

I think the advantage that the United States and Virginia has is trying, certainly in Virginia, to create a regulatory climate and a tax climate, build a business climate that is the most attractive to technology companies anywhere in the world. I know that is the focus I think that you are trying to achieve, too. We would just ask that the game change in terms of looking at the national dialogue and not be one of what the home office should look like but should OSHA's rules be applied to the information economy generally.

So with that Mr. Chairman, congratulations on your work and your leadership. We think that it did have an impact on this, and we would love to work with you in staying on top of it because this work is important at the Federal level. Thank you.

WRITTEN STATEMENT OF DONALD W. UPSON, SECRETARY OF TECHNOLOGY, COMMONWEALTH OF VIRGINIA, RICHMOND, VA

SEE APPENDIX C

Chairman Hoekstra. Thank you very much. Mr. Auchter.

Mr. Auchter. Mr. Chairman and Members of the Committee, thank you for the opportunity to join you in this discussion this morning.

When I came to Washington from Jacksonville, Florida, in 1981, I came out of the construction industry with a good working knowledge based on 10 years of experience on the Occupational Safety and Health Act, but the truth is I did not know anything about the Occupational Safety and Health Administration. I didn't know the size of the budget or the organizational chart, and so when I came to town I had to listen to the people within the agency, and I had to listen to the OSHA family. And that OSHA family is the scores of lobbyists, both labor and management oriented, that make their living and their likelihood based on their knowledge and their ability to operate within the Occupational Safety and Health Administration.

We focused on the basics of Occupational Safety and Health Act that I believe is the best piece of regulatory legislation ever created. And if you have to have regulations, this is a good framework because it is very flexible. It creates the agency to reduce injuries and illnesses in the workplace, and it gives the agency about a half dozen basic tools to use. And that is standards, enforcement, training and education, consultation, State programs, and new and innovative programs in safety and health.

During my time at the agency, we focused our management expertise, our management attention, across all six of those areas. So we made changes, policy changes in all of those areas. And what we discovered was that up until that time the agency had not concentrated its working capital, if you will, on the area calling for new and innovative programs for safety and health. And so out of our efforts came voluntary protection programs.

We spent a lot of time working on it. We pulled the constituent groups together. We reviewed various and sundry ideas and produced a format for voluntary protection programs, and I think most would agree it has been pretty successful over the last 15 years or so.

I commend the Chairman for the order of the witnesses because my testimony follows right on the heels of Mr. Upson. It is a changing economy, a dynamic economy, and that is a good thing, and OSHA is in the position to support that. I believe OSHA can come up, using its legislative mandate, with new and innovative programs for safety and health.

Now the focus of this debate today or this discussion today appears to be the issue of home offices. But I would submit to you from my viewpoint that the real issue is care, custody and control, and that is under what circumstance, if any, should OSHA have the ability to go into somebody's house. And I would submit to you it is beyond offices.

I live out on a farm in Virginia. I don't want somebody from the Federal Government dropping in on me for my own good. I believe I have responsibility in my home under existing statute. I have care, custody and control over that location. And even if I am employed by somebody, I don't want that employer coming into my place telling me how I should live and how I should operate.

But OSHA has, under its other areas, not just enforcement, consultation, training and education. OSHA has the ability to gather and disseminate information. It has been doing that successfully since 1971. So it has the ability to do research in this area, to get involved if fireworks are an issue or lead soldering in the technology industry is some sort of issue, it can look at that and it can provide some sort of detailed information to address that issue. But it does not in my view, under any circumstance, including home offices and others, does not need to be going into people's homes.

I thank you for the opportunity to be here today.

WRITTEN STATEMENT OF THORNE AUCHTER, FORMER ASSISTANT SECRETARY OF LABOR, OCCUPATIONAL SAFETY AND HEALTH, WASHINGTON, D.C. – SEE APPENDIX D

Chairman Hoekstra. Thank you. Ms. Kilberg.

Ms. Kilberg. Mr. Chairman, Members of the Committee, thank you for inviting us today.

The Northern Virginia Technology Council is the trade association for the technology industry in Northern Virginia, and we presently have 1,276 member companies. We are the new economy. Telecommuting is an important workforce tool used by our companies for the recruitment and retention of employees and is an essential part of their business operations in the new information technology-based economy. Telecommuting also is an important part of the solution to our regional transportation problems.

OSHA's advisory letter applying its health and safety rules to home offices defied common sense, was an egregious example of overreaching by the Federal Government, served no beneficial purpose, and would have seriously impeded our ability to deal with the workforce shortage in Northern Virginia and the region and with the congestion on our grid-locked roadways. Telecommuting enables our industry to provide working arrangements tailored to the needs of our employees and also enables our companies to help address the employment needs of other regions of Virginia where unemployment remains high and where telecommuting is a viable way to provide good information technology jobs in regions of the Commonwealth where jobs are needed.

The testimony of OSHA's Assistant Secretary Jeffress submitted for the snow-cancelled Senate subcommittee hearing on January 25 is a victory for common sense, and it is a relief to NVTC member companies. In his testimony Mr. Jeffress clearly states that OSHA will not hold employers liable for work activities in employees' home offices, that OSHA does not expect employers to inspect home offices and that OSHA does not and will not inspect home offices.

Mr. Jeffress apologized for the confusion and unintended consequences caused by the advisory letter and conceded that the letter suggested OSHA policy where no such policy exists. He also stated that the internal clearance mechanisms for reviewing such letters failed to raise this issue to the appropriate level.

By these statements OSHA has specifically rescinded its interpretation of health and safety rules for home work-sites. This is a significant improvement over OSHA's action on January 5th in which it only withdrew the November 15th letter, thus leaving employers with continuing uncertainty over both liability and cost and perpetuating the significant chilling effect on telecommuting caused by the initial letter.

We understand that OSHA reserves the right to conduct inspections of hazardous home workplaces such as home manufacturing when it receives a complaint or referral and are confident that the present policymakers in the Department of Labor now do not consider telecommuting to fall within that category. However, we remain concerned that Assistant Secretary Jeffress' statement of OSHA's enforcement policy only lists an employee's house or furnishings as exempt from OSHA and does not specifically exempt an employee's home work-station.

While I can surmise that the Department of Labor will assert that the wording is necessary to retain home manufacturing within its jurisdiction, the Department must understand that the business community needs the certainty of exemption that the inclusion of home work-station terminology would provide.

Frankly, the assurance of senior Department of Labor officials is not sufficient at this juncture. There will be a change of administration in January, 2001, and we do not know what the change will bring. We cannot take the chance that another administration will allow the bureaucracy to run amok again, as Labor Secretary Herman and Mr. Jeffress initially did.

NVTC also is concerned that the failure to specifically list home work-stations as exempt could indicate that OSHA intends to apply its proposed ergonomic standards to home offices. We read with interest the January 27 article by Frank Swoboda in the Washington Post that reported Mr. Jeffress as stating that the exemption principle from his testimony would apply to the ergonomics issue. We hope that means home work stations are removed from the purview of the proposed ergonomic standards, but we cannot be certain that is the case unless home work-stations are specifically included in the list of items in an employee's house to which OSHA does not apply.

The issue of telecommuting and home offices first arose by advisory letter interpretation and is now being resolved by a policy statement, and I heard here today that it will be resolved by directive. NVTC recommends strongly that this issue be permanently resolved by formal rulemaking and perhaps legislation to ensure that the exemption would not be overturned by a different administration.

NVTC also recommends very strongly that this Subcommittee get to the bottom of how such a major regulatory expansion could be implemented without the apparent knowledge of the senior appointed officials responsible for setting Department of Labor policy and whether other surprises are awaiting the business community within OSHA or other agencies in the Department.

In that regard, I draw your attention to a December, 1999, advisory letter from the Employment Standards Administration's Wage and Hour Division, and I stress that Mr. Jeffress is not responsible for it, that requires the inclusion of stock options as a component of an employee's base pay for the purpose of determining overtime for nonprofessional employees who are eligible for overtime compensation.

This advisory has the potential to seriously hinder the growth of technology companies who, in order to put more capital into development, often offer all their employees the chance to share in future success through stock options in lieu of higher wages. This is particularly critical for young, emerging technology companies who simply cannot pay high enough wages to attract the personnel they need unless they can utilize stock options. The inclusion of the value of those options in base pay for overtime would negate the ability of those companies to offer stock options. NVTC would be most interested in learning what the clearance procedure was for the release of that advisory letter.

In conclusion, I would like to tell you about NVTC's telecommuting practices. We have 17 employees at NVTC, and five of them are here with us today. Seven of those employees telecommute from home at least 1 day per week, and virtually all of us telecommute during the kind of weather emergencies we have faced over the past few days. Of NVTC's seven regular telecommuters, four are mothers with children ranging in ages from 1 year to 14 years of age, and one of the four mothers is a single parent. Our telecommuters work at home part of the time for a number of reasons, including spending time with their children through flexible work hours at home, saving money on child care and transportation costs, avoiding difficult and time-consuming commutes, and producing work products without the constant interruptions found in the office. As their employer, I am very pleased with the results of telecommuting. I have found that telecommuting is an important tool for the recruiting and retention of employees, that it increases morale in our organization, that it reduces sick days, and that it increases productivity.

I want to continue telecommuting at NVTC. If the Labor Department's action had been limited to the withdrawal of the November 15 letter, I would not have been able to retain our practice due to the continued uncertainty about liability and cost.

Mr. Jeffress' testimony on OSHA's enforcement policy does allow me to keep our telecommuting in tact for the present time, but my long-term decision will depend on the codification of this policy through rulemaking or legislation.

Four of NVTC's telecommuters are in attendance today: Christine Dallivokas, Vice President of Operations; Susan Baker, Director of Workforce Development; Tina Gibbs, Production and Design Manager; and Sandra Henderson, Member Services. I would like them to stand, and they join me in thanking you for holding this hearing today.

WRITTEN STATEMENT OF BOBBI KILBERG, PRESIDENT, NORTHERN VIRGINIA TECHNOLOGY COUNCIL, MC LEAN, VA – SEE APPENDIX E

Chairman Hoekstra. Thank you very much. Thank you for being here.

I know that you were willing to testify, but I think we are probably going to get more into some of the legal stuff, but we are very interested in continuing to understand the benefits and the process for telework.

Ms. Kilberg, thank you also for bringing up the issue of stock options as a factor for calculating overtime pay. I think that for my friends at the Labor Department, it will be the next thing that is on our agenda to take a look at. It has not really been a good news start to the new year, considering the new economy, with the directives that have been coming out from the Labor Department as it relates to the home office, as it relates to the stock options and these types of things. That will be another area that either in informal meetings or in public hearings we will try to get an understanding of exactly what is going on in the Labor Department that is driving these directives that, in many ways, are totally contrary to where the economy is going.

So it is on our radar screen.

Ms. Kilberg. Thank you.

Chairman Hoekstra. Thank you. Mr. Sapper.

Mr. Sapper. Thank you, Mr. Chairman and Members of the Committee. I am Art Sapper, partner in the OSHA practice group of the law firm of McDermott, Will & Emery. I am honored to have been asked to testify before the Committee this morning.

In light of Mr. Jeffress's recent action, I will focus this morning on a problem much more important in the long run than OSHA's home-office policy, and that is the manner in which OSHA adopted it. The Committee should ask itself, why are we here today? Why are employers so upset at a mere interpretation letter? It is not an act of Congress. It is not a regulation that went through notice and comment rulemaking. Why the uproar? Because such interpretation letters are given great weight by the courts, that is why.

The courts uphold such letters if they are merely reasonable, and that is a very elastic word. You can fit a lot of sense into it. And the court will uphold it if it is reasonable, even if the court thinks that the interpretation is wrong, or even if the court thinks that the employer's interpretation is better. OSHA gets the benefit of the interpretive doubt, not the accused employer; and this gives OSHA tremendous power. That is why OSHA's lawyers allowed this interpretation letter to go through. They knew it would have a good chance of standing up in court.

Now, I am not here this morning to tell you that there is something wrong with OSHA issuing interpretation letters. That is not my point. They are helpful; they are useful, indeed. What is wrong is that the success of judicial deference to OSHA interpretation letters encourages OSHA to make policy in interpretation letters, rather than make policy where they are supposed to be making it, in open, accountable public rulemaking.

The strange thing is that there is incontrovertible evidence that the Congress of the United States intended OSHA to not get this kind of inappropriate judicial defense from the deference from the court, to not create the problem that we have here today. Congress specifically foresaw this problem. It did not pass the Occupational Safety and Health Act in 1970 until a key compromise was struck, and that key compromise was founded on the express understanding that courts would interpret OSHA's standards and here I quote, "without regard for OSHA's interpretation."

So why then is OSHA acting as if that legislative history does not exist? Because the Supreme Court in 1991 held that I am wrong; and the reason it did is, unbelievably, because the employer's attorney in that case, if you read his brief, did not cite the legislative history that I just brought to the Committee's attention, and the Court, therefore, did not discuss it. The Court was unaware that OSHA was not supposed to get the benefit of the interpretive, and that is why the workings of the Occupational Safety and Health Act have been so distorted as to bring us all here this morning.

Now, the effects of this Supreme Court decision on the OSHA Act have been corrosive. It undermines the rulemaking process. It makes it unnecessary. Instead of open policymaking, OSHA is encouraged to resolve major issues in secretly written interpretation letters, and in this kind of back-door rulemaking OSHA avoids compliance with Congressional requirements. For example, there is a requirement that before OSHA adopts a new rule, it makes sure that it is feasible. OSHA can go around that through just adopting interpretations that expand its standards.

Worst of all, the decision has the perverse effect of encouraging OSHA to write ambiguities into its standards. Why? Because if there is an ambiguity, then there is something to interpret. If there is something to interpret, OSHA can prevail. So that means that OSHA's litigation position is strengthened by the ambiguities it writes into its standards. That is evidently why, if you take a look at the recently proposed ergonomic standard, you will see that core, key provisions keep using the word "reasonable." Now, that is not only the lawyer's friend, the word "reasonable," but it is also OSHA's friend. They can make policy through exploiting the ambiguities in that word.

It is time for Congress to rectify the situation and to legislatively overrule this unfortunate decision; and that is the cure for the problem that has brought us here today. Congress should state that if an OSHA standard or statutory provision is ambiguous, the benefit of the doubt goes to the employer whom OSHA is accusing of breaking the law, not to OSHA.

Now, if OSHA believes that further employee protections are necessary, and of course it could easily reach that decision, it should provide them through the way that Congress provided: rulemaking, not interpretation letters. That is what rulemaking is for. And for these reasons I must respectfully suggest that language be placed in the OSHA Act stating essentially that ambiguities in standards or the Act shall be resolved in favor of the person against whom a sanction may be imposed. I thank the Committee for its courtesy.

WRITTEN STATEMENT OF ARTHUR G. SAPPER, ESQ., OSHA PRACTICE GROUP, MCDERMOTT, WILL & EMERY, WASHINGTON, D.C.

SEE APPENDIX F

Chairman Hoekstra. Thank you very much. I thank the panel.

I think we are going to go directly after some of the issues that the panel has raised in establishing and trying to get clarity as to exactly where the Labor Department is. I know that there are questions within the panel as to how we got to this process and those types of things.

Mr. Jeffress, let me begin with you. What does an enforcement directive mean? This is the step that you are proposing that you will issue within 30 days. Correct?

Mr. Jeffress. Yes, sir. Directives are the means by which OSHA sets policy for itself, the means by which we communicate policy to our employees, to the people that enforce and interpret the OSHA Act, and it is those directives and the policies stated in those directives that are binding upon our employees in the way we enforce the Act.

Chairman Hoekstra. And there is a significant difference, Mr. Sapper, between an enforcement directive and rulemaking?

Mr. Sapper. I am afraid there is, Mr. Chairman. An enforcement directive can be adopted privately, solely within OSHA without any consultation with affected employers or even the Congress, whereas a rule that is adopted through rulemaking is published for public comment in the Federal Register, and it has to be justified by facts. That is a big difference.

Chairman Hoekstra. The directives, enforcement directives, can then also be changed relatively quickly?

Mr. Sapper. Yes, they can, although there are internal procedures within OSHA; but yes, they can be changed far more quickly than a rule adopted through the rulemaking process. That is correct.

Chairman Hoekstra. Mr. Jeffress, I am trying to get clarity to some of the language. I think there have been different comments that have been reported either in the press or inside OSHA. Will the ergonomic standard apply to telework, home-offices, and those types of things?

Mr. Jeffress. The statement today and the policy that we have stated clearly is that OSHA will not hold employers accountable for activities in home-offices. That applies to all current standards that we have; it will apply to all future standards that we have. So we don't have an ergonomic standard at present; and in the rulemaking that is under way this year, I am sure this issue will be addressed. I can assure you, Mr. Chairman, that the result of that ergonomics rulemaking will be consistent with this policy here, that the employer will not be held accountable for activities in home offices.

Chairman Hoekstra. Thank you.

In your testimony you say that we believe that the OSHA Act does not apply to an employee's house or furnishings. I think in the original letter of directive it said that if there was a home-office located in the basement, the employer would be responsible for the safety of the stairs. I understand that the employee's house now would no longer be covered. Correct?

Mr. Jeffress. That letter overstated our practice, Mr. Chairman. I hope this policy clarifies that.

Chairman Hoekstra. It then goes on to say employee's furnishings. So I assume if they trip over a dining room table or something like that, the employer is not covered.

Mr. Jeffress. You are accurate.

Chairman Hoekstra. What if an employer provides a work-station to an employee for their home? I mean I think a number of employers have said, you know, you are going to be doing telecommuting; you are going to have a computer at home, you may have a phone and some other equipment, and rather than putting it, for my colleague here, on an old prison industry desk that has no adjustability or anything like that, you want to put it on a quality piece of ergonomic furniture. Therefore, we are going to provide you with an ergonomic work-station and an ergonomic seat, and an ergonomic chair. That is no longer the employee's furnishing, it is the employer's furnishings. Is that covered?

Mr. Jeffress. By all means we want to encourage employers to provide those ergonomically-correct work-stations and chairs, Mr. Chairman, which is why we said very specifically, broader than simply work-stations, we will not hold employers accountable for activities in home offices, so that would include working at a work- station in a home office.

Chairman Hoekstra. Okay. Thank you. "Will not inspect" is what you said in your testimony.

Mr. Jeffress. Yes, sir.

Chairman Hoekstra. Does that mean never, under any circumstances for telecommuting, telework?

Mr. Jeffress. That is correct. For home offices where some of the work is done in an office anywhere else, but for home offices we will not inspect. We do reserve the right to inspect where there is manufacturing going on, where there are hazardous activities going on. The various lead exposures that we found in other places, the fireworks explosions. Where there is manufacturing going on at home, we are not excluding homes; but with respect to home offices, we will not inspect.

Chairman Hoekstra. Mr. Fairfax, your office is responsible for the issue of these enforcement directives; is that correct?

Mr. Fairfax. Yes, sir, that is correct.

Chairman Hoekstra. All right. I would like to just have you take a look at an e-mail that was sent out. Could somebody please distribute the e-mails and bring one to Mr. Fairfax.

Mr. Fairfax, do you have a copy of that now?

Mr. Fairfax. Yes, sir, I do.

Chairman Hoekstra. Is this an e-mail that you sent?

Mr. Fairfax. Pardon?

Chairman Hoekstra. Is this an e-mail that you sent?

Mr. Fairfax. Yes, it is.

Chairman Hoekstra. This is where I think we get a little concerned as to exactly where the Department is going. If I could read the e-mail from Mr. Fairfax. Who is it to?

Mr. Fairfax. It is to my staff and the Directorate of Compliance Programs.

Chairman Hoekstra. Okay. "I am sure most of you by now have seen or heard about the firestorm created over our interpretation of employer responsibilities…"

Mr. Scott. Mr. Chairman, do we have some more copies?

Chairman Hoekstra. Oh, absolutely.

Does everybody have a copy who wants one? Maybe not everybody in the audience, but we are getting some extra copies made, and we will distribute them.

"I am sure most of you by now have seen or heard about the firestorm created over our interpretation of employer responsibilities over employees working at home. I want to point out that while this has caused quite a sensation, this sort of coverage can happen with most anything we do in our jobs here in compliance programs. I also want to point out that the interpretation was and is correct from a worker safety and health perspective and according to the OSHA Act. Those of you who worked on the interp were doing your jobs correctly and professionally, no one has found fault in what was said in our letter. The issues being raised are political and not safety and health related. Both Charles Jeffress and Davis Layne asked me to stress to DCP their support and faith in us and our work."

Could you explain to me what you mean by "the issues are political and not safety and health related"?

Mr. Fairfax. Yes. Well, first I think I should explain, this e-mail was sent out I think the day after the story broke in the Washington Post, and then the firestorm was all the subsequent publicity and news surrounding the event.

My staff was extremely upset and concerned. I have a large staff of dedicated safety and health professionals. They do their job well. One of the main things they do in their job is providing this compliance assistance to employers. I felt as a manager that they were suffering a lot of morale problems, they were worried about what they do, and had they lost faith in what they did? Had our front office lost faith in what they did. The purpose of this e-mail was to boost their morale and show them my support. I obviously used some incorrect terms in here, but I also wanted to assure them that our front office was not questioning how they do their job and what they do.

As far as the word "political," again obviously in hindsight that was the wrong word to use, but I was trying to explain to them that this had been taken out of the realm of what they do. They deal with safety and health issues; they try to provide assistance to employers. They were not creating policy. We knew we were not creating policy, and it appeared that they were and our letter caused a lot of confusion, and I was just trying to show them that I was supportive of them and our front office was supportive of them.

Chairman Hoekstra. You state, "Charles Jeffress and Davis Layne asked me to stress to DCP their support and faith in us for our work."

Had you and Mr. Jeffress talked about this policy and indicated that this is what the Labor Department wanted to do, this policy, this directive?

Mr. Fairfax. Yes, sir. Our policy has always been not to enforce in a home office, and I have been a part of the discussions in developing this, you know, the compliance directive that we are starting to work on to formally state what has always been our policy.

Chairman Hoekstra. But the letter that you issued goes way beyond. I mean, if you are saying your policy has always been not to enforce OSHA at home, the directive or the letter that you sent out in response to the inquiry left a very different impression.

Mr. Fairfax. It clearly did, yes. The letter was a response to one employer who raised a number of questions. As Mr. Jeffress has stated, we clearly overstated our position. It left a lot of confusion out there. It left confusion certainly whether or not OSHA would conduct inspections in the home. In fact, we have never conducted an inspection in the home office. The letter was withdrawn, and I certainly agree that that was the right thing to do.

Chairman Hoekstra. If it has always been OSHA's position that the OSHA Act did not apply to the home, what is the internal process that led to the compliance letter being issued and sent 180 degrees from official policy? If it is so clear that it was understood in the Department that OSHA never applied to the home, and then you send out a letter that is so specific as to say, if you are walking down the stairs, the employer is responsible for the stairs.

What is the review process that says, we have a clear policy in place, but then you send out a letter that is 180 degrees different than what you are saying is a clearly understood policy?

Mr. Fairfax. Well, as Mr. Jeffress said, the clearance process broke down and is, I assure you, being fixed.

When a letter comes in, it comes to me and I sign it to the direct office to work on and they develop a response. It goes through a number of technical people for review; it goes to our solicitor's office for review. We look at previous interpretations, and we develop a response based on the input we get from other staff members and the solicitor's office. In this case, we completely acknowledge that it overstated it and it should not have gone out; it should have been raised to a higher level, but that process broke down.

Again, as Mr. Jeffress said, we have put steps in place to fix that.

Mr. Jeffress. Mr. Chairman, can I supplement that answer?

Chairman Hoekstra. Yes.

Mr. Jeffress. I think one thing that is important here, as I said earlier, OSHA might continue to apply to home work places where manufacturing is going on; there is nothing in the Act that exempts the home per se. In overstating our policy here, the question about the home application is perhaps what these folks were looking at. But it is important to recognize that we did overstate it, we created confusion, and as well we withdrew the letter. Our practice in terms of home offices has always been not to go into home offices. We have never inspected a home office to hold employers accountable for the telecommuting types of arrangements and the home office types of arrangements. This letter brings our written policy now in line with what our practice has always been.

Chairman Hoekstra. I think this is where our concern comes in. I mean the e-mail, however early written or, as a morale booster, raises the concern that that is really where career Labor Department believes we need to be going; that the interpretation was and is correct from a health and safety perspective, and according to the OSHA Act, okay. It says this is exactly what it is, and that the issues are political rather than actually policy or legal.

Mr. Jeffress, also in your statement you say, the OSHA Act applies to employment performed in a workplace in the United States. Furthermore, every employer has a duty to furnish each of its employees "employment in a place of employment which is free from recognized hazards."

This is why I am concerned about only doing a directive rather than going through a rulemaking process. Are you going to do rulemaking that gets more public input and nails this down? Because I mean obviously, we have gone through a process where there was a question, and then it didn't apply, and then it did. I don't want to be going through this again in 12 months. There are too many people who are investing time and careers into getting into this direction with there still being a question here in Washington. I think that I would be encouraged if you said not only are we going to do a directive, but we are going to go through a rulemaking process and we will have a rule done relatively quickly that puts this much more in concrete and is not going to change.

Mr. Jeffress. Congressman, again, the practice has been we have never held employers accountable for activities in home offices. The only perception here was the confusion created by the letter. We have withdrawn that letter and are making the policy clear. But there has not been anyone held accountable. We don't have a problem out there where people have been fined or cited. The certainty that the employers need can look either at OSHA past practice or the very clear policy we are stating now.

In terms of rulemaking, we are not here compelling behavior by an employer, and we are not compelling people to do something here. We are not restricting someone's rights here. We are not doing the kinds of things that the Administrative Procedures Act was designed to apply to. We are in fact simply stating what our practice has always been. There is not a problem out there with OSHA holding employers accountable. We have never done it; we are not doing it now. So clarifying the policy is important, and we have withdrawn the letter, and we are clarifying that policy. It does not appear to me that there is a problem out there that necessitates legislation or formal rulemaking to address it.

Chairman Hoekstra. Just a couple of more questions, Tim.

Have you withdrawn the 10-7-93 letter on the mission and jurisdiction of OSHA which states, "we reserve judgment at this time as to the extent of OSHA coverage for other conditions found in the home work place"?

Mr. Jeffress. No. That very letter, as you say, says we reserve judgment. We are now making a very clear statement. We will review that letter, and we will review all of the other materials that OSHA has issued to make sure that they are consistent with this policy. Those that are inconsistent will be modified or withdrawn.

Chairman Hoekstra. Have you sent clarifying e-mails and memoranda or whatever form you communicate with your employees around the country clarifying exactly what the Labor Department's position is on telecommuting?

Mr. Jeffress. We have had very clear conversations both within Washington and regional offices, and a written communication that will be this directive that will be very clear about our policy.

Chairman Hoekstra. Before I yield to Mr. Roemer, I would say that I am disappointed in the Labor Department's submission of documents to our request. You withheld over 200 pages of documents per our request a few weeks ago, necessitating finally an agreement that our staff could go there last night with a representative of the minority staff at 5 o'clock last night to read the documents. I have no understanding what legal basis you have for withholding documents dealing with rulemaking. I am also questioning whether you completely submitted the documents that we had requested. We asked for e-mails and those types of things regarding this rulemaking. This e-mail did not come from your submission to us. We can't find it in any of the documents that you sent to us. This was sent to us by someone else within the Labor Department.

Mr. Jeffress. The conversations I think our staff had with your staff, Congressman, about the submission of documents was specifically directed to the documents leading up to the issuance of the November 15 letter, and that is what was provided both to this Committee and to Senator Enzi's Committee.

The e-mail that you were referring to was sent out in January some months after that. So the conversations about the documents I think were limited to the November 15 time period. But by all means, we are not seeking to withhold anything from you. Any discussions will continue. If there are documents that you are concerned about, we will continue to discuss them with you.

Chairman Hoekstra. Actually, we asked for all documents relating to this decision and process-making up until January 6. The e-mail, that was our letter sent out on January 7. The e-mail was sent out on January 5.

I yield to Mr. Roemer.

Mr. Roemer. I guess I wish today that we could get bipartisan agreement on, one, that OSHA doesn't belong involved in the home office inspection business and hopefully, Congress doesn't belong being involved in this whole 6-year-old boy, Elian Gonzalez, issue; but if we could get bipartisan agreement on that.

Chairman Hoekstra. We are going to have a good year.

Mr. Roemer. Let the boy be with his father.

We have agreement on this that we should make sure that OSHA doesn't get into the home offices.

Let me be very clear on this, Mr. Jeffress, because I think your testimony was right on the point. You do not, you have not, and you will not get involved in inspecting home offices, yes or no.

Mr. Jeffress. Yes, sir, that is correct.

Mr. Roemer. That is the clarification I am looking for.

Mr. Jeffress. Let me add, after the last 3 weeks, I can't imagine any other administration ever doing it either.

Mr. Roemer. Well, we hope this mistake is a lesson on making sure that we don't go down this road again.

Mr. Fairfax, with respect to your e-mail, let me know if this is the right sequence of events. On January the 4th, the Post, Mr. Swoboda, broke the story that this letter on home inspections was being circulated within the Department of Labor; is that correct?

Mr. Fairfax. That is correct.

Mr. Roemer. Your letter, your e-mail then was on January 5th to your employees; is that correct?

Mr. Fairfax. That is correct also.

Mr. Roemer. January 6th then the Post followed up their initial story with Secretary Herman's retraction saying this was a mistake and this was not going to be promulgated policy; is that correct?

Mr. Fairfax. Yes.

Mr. Roemer. Mr. Auchter, you say in your statement quote, "The employer's responsibility extends to training, education and providing of proper tools and equipment."

Do you think that this responsibility is universally accepted by other employers?

Mr. Auchter. Well, universally is a pretty broad definition. I think it is universally recognized. I couldn't speak for universal employers, I suppose.

Mr. Roemer. Generally practiced?

Mr. Auchter. I think generally practiced, sure, yes.

Mr. Roemer. And you think this is very positive and that this should be the role that the employers participate in as well?

Mr. Auchter. I think over the last 20 years or so, Mr. Roemer, that the role, the integral role of safety and health issues in the workplace is broadly accepted, recognized by employers, employees, government, et cetera.

Mr. Roemer. Thank you. I am not going to spend a lot of time on this, but I would like to bring up a question that Ms. Kilberg brought up in her testimony that is not really related to today's issue, which is the whole idea of stock options. Do you think that this is a good idea for technology companies; is that correct?

Ms. Kilberg. I think it is crucial, especially for our smaller emerging companies where, as I said before, the only way they can possibly compete for employees is by giving their employees a stake in the future, and an ability to get these people to come to work by saying hey, you know, you come to work here, there is great possibilities. They often include that down to the nonexempt overtime employees, i.e., your nonprofessionals. You take that away, you are making it impossible for them to use it, you are going to have a serious detrimental effect. I point out, you pay somebody $10, $11 an hour to be a nonprofessional employee, boy, I would really want my overtime because I would be making $1,500 an hour overtime, I mean literally. It would just totally skew.

Mr. Roemer. So it is good for morale, it is good for recruiting, it is good for retention?

Ms. Kilberg. It is necessary for all of those.

Mr. Roemer. So why should we not do this and take it to more people and take it outside the technology area as well too? Why shouldn't we extend this to more employees in manufacturing areas?

Ms. Kilberg. I can't really address that. I know my industry and I know what is needed there to attract the employees for the new economy, which is going to help everyone in the economy by raising our revenues, et cetera.

Mr. Roemer. But doesn't this help everyone in the manufacturing area, the Fortune 500 company to have more of the working people, overtime people, secretaries that are becoming rich in the high-tech companies? Why shouldn't that be extended to all of our workers?

Ms. Kilberg. That is up to the industry to decide.

Mr. Roemer. But I think it is a good idea.

Ms. Kilberg. I think it is a critical idea, yes. All I am saying is you are going to squash it and throw it out if you are making that be included in the base pay calculation for overtime.

Mr. Roemer. I am not talking about that.

Ms. Kilberg. Okay.

Mr. Roemer. I think you and I agree on that; I am just trying to get your ideas and your general embracing of this idea as it applies. If it is good for workers in the high-tech community, why shouldn't the business community and management be sharing this more with working people in the manufacturing sector?

Ms. Kilberg. It is great for the technology community. Our individual companies make individual decisions. I assume CEOs in any other sector of the economy will make those decisions that are good for their employees and for the growth of their businesses.

Mr. Roemer. Thank you, Mr. Chairman.

Chairman Hoekstra. Mr. Hilleary.

Mr. Hilleary. Thank you, Mr. Chairman. I would just like to say that this panel has been fascinating. Mr. Chairman, you have done a good job of putting this together, and the staff I think has done an excellent job.

With that, I have a lot of questions I would like to ask in very little time. Just to comment first, though, I think that I kind of agree with Mr. Sapper's comments that the real issue here is how we got here, and I think that part of this is probably also what Mr. Upson said, it is the Old World and the old way of doing things. Having to deal with the new rulemaking in the new workplace and Government entities are not known for their flexibility and nimbleness whether it is OSHA, whether it is the Congress, whether it is anybody. It is the nature of the beast, I think. I think that is part of the problem.

I have to tell you that I think part of this problem, too, is the nature of bureaucracy in general. We who are in Congress live out in the real world and we refer to the nameless bureaucrat, you know, as someone almost in subhuman terms. I mean we don't really mean to, but it is the way it comes across; and that is unfair, because the world that you work in is very real to you and you all are very real people, and you have a very real job to do. So that is very unfair.

But I do think that this issue points out the problem that we in the real world, which is the biggest part of the world outside of the Beltway of course, do see with things like this. I think part of this is bureaucratic overreach, because the world you live in simply is not the world of having to deal with construction in Jacksonville, Florida, or deal with my business, textiles in Spring City, Tennessee.

Kind of from a compassionate standpoint I felt sorry for you, Mr. Fairfax, when this e-mail went around because I felt that you got caught with your bureaucratic pants down when it came around. But it does indicate to me that maybe, at least a portion of this bureaucratic overreach is a part of this problem.

My question is, I would like for Mr. Jeffress to comment on Mr. Sapper's comments and his interpretation of Supreme Court rulings and the like, that judicial deference does seem to always go to OSHA as opposed to the employer.

Do you agree with that legal interpretation as things go? And, if you do agree, do you agree that this letter could be interpreted as an alternative form of rulemaking? Simply because, if I were a bureaucrat at OSHA, if I were a permanent employee at OSHA, I would detest having to go through these public rulemakings, because it is a pain in the rear, and we all want to go the path of least resistance in our lives. I would think that if this interpretation is correct, very possibly that you all would be able to make rules through letters of intent and the like.

I would love for you to comment on his comments and my question.

Mr. Jeffress. All right. Congressman, I do not believe that interpretive letters can expand the reach of the standards, which is what Mr. Sapper was suggesting. There is a disclaimer on our interpretive letters that point out that these letters are not a substitute for the standards. OSHA cannot cite an employer for failing to comply with an interpretive letter. These are not documents that we cite people for failing to observe. We can only cite people for failing to comply with standards themselves or with the law.

So the interpretive letters do not replace standards; they cannot be used to set new policy. When it became clear that people were interpreting this one as new policy, we withdrew it, because it was not intended to set policy.

Mr. Hilleary. Do you agree that with judicial deference, the tide goes to OSHA as opposed to the employer?

Mr. Jeffress. The courts clearly have said where there is a question of what an agency meant by its standard, then the court will give deference to what the agency says it meant by the standard.

Mr. Hilleary. Do you believe that it is in our position to the original intent of the act?

Mr. Jeffress. The intent of the act is to protect employees.

Mr. Hilleary. In this particular area.

Mr. Jeffress. I understand. But the intent of the act is to protect employees, and when it comes down to interpreting the standards, interpreting the Act, Mr. Sapper suggested that it should be interpreted by the benefit of the employers.

Mr. Hilleary. He suggested that was the intent of Congress and read a quote from the original.

Mr. Jeffress. Right. And I read a quote from the purpose of the Act, which is very clearly to protect employees. And in looking at the interpretations of the Act, I think the courts look at the purpose of the Act, look at its intent to protect employees, and that is the guiding principle of the OSHA Act. It is to protect employees, not necessarily to give deference to the agency or employers. But it is important that, in terms of the deference that the court does give to the Department, in terms of what did you mean when you said this, the agency says this is what it meant. That has to be reasonable. There is a reasonable person test required.

Mr. Hilleary. Could I ask Mr. Sapper to comment on his comments?

Mr. Sapper. I would be honored to, sir.

First of all, as a practical matter, yes, Mr. Jeffress is right, you cannot be cited for violating an interpretation letter, but you will be prosecuted for doing so. So as a practical matter, he is wrong. As a theoretical matter, he is right.

Mr. Jeffress says that the agency does not use interpretation letters to make policy. Well, that is very much in the eye of the beholder. I suspect that if you are cited as an employer for violating an OSHA policy that is evinced somewhere in an interpretation letter, you won't know the difference.

Third, I happen to notice that Mr. Jeffress does not exactly come to grips with the legislative history of the statute. He doesn't say it is not there. He just says, well, there is a broader purpose; and there is. There is a broader purpose. But on this issue it was a clear Congressional understanding. He does not deny it.

As to the court's behavior, Mr. Jeffress makes a good point, and that is that the court should give weight to OSHA's interpretations of its own standards. After all, they wrote it. That is a good point. But that is not what the courts are doing. They are not just giving as much weight as the drafters' views are entitled to. They are doing much more than that. They are saying OSHA wins as long as its views are reasonable, and that goes far beyond weight. That is controlling effect.

It is hard to, in oral testimony, give the exact flavor of how this occurs, sir, but let me put it like this. If there was a weight criterion and that is what Mr. Jeffress was advocating, I wouldn't be speaking here on this point today, because that would be entirely appropriate. The courts are going far beyond that. They are saying that, frankly, they don't care about the amount of weight. All they are saying is, if there is a doubt. After we read the text of the statute and we read the regulatory history of the statute and we think about all of the rules of construction, if there is still a doubt in our minds, OSHA wins.

It does not matter if OSHA brought to the court let's say a statement by the drafter of the standard. That is not necessary. All that OSHA needs to bring to court, and that is the thing that actually happened in that Supreme Court case, is OSHA's citation. They don't have to prove what the drafter of the standard actually meant. They don't have to bring him into court or anything. It goes far beyond that.

If Mr. Jeffress is happy with just the courts giving weight, then I would suggest that this Committee draft legislation incorporating the thought that Mr. Jeffress expressed.

Mr. Hilleary. Okay. I am out of time. I thank you for your answers, both of you.

Mr. Chairman, great hearing. Thank you very much.

Chairman Hoekstra. Thank you. Mr. Scott.

Mr. Scott. Thank you, Mr. Chairman.

Mr. Jeffress, you have differentiated the situations involving dangerous chemicals, manufacturing of fireworks and things like that occurring in the home and the work-station computer-type situation. You have made a differentiation. Is there any statutory authority for that differentiation if the employer actually controls the site or does the differentiation occur just out of the application of common sense?

Mr. Jeffress. There is a differentiation based on employer control, Congressman. Any action by OSHA to hold an employer accountable for a condition has to be premised on employer knowledge or employer should have known of the condition.

Mr. Scott. Even if the employer has control over the work site, provided the equipment and has dictated the situation, controls the situation, you do not intend to go into people's homes to inspect a computer work station, is that right?

Mr. Jeffress. That is correct.

Mr. Scott. And that differentiation occurs because of an application of common sense, not because of the technicalities in the statute?

Mr. Jeffress. That has been our practice, that as you say is a common-sense practice, and we have never been there and don't intend to go there.

Mr. Scott. Okay. Now that common sense has prevailed, let's get to the purpose of OSHA a little bit.

What injuries, just generally, are occurring at work sites and what violations of OSHA could actually lead to injuries that could have been prevented if OSHA had been better enforced? Where should this Committee be actually focusing its attention in reducing injuries with the use of OSHA?

Mr. Jeffress. Mr. Chairman, there are 6,000 American workers killed on the job every year. Seventeen will die today, during this day of January 28th. It is important for OSHA to focus on where those are occurring. The machines that are not guarded, the falls that people are not protected from, the ditches that people are working in are killing people every day. That is where OSHA needs to be focused.

What we have done to get there is to identify those employers where the highest rates of injuries and illnesses are occurring and focus our resources there. If you look at where OSHA spends its time, our time is spent in high-hazard work places, in high-hazard factories, in high-hazard nursing homes, places where real people are being hurt, are losing time from the job.

Mr. Scott. Has it made any difference?

Mr. Jeffress. We have made a significant difference, Mr. Chairman. Mr. Congressman. Sorry, Mr. Hoekstra.

Mr. Scott. Well, you directed your comments to the Chairman.

Mr. Jeffress. One thing I am proud of is during the last 7 years the injury and illness rate in this country has come down each year. Today, the injury and illness rate among workers in the United States is at its lowest level ever, attributed to what employers and employees have done over the past 7 years. If we look at what has happened since OSHA was enacted in the early 1970s, the fatality rate has been cut in half. I believe OSHA has played a part in helping employers and employees focus on these hazards and in reducing those injury and illness and fatality rates.

Mr. Scott. One of the OSHA programs involves one of the local shipyards, Newport News Shipbuilding, that is involved in the Star program.

Mr. Jeffress. Yes.

Mr. Scott. Has that reduced injuries?

Mr. Jeffress. Yes. It is one of the areas that we are focusing on, one of our five high hazard injuries that we are trying to reduce illnesses and injuries in. In Newport News the shipyard there is a Star program in that they have one of the most exemplary safety programs in the country. We are using them to show other shipyards that things can be done well and that people can be kept safely.

Mr. Scott. Thank you. In the time I have left, Mr. Chairman, I would like to ask Mr. Upson a question.

Virginia is very proud of its high-tech industry. I am wondering what you can say about the Commonwealth's efforts in reducing the digital divide?

Mr. Upson. Thank you, Congressman Scott.

Governor Gillmore, as you know, has put forward in his budget a comprehensive initiative to really bring the promise of the information age not just to Northern Virginia but across all sectors. We are proposing community-based Internet access centers across Virginia, putting together public-private leaders, committing State funds to give computer access to segments of society that right now do not have it and, importantly, not invest that money in areas where we think those people should go in traditional areas, which would be the library.

We are investing in the libraries, too, but when you go into inner cities or you go into rural areas, we are asking the question, where do they go? To churches? To

Community organizations? We have $5 million that will be matched by private sector funds providing Internet and computer access across Virginia, all sectors, all regions.

The governor has proposed an initiative to put $110 million not in computers in the classroom but developing curriculum against the standards of learning that will allow students, parents and teachers to go to particular standards and get information in health and resources to address every one of the standards that we are learning, starting in high school. There is an attempt to try to use excess TANF funds that States have, and for that we need clarification from Congress to make technology available to poor families who right now can't afford it, because digital opportunity is key. I think Governor Gillmore in his address to the Commonwealth said that the promise of the information age can be fulfilled. It doesn't recognize race, gender, sex, age, or disability. If we can reach out and include those populations, we have a comprehensive program to try to do that.

Also, the only final thing I would like to say as you raise that in terms of education, we are trying to put in place an internship program that gives the tax credit to employers to actually hire these technology graduates. What we are finding is that companies are not hiring them because they put a premium on experience and education; they want both. So we are giving tax incentives to employers to hire and to students if they stay with the employer in terms of tuition assistance. So we have a comprehensive strategy trying to address those issues.

Thank you, Congressman.

Mr. Scott. Thank you, Mr. Chairman.

Mr. Roemer. Mr. Chairman, before Ms. Kilberg answers, could I just say that I want to commend you? You and I are working on a hearing, putting together a hearing to try to deal with precisely this topic that Mr. Scott raises in the education and oversight part of our jurisdiction to try to work with the business community, with the high-tech community to see what precisely they are doing not only in the education area but also in addressing the digital divide, and we hope to have a hearing soon on that.

Chairman Hoekstra. Ms. Kilberg, maybe you can come back then.

Ms. Kilberg. Yes. I see you are doing that in Northern Virginia. Our council has established, acquired, equipped, paid for and are staffing with AmeriCorps volunteers a computer center in Gum Springs at the Community Center specifically to address the needs of the children who go home after school and do not have access to the technology that their middle-class counterparts do. By the time they hit 5th grade if they do not have access to that technology, they get further and further behind in their school work and in their ability to understand what the world is doing around them. We are now serving approximately 110 children in that 5th to 8th grade age group every week. So the private sector does have a responsibility.

Chairman Hoekstra. Thank you. Mr. Schaffer

Mr. Schaffer. Thank you, Mr. Chairman.

The American public hopes that the regulatory structure of our country and of OSHA in particular is based on scientific, well-reasoned consideration, rather than the whims of public opinion. In this case, you have issued a rule and then rescinded it based on public opinion. You have not suggested to the Committee at all that the decision to rescind the letter was based on any thoughtful consideration that was applied anywhere in order of the same magnitude that you presumably put into it before you issued the letter in the first place. I want to underscore or reemphasize that point with a question of sorts and an observation.

On January 4th, the Secretary issued this press release saying the Federal Government has neither the desire nor the resources to investigate private homes in America, effectively rescinding the letter. The very next day, Gregory Baxter, who is out in the regional office in Denver, sent another e-mail out. Let me read it.

Reminder, from Gregory Baxter to, and it has a bunch of letters: OSHA reg, OFC all group, then OSHA adds group, then OSHA adds group. I don't know what those people are, but maybe you do. It says, "reminder." It says, "Refer inquiries on the issue of work at home to the national office public relations folks. Do not give a name, just the number, 202-593-1999. The letter of interpretation has been removed from the OSHA web site." Don't refer folks to the web site if they want a copy, essentially. "The letter has been withdrawn, so it should not be distributed. For your information, the letter accurately articulates the position of the Department and the Agency. However, for now, don't engage in a discussion. Guess this is our answer to Y2K. Be sure appropriate staff are aware of this policy."

So you withdraw the letter. The Secretary sends out a press release saying the letter has been withdrawn.

The next day, the Regional Director sends an e-mail out to all of these folks saying, by the way, the letter accurately articulates the position of the Department or Agency, but don't talk about that.

Now, from any Member of Congress's perspective, let me see, how can you understand why we have a Committee hearing today and why we are continuing to investigate this issue? It seems to me that public opinion says you just got caught. You went too far, and the American people said, you guys are nuts, and yet you are continuing to go forward with interoffice e-mail saying, really, we haven't changed our mind; we just have to respond to the media and the pressure we are getting.

Am I interpreting this wrong?

Mr. Jeffress. Yes, sir, Congressman, you are interpreting it wrong.

Mr. Schaffer. Why don't you explain that?

Mr. Jeffress. First, we did not issue a rule here and then withdraw it.

Mr. Schaffer. The letter…

Mr. Jeffress. This was a letter that never was reviewed by policy folks in the Agency. Policy folks in the Agency, after the letter was called to our attention, reviewed it and withdrew it because it overstated our position.

Mr. Schaffer. Who is Gregory Baxter?

Mr. Jeffress. Gregory Baxter is the Regional Administrator in Denver for that area of the country.

Mr. Schaffer. Is Gregory Baxter wrong?

Mr. Jeffress. In saying that that is the position of the Agency, he is wrong. That letter was written before he got the clarification. That e-mail, if you will, was written before he got the clarification.

Mr. Schaffer. Have you seen the e-mail before today?

Mr. Jeffress. I saw it yesterday.

Mr. Schaffer. What was your response? Have you talked to Gregory Baxter about the e-mail?

Mr. Roemer. Mr. Schaffer, could we get a copy of the e-mail? We haven't seen any of the correspondence on our side of the aisle.

Mr. Schaffer. It has been distributed.

Mr. Roemer. We don't have it. We did not have a copy of the first e-mail, and we don't have a copy of this one, and we sure would appreciate it, if you are going to talk about these e-mails, if we could get them ahead of time. Thank you.

Mr. Schaffer. So, going back, what was the nature of your conversation? You know, I am real curious about just the kind of communication that goes on within the Department and ultimately who is responsible for not only a letter going out but more on rescinding it and on what basis. I want to explore that point further as well.

What is it about the letter that is incorrect?

Mr. Jeffress. The letter, Congressman, overstated our position, as you pointed out, and as I have stated. We went so far in the letter as to suggest that the banisters ought to be checked by the employer and the employers ought to go into folks' homes. That overstates our practice. We have never held employers accountable like that.

Mr. Schaffer. Here is something else it states. You said you have not, will not and have no desire to inspect homes or go into homes. The letter as printed in response at number 4 says, "We do not ordinarily conduct inspections of home-based work places, although from time to time we have visited private homes or apartments to investigate reports of sweat-shop-type working conditions in the garment industry and other businesses."

So let me ask Mr. Roemer's question again. Have you inspected homes in the past?

Mr. Jeffress. Again, Congressman, where there is manufacturing going on in homes and people are exposed to lead weights, and as a matter of fact in my testimony I didn't read it, but in the written testimony provided to you, there are three cases where lead has been sent home for people to melt and pour into molds and that lead spreads over the kitchen table. Children are exposed to that lead and ingest that lead. In that situation, Congressman, you want us to go into that home and get the lead out of that home, and that is what we do where those types of activities occur.

Mr. Schaffer. So you have inspected home-based businesses in the past, is that correct?

Mr. Jeffress. Where there is manufacturing going on in homes. It very rarely happens. We do not target or inspect homes by random. If people call something to our attention and say, hey, we have a problem or we are worried about something here.

Mr. Schaffer. In what other types of situations have you investigated home-based businesses?

Mr. Jeffress. We have crossed the threshold in the homes when people have called us in because of things like lead exposure. There have been allegations about unguarded machines when employers have sent crimping machines home for people to do crimping work. There have been allegations about mercury exposure when people are recovering mercury from broken thermometers. There have been these types of serious hazards that we have been called to check on.

Mr. Schaffer. Is there some kind of record you can provide to the Committee? It is one thing to talk about lead and mercury in front of a Committee. I would like to see the records of what kinds of conditions compelled your Agency to actually walk into somebody else’s home?

Mr. Jeffress. Congressman, Mansbate Manufacturing, 1978: An employee of this Eufaula, Alabama company worked at home casting lead head jigs for fishing lures. Surrounded by her children, she poured and trimmed the jigs at the family's kitchen table. She had no training in lead hazards, nor was she aware that exposure could result in miscarriage or birth defects, damage to the central nervous system.

Mr. Schaffer. We understand the dangers of lead.

Mr. Jeffress. Capco Incorporated, 1985: Employees of this Grand Junction, Colorado, company were removed from their jobs building electronic capacitors after an OSHA inspection in 1984 revealed high blood lead levels. Afterwards, they began working for the company off-site at their homes. In response to complaints from seven workers, OSHA inspected the homes with three employees. Compliance officers found workers using unguarded crimping machines that could result in amputations.

Congressman, there are these hazards that occasionally occur. They are very rare. They are unusual. We don't go around and inspect homes at random, but if somebody calls us about that kind of hazard at home, I believe you want us to protect workers from those kinds of hazards.

Mr. Schaffer. Once again, we can come to wide agreement on hazardous conditions like those that you have described, but it comes to the gray area in the middle where there is general confusion not only among the regulators but the population at large, and that confusion is borne out in the memo that ultimately became public suggesting that we have gone into homes in the past and that employers are responsible for virtually every condition in a workplace.

Now, this level of confusion and uncertainty in the Department is an important one, and it is important for the whole country. Not only does it deal with the credibility of your Agency and the Federal Government in general, but Mr. Fairfax mentioned that, quoting from your statement before in answering the Chairman's questions, your staff’s morale is suffering on these issues. Our letter caused a lot of confusion, you said. The clearance process broke down, and I assure you it is being fixed, and so on.

Who is ultimately responsible for these problems in your Agency?

Mr. Jeffress. I am responsible for those problems, and I have directed a review of how this happened. I have directed a review to make sure that this doesn't happen again. Our clearance process broke down, Congressman; and I apologize for the confusion that has been caused here. The letter has been withdrawn.

Mr. Schaffer. Did you review the letter before it was posted on the Internet?

Mr. Jeffress. No, I did not.

Mr. Schaffer. Who did?

Mr. Jeffress. This letter was prepared and reviewed by staff level folks within OSHA, within the Solicitor's Office within the Department of Labor, and interpretive letters are generally provided on the Internet as a way of informing the public of what we do.

Mr. Schaffer. So who is the person who finally approved this to be issued?

Mr. Jeffress. The letter was signed by Rich Fairfax and was prepared by staff in his office and staff in the solicitor's office.

Mr. Schaffer. So, Mr. Fairfax, you are the one who finally approved this letter to be distributed and issued?

Mr. Fairfax. Yes. I am the one who finally approved it and signed it.

Mr. Schaffer. Can either of the two of you really understand what your employees must be going through right now? You mentioned the morale problems that you have, because they spent a lot of time coming up with the policy statement and then your Department says we are not serious about it, it is being rescinded. Then you send a memo out and say, you know, you really did a good job and you accurately stated the Department's position. Now you come in front of the Committee and say, no, I was wrong, it is not the Department's position. My goodness, if I was a staff member working under your supervision, I wouldn't know whether I am due for a pay raise or about to get fired.

Mr. Jeffress. I do think that the issuance of the letter points out a breakdown in our processes, Congressman. You are right about that, and we are having conversations about when people expand about previous interpretations, which is what this letter was, it can be tantamount to new policy. That has to be reviewed. We will make sure that these get reviewed in the future.

Mr. Schaffer. Was the letter sent to the Solicitor's Office?

Mr. Jeffress. Again, at a staff level, not a policymaking level, but at a staff level, this was reviewed within OSHA in the solicitor's office.

Mr. Schaffer. So it was sent to the Solicitor's Office.

Mr. Jeffress. At a staff level; yes, sir.

Mr. Schaffer. That is a huge distinction, don't you think, between filing a letter like this with the Solicitor's Office.

Mr. Jeffress. I am sorry, a distinction between what?

Mr. Schaffer. That is a huge issue, don't you agree, sending it to the Solicitor's Office? It gives it more than just posting it on the Internet. Filing a department letter like this and an opinion with the Solicitor, it makes it more than just an opinion.

Mr. Jeffress. No, that is not correct. The way the Labor Department works, there is an OSHA division within the Solicitor's Office of attorneys who, on a routine basis, assist OSHA staff with interpretations. It is absolutely routine that letters like these be reviewed by staff in the Solicitor's Office. It does not raise it to a new level.

Mr. Schaffer. One final comment because I've tested the Committee's patience. I apologize for that.

Every time some issue like this occurs within the Federal Government, you and your counterparts and other Agencies come to us and say, yeah, we made a big mistake and things are going to get better from here on out. I'm more interested, obviously, in a statement of this magnitude that has affected the country in the way that it has and is no small problem. I would expect that the action would be more than prospective, that there be some retroactive response as well.

I want to know who is responsible and what actions have been taken. Anybody been fired? Anybody been demoted or has anybody been disciplined in some way for allowing this to occur?

Mr. Jeffress. No one has been fired. We are having serious discussions with our staff about how to do things well, how to do things right, and why this letter expanded upon previous interpretation.

Mr. Schaffer. So effectively, no one has been held accountable for this mistake.

Mr. Jeffress. I believe you all are holding me accountable in a very appropriate way, Congressman.

Mr. Schaffer. I'll tell you what. If you can't come back to this Committee within a reasonable period of time with some suggestion to us of who has been held accountable for such a mistake of this magnitude, then maybe you ought to consider resigning because that’s the only way this Federal Government is going to get your office to get serious and have some understanding about how much impact you have on American commerce and business and for you to take serious actions in response to a problem like this. Your failure to do so trivializes the magnitude of this problem.

Mr. Scott. Will the gentleman yield?

Mr. Schaffer. I yield back the balance of my time.

Chairman Hoekstra. I think the gentleman's time has expired. I'll yield to Mr. Ford.

Mr. Ford. I'll yield 30 seconds to my colleague, Mr. Scott.

Mr. Scott. Thank you. Mr. Jeffress, comments have been made about OSHA going into people's homes. Homes are protected from unreasonable search and seizure under the fourth amendment of the Constitution. How do you get into someone's home?

Mr. Jeffress. You're correct, Congressman. Should we go into someone's home, should we be called into someone's home, the fourth amendment would protect folks from unreasonable searches and seizures. If the owner of the home requested it, we would have to get a search warrant to enter.

Mr. Scott. That would be subject to probable cause that a problem exists?

Mr. Jeffress. It would be an administrative search warrant subject to those conditions, yes, sir.

Mr. Ford. I would like to thank all the panelists for being here this morning. My colleague from Colorado who is my friend, I appreciate his passion and fervor and sincerity, but I would hope that in our interest at trying to fix a problem, that we wouldn't aggravate or exacerbate what might already be there.

Mr. Jeffress, I appreciate the steps you've already taken. I think it takes a true human being, mature human being to recognize a problem exists and to take steps to fix it. We have many in Federal Government that exist that serve in Republican and Democratic administrations that have not taken the steps that you've taken and Secretary Herman has taken to fix a problem. I would hope that my colleague would not allow emotion to enter into this discussion or enter into the situation here as passionate as I feel about the fact that you're finding more people working in their homes and, as the gentleman from Virginia stated, we're applying old rules to a new role. I completely understand and completely agree and support but I don't think the way, my friend from Colorado, of approaching this is really the most constructive and productive way to go about addressing this problem. I would agree that we ought to send a very clear and unmistakable message to the Department of Labor as we have repeatedly on this Committee with any entity or agent that we deal with that we're not going to tolerate incompetence. We're not going to tolerate lack of attention to detail. And this clearly was a failure on the part of the Department and particularly your office, Mr. Secretary.

But with all due respect, I appreciate the steps you have taken and I would hope that the Chairman would make clear to this panel and make clear to the Secretary that the tone that Mr. Schaffer took with the Assistant Secretary is certainly not the tone that we wanted to be expressed or desired by this Committee. We want to make it clear this will not be tolerated and if you come back before the Committee with similar circumstances, we certainly would want to make recommendations to the Secretary, but you recognize what has happened and you have taken steps to correct it. And to that extent, I applaud the Chairman for applauding the Secretary and would hope that my friend, Mr. Schaffer, would recognize he has stepped up to the plate and said, I'm the one to be held accountable.

Mr. Fairfax, I appreciate your stepping up for your boss there and making the comments that you made but your boss has made it clear that the buck stops here. That's more than I can say for some of my colleagues here in the Congress and more than I can say for some folks in this administration and even previous administrations. So for that matter, Mr. Jeffress, I say thank you for stepping up to the plate and accepting the blame, being held accountable for the decision and taking the steps to address what has happened.

In light of what has happened, I would ask Mr. Sapper, in light of some of the testimony, particularly Mr. Jeffress' testimony, the Secretary's testimony, your concerns about some of the concerns you've raised. I appreciate the concerns you've raised and I would hope to take the Department at its word, Secretary Herman and Secretary Jeffress, when they say they're looking for a national dialogue on this issue. And certainly Mr. Schaffer's comment to my comment, the Chairman, the Ranking Member and others on this Committee who would all be part of that dialogue as well as you, Mr. Sapper. Are you somewhat pleased with at least, number one, the fact that we want to call for a dialogue and, number two, some of the steps that have been taken?

I've read as you probably have as well and you heard this morning some of the testimony. I didn't get a chance to hear all the testimony. I apologize. I just got engaged and my fiance got stuck in the car at home. I didn't know how to get the car out of the snow. So I apologize for missing part of the testimony. It snows two inches where I'm from and the place shuts down. I'm from Memphis, Tennessee. In light of that, in light of some of the things that have been said this morning and in light of the changes in policy, do you see the Department moving in the right direction? I would really ask you and the gentleman from Virginia, whose name I can't see.

Mr. Upson. Upson.

Mr. Ford. Mr. Upson, the two of you, do you see us moving in the right direction and if not, what specifically would you recommend that the Department take a look at? I only have a few minutes. I kind of want to stay within the time frame, although it hasn't been respected throughout the hearing this morning. But I would like to try to stay within the time frame, so the two of you if you wouldn't mind responding to that, I would appreciate it.

Mr. Sapper. I would be happy to, Congressman Ford. Yes, the Department has taken some steps in the right direction. However, they are only going to give you symptomatic relief. They don't deal with the underlying fundamental problem.

Mr. Jeffress has said that the Department is going to improve its internal review mechanisms. The problem is that the review mechanisms are internal. They're not public. There was no proposed version of this policy circulated for public comment and published in the Federal Register. The problem is it's all departmental. The public is not involved. As long as that problem remains, you will be here at another hearing some day soon I'm afraid to say. Yes, it's nice that there's a public dialogue that is going to take place. That's good but it's not being done in the way that Congress provided and that is through public open rulemaking in which the entire Nation, not just those invited into a dialogue can participate, can send in their comments. That is the step.

And again, I would reiterate that there is a problem with the statute. There is an underlying problem and that's the one that should be fixed. I would also point out that if you look at the e-mails, the problem here is that very lack of public ventilation. You have a lot of public servants, bureaucrats they're popularly called, talking to each other. They're not talking to the general public outside the Beltway. That's the problem. And the reason that they're not doing that is because they're encouraged by a Supreme Court decision that is contrary to Congressional intent and unbeknownst to the Supreme Court, I would add in fairness to the Supreme Court, unbeknownst to the Supreme Court that is distorting the mechanisms by which this statute was intended to operate. That's the problem, sir. I hope I've been helpful.

Mr. Upson. Congressman Ford, I appreciate the opportunity to respond. I do believe that Mr. Jeffress is moving forward, is well intended, believes that there will be no invasion of the workplace, but I do have two or three issues I would like to raise and leave with you. As the Secretary of Technology from a high-tech state, as a former Republican staff director of what was the Government Operations Committee, I came here wondering why there was going to be a hearing since it seemed like it was all addressed and I'm leaving thinking I really feel an obligation to talk to the Governor and this is an issue I think that needs to be reviewed for these reasons. You have an interpretive letter that I have come to appreciate has legal standing. It was issued without any public input. It's now going to get a directive without any public input rescinding it. That does have a major impact, I think, on explosive growth in this economy that's just allowing us so many good things.

The other thing that bothers me a little bit is while I believe Mr. Jeffress, I don't believe the bureaucracy agrees with him. The tone; I'm sorry the employees are upset that their interpretive letter didn't get to stand. I think my point is, someone needs to tell them we blew it and what we really need is not a national dialogue of what the work office at home should look like. We need to internally look at what we did and instead of saying you did the right thing, it stands, it's the correct interpretation, we should say it's not correct, it doesn't fit anymore and inside we blew it and we need to address it that way.

But I am concerned about the regulatory procedures and I hope you do continue the vigilance of this Subcommittee, and I would even recommend that if OSHA is not going to go into the home office, if they're not going to have anything to do with it, there is a proposal that you might want to consider. Have the act not apply to it. That way it ends the discussion. It ends this stuff that says we were correct, let's put it on the shelf for now and all that. That does leave me a little bothered, Congressman.

Mr. Sapper. Congressman Ford, may I add something?

Mr. Ford. Yes, sir.

Mr. Sapper. Mr. Jeffress said before that he did not think that this issue would be amenable to rulemaking. That's not exactly true. OSHA can adopt substantive rules governing this issue. In fact, they have already done so. Circulated by the Committee today and also quoted in my written testimony is a regulation that OSHA has adopted 29 Code of Federal Regulations, section 1975.6. That states an OSHA policy as to inspecting the home with regard to domestic servants. If OSHA did it there, they can do it here with regard to home offices. There's no fundamental difference. They can do this as a substantive rule with classic notice and comment rulemaking. They can do it as an interpretive rule and also to public notice and comment rulemaking.

Mr. Ford. I would just add before I yield back, Mr. Chairman, that I would imagine that there are companies all around the nation that would be concerned that internal e-mails would be released. I can just imagine some of the laughs that some of us would get and maybe some of the lawsuits that would ensue if indeed we were to release or be able to subpoena all of the e-mails that might exist in cyber world today. I do hope the e-mail is not reflective of where the Department will end up. I hope that all of us and you do go back, Secretary Upson, report back to the Governor because I think we want as much input as we could possibly get; constructive input.

I would also hope that as we move forward, people would take people at their word. I take you at your word, Mr. Secretary, that you're going to go back and clearly and cogently correctly report to the Governor what has happened. I hope we would take Secretary Jeffress' word that he indeed will, as well as Mr. Sapper, I hope you would take the Secretary's word. The fact that he's here and the fact that he has taken steps not only to be held accountable but to rescind these policies I think are good faith efforts on his part and certainly indicative and demonstrative of his willingness and capacity and desire to see this problem resolved in a way that will not stymie economic growth and will protect workers. I think sometimes in these hearings we get so caught up in the emotion and the TV cameras that we forget there are workers we are trying to protect. Although there was a mistake made, it was in the interest of trying to protect workers.

I would imagine all of us, whether we're from Virginia or Tennessee or business owners or non-business owners, all of us would want to see that happen, including my dear friend from Colorado and all of us on this Committee. With that I have no time to yield back and I thank the Chairman for allowing me to go over.

Chairman Hoekstra. I thank my colleague for taking the liberties with the time as all his other colleagues have today.

Mr. Sapper, you already know you're correct. There will be another hearing on an issue in the near future and we already know what it's going to be. It's going to be on stock options because again I think within the Labor Department it went through the same process with very little, if any, public input. This is the documentation that we got from the Department on the directive or the letter that affects 20 million employees who work at home with, as far as we can tell, no public comment period or any attempt to reach out.

And Mr. Upson, I'm sorry if you didn't understand why we were having the hearing today before you came but I'm glad that now you've been here for two hours and 15 minutes that you understand. We felt it was important to get this on the record as to exactly where the Department is because when you rely on the Washington Post and Inside OSHA and all of these other kinds of things, there's too much ambiguity and we wanted to get clarity in place today.

I think from our perspective, I'll be introducing legislation next week because this issue is too important to be left to the interpretations of OSHA. We applaud the effort and the ball is in their court. They need to move as quickly as possible, but to ensure that that is where we stay as we move into the future, I think it's important that Congress clarifies the OSHA Act to get some legislation put in place.

I don't even have any time. I've got to go to Mr. Tancredo.

Mr. Tancredo. Thank you, Mr. Chairman. Just a couple of questions for clarification purposes for me.

I'm sure everyone on the panel understands Mr. Jeffress. Especially the impression that has been created by both the testimony and the revelation of the internal memoranda and e-mail is that in fact what we have here is an Agency that is sort of circling the wagons, riding this one out and hoping everything will and everybody will just go away and eventually we'll get back to business as usual. Business as usual of course being to pursue as vigorously as possible the policies that you have outlined in the e-mails that we've referred to. I mean, that is certainly the impression one would get of what we have heard up to this point in time.

All your protestations to the contrary, I must tell you, Mr. Jeffress and Mr. Fairfax, notwithstanding, it is certainly clear to me. It is the way I observe this situation here, that it's CYA mode everybody is in and if this whole thing can be brought to rest pretty soon, we can get this over. We can get the hearings done, get out of the way, get out of the public eye, we can get back to doing exactly what we've always wanted to do.

There are a couple of other things I guess that may lead me to that conclusion even beyond the e-mail messages and beyond the testimony. For instance, one of the things I'm not sure I'm understanding entirely right now, Mr. Jeffress, is do you know exactly or even generally how many people were actually involved in the process of developing this interpretive letter?

Mr. Jeffress. Congressman, there are a number of people involved in the handling of this letter. Our internal records that we have provided to the Committee show 12 to 15 people handling the letter at different times.

Let me point out that the e-mails that you're concerned about and several of you have referred to were both sent on January 5, a day when the confusion that our interpretive letter had caused the public was still creating confusion within OSHA as well. Since January 5 we have taken very clear steps as to where we are on this, and I hope that no Members of the Committee would read those e-mails to suggest that anyone within the OSHA staff continues to be confused about the issue.

Mr. Tancredo. The only way I think I would be convinced of the sincerity of that statement is if in fact I see some action taken. I don't just simply mean a slap on the ergonomically protected wrist of some employee at OSHA. I mean some action taken of a more severe nature for the people who actually were responsible for the development of this. When people say things like "the buck stops here," I don't know exactly what that means.

Oftentimes I heard Ms. Reno, for instance, say that many times about many different issues, yet she's still there, things still go on. I don't know what "the buck stops here" really means in this administration. It's really just a way of getting past where we are. You have to remember when we look at this and you say 12 to 15 people were involved and all these problems developed, the impression was that they developed sort of quickly. This happened, we were all surprised, amazed, and now we're clarifying the record.

But in fact, the letter that prompted the original response, the letter from Mr. Trayhern of CSC Credit Services, in fact says Mr. Trayhern, thank you for your August 21, 1997, letter to OSHA; 1997, August 21. Somebody writes you a letter. Two years later, November 15, 1999, you respond. Now, certainly I would be led to believe by that time frame, that a lot of people spent a lot of time thinking about this, going through the procedures that are necessary internally to develop it, and that it wasn't so spontaneous. It actually took a lot of time, a lot of preparation, and there wasn't that degree of ambiguity in there that you would lead us to believe existed at the point in time; that the decision was made, that it was a very thoughtful process, 2 years after all.

In a way, sir, I guess I am not surprised. I'm certainly concerned by the fact that so much policy has attempted to be made through administrative procedure, as certainly the President has showed us over and over again through his misuse, the abuse of the executive order process. Maybe, it just all sort of floats down from there to every Member of his Cabinet.

Now, but nonetheless, you can see how we could come to these conclusions that have been expressed and especially the fact that this thing took so long in its preparation. Is there some other reason that it would have taken 2 years for this letter to be responded to other than the thoughtful deliberations inside of the Agency?

Mr. Jeffress. Congressman, there's no good reason for this letter to have taken 2 years. There's no excuse for our taking 2 years to respond to a letter from an employer, or from anyone who requests the interpretation of OSHA. Let me state that from the outset.

In looking at what happened during that 2-year period, there was a period of time when someone was out for 5 months. The letter did not get moved from that person's work as it should have to someone else's to pick up her work. There was another period of time where the person working was hurt and was out. There were big slices of time where the letter simply sat and did not get acted upon. Again, that's a part of our procedures that we will review and improve.

Mr. Tancredo. Well, we will certainly be very interested, I will certainly be very interested to see exactly what that review process entails. And as I say, it's really intriguing to me from my point of view when we say "the buck stops here" that means nothing to me. That means nothing.

I want to see that some concrete action has to be taken as a result the fact that the buck stops some place. It's got to have ramifications beyond just a statement.

I certainly appreciate your time and your testimony today, all of you really. I think it's been a very, very helpful hearing and I just want to say thank you.

Chairman Hoekstra. Thank you, Mr. Tancredo. Can you give us a copy of the letter that has been sent to CSC since January 5? Have you sent a letter to CSC to Mr. Trayhern?

Mr. Jeffress. I've had a conversation with Mr. Trayhern. I was just checking with Mr. Fairfax to see if in fact the letter has been sent that officially withdraws it. I believe it has. I will certainly share with you what our communication said to him.

Chairman Hoekstra. I think that would be helpful for the Committee to see that a letter has been sent and exactly when it was sent and exactly what it says.

Mr. Jeffress. Yes, sir.

Chairman Hoekstra. We have a guest at the Subcommittee today, Mr. Major Owens who is a Member of the Full Committee. Welcome, Major, and we'll yield to you.

Mr. Owens. Thank you very much, Mr. Chairman. You mentioned the possibility of legislation in this area and if you do that, of course the legislation would come to the Subcommittee on Workforce Protections, where I serve as ranking Democrat. I welcome the opportunity because when Congress tries to micromanage these kinds of situations, we get an education. If only we will have the appropriate amount of hearings and allow both sides to testify. Certainly the workers need an opportunity to testify. I don't think actual workers out there in the field are represented here today.

You know, from the start of this hearing when you swore in the witnesses, there was a feeling of sort of an inquest being held. I just want to ask Mr. Jeffress, did anybody die as a result of this action?

Mr. Jeffress. No, sir.

Mr. Owens. Was anybody injured?

Mr. Jeffress. No, sir.

Mr. Owens. I think we had a situation where an employee indulged in overkill. It wasn't totally silly or ridiculous. There is room for confusion and it happened and I think the Members of this panel and all Members of Congress, most of them have between 10 and 22 employees. Once or twice a year their staff commits these kinds of blunders even though there is a chain of command, Chief of Staff, Director, and so forth. So these blunders happen.

Chairman Hoekstra. Would the gentleman yield?

Mr. Owens. Yes, I would be happy to yield.

Chairman Hoekstra. Mr. Jeffress, at CSC, did Mr. Trayhern make any decisions regarding personnel based on the letter that you sent on November 15?

Mr. Jeffress. He told me that he had received the information needed. It was helpful to him, and he appreciated it.

Chairman Hoekstra. Did he make any employee decisions?

Mr. Jeffress. I would have to refer you to Mr. Trayhern.

Chairman Hoekstra. Did anybody else who looked at your web page deciding what to do with home workers between November 15 and January 4 make any decisions as to whether they would continue home employment, telecommuting, whether they would start it or whether they would stop it?

Mr. Jeffress. I would have to refer you to those people, Congressman.

Chairman Hoekstra. You said no one was injured.

Mr. Jeffress. No one was injured as a result of this decision.

Chairman Hoekstra. No one was injured. What about the employee that worked for CSC where CSC stopped telecommuting based on your letter. Were they injured if they lost their job?

Mr. Jeffress. Do you have any information that that happened, Congressman?

Chairman Hoekstra. No, I don't. You must because you said no one was injured. There are 20 million people that are involved in telecommuting. You said no one was injured. I yield back.

Mr. Owens. Mr. Chairman, I reclaim my time. I really meant specifically we have a body or we have a patient in a hospital as a result of this because the tone is that kind of tone. I think the tone of the hearing is overkill. The rhetoric is overkill. There are other issues that are being injected here which are burdening the process.

This is a complex issue. With the number of people telecommuting rapidly multiplying, geometrically probably, it's an issue that requires profound consideration and we ought to lower our voices and reduce the rhetoric and allow a process to take place while recognizing it is quite a complex issue. For example, you know, by the way, ABC News had a report on this which used this incident as a beginning of its story but spent three-quarters of the story on attacking ergonomics. That kind of thing I think is pervasive in most of the discussion around this issue. It really wants to reduce the Department of Labor and OSHA to absurdity by using this example and intimidate the Department and other areas. I think we deserve better and the American workers deserve a better approach to this.

If you had a situation where an employee worked in a garage and painted cars, and I know of a situation that I'm speaking of, they paint cars, and business got so good that the employer decides to have his employees take some of the cars home and paint them in their garage because he doesn't want to open a new installation where he has to have ventilation and other kinds of safety features. If you're going to keep working here when we have a large amount of business, you've got to take some cars home and paint so you go home and you paint your car and it has no ventilation and there are other hazards there also, but you must do it in order to keep your job.

That's a situation which if it's a pattern, it seems to me OSHA should have some way to deal with it. Is that a manufactured situation in this complex economy of ours? Is it easy to sell what's manufactured? Painted car, spray painted car is not manufacturing, you know. Is it covered or not covered in telecommuting? Are we in a situation now because of the rapid expansion of telecommuting, the court is not going to have some cases they don't already have. I don't know if anybody has alluded to that. I had to go out a few times.

The courts, I assume, in the next 12 months are going to have some cases, I'm sure. If a baby got strangled in a wire connected to a computer, the mother says if they had given me the funding to hook it up right, my baby wouldn't have gotten strangled. A wife working at home tries to fix a home computer, cuts herself and bleeds to death.

There are going to be some incidents because the volume is so great. So we should prepare for a situation that is becoming more and more complex instead of reduce it to absurdity. I think that's what I hear today. If you have employers who use telecommuting as a way to get around safety at the workplace, then it really is a very important issue for OSHA to consider.

There are some other considerations. Since there are going to be a large amount of people working at home, telecommuting, should we not have some kind of safety education program for them? Is there one already? I don't know.

For a person to be telecommuting, they ought to be able to get some help in educating themselves about what hazards they may face in a situation. The consultation services which we are developing, and proud of the fact that it's expanding, is there going to be an equivalent of that for telecommuting workers who really have some questions as they move away from the workplace where the OSHA focus has been on the employer and the employer's apparatus for distributing the information on safety and so forth or will there be some kind of new way to handle that?

But maybe I will just pause and ask, in the process of considering this problem, have any of these things been raised? The education of telecommuters about hazards, the fact that consultation may be available, the fact that they should be told that if there's a pattern of them being used in telecommuting as a way of avoiding the installation of certain kinds of safety features in the workplace, they have a right to appeal OSHA?

Mr. Jeffress. Yes, Congressman. The questions you raise are questions that others are asking that need to be addressed. I don't think there are clear, definitive answers on all of them. In structuring this policy, we've tried to very clearly wall off home offices but not wall off areas such as a car being sent home to be painted at home.

As we have looked at the issue of telecommuting within the Department, the Secretary issued a statement last Labor Day called "Future Work" where telecommuting was a part of the kind of future work we anticipate people doing. We are looking at what other employers, and what other associations say about this. If you look at the International Telecommuting Association, for instance, they have tips for employers.

If you're sending people home to work, what kinds of things should you be concerned about? They mentioned being concerned about the environment that they work in.

If you look at different employers' policies in terms of what they ask of their employees who are going home to work frequently, they ask, what are the conditions that you're working in? Is it safe to work at home?

While we were walling off home offices, I think other issues related to telecommuting will be discussed in the dialogue that the Secretary has initiated, that we are having conversations with the people now about and anticipate a larger conference on later this year. I think you're exactly right, the number of people doing this and in what industries they are doing it, where does it work well, where does it work poorly, what are the issues surrounding it, all of those need to be a part of this continuing dialogue and discussion over how we respond to people working from home.

Mr. Owens. I thank you, Mr. Chairman.

My final word is we're going into what I call a cyber civilization. These things are going to get more complicated all the time. In a cyber situation, I hope Congress will not act on the basis of gross oversimplification. This is an issue that deserves more attention, real attention to what the problems are and how we can work them through.

Chairman Hoekstra. I thank the gentleman for being with us today and participating. Thank you.

Mr. Auchter, you've been patient. You want to say something. We'll give you the last word, other than Mr. Roemer and myself.

Mr. Auchter. That's a fair deal.

I find myself in agreement with Mr. Owens on a couple of points. It is a complex issue, and there is an undercurrent of ergonomics about this, and that's what's going to make this issue more complex. The discussion that's been held with the Committee today leaves me to believe that the Committee expects OSHA to inspect in homes, in residences where manufacturing is occurring. And my friend, Mr. Jeffress, cited some circumstances about lead inspections and so forth back in the 70's.

But I would suggest that, as you address this issue, you look forward. Because forward is ergonomics. This is ergonomics. This is ergonomic, and that's ergonomics. So now let's go inspect the manufacturing in residences looking for ergonomics. Because its the exception to OSHA's inspection and its stated policy in home offices.

But what about the woman in Boston, Virginia where I live, who is slicing hams at home and now has an agreement with an employer to pick up hams and bring them home? This is hypothetical. I don't know anybody who is doing this but she brings them home and at the end of the week takes them back all sliced. Or another individual who might be canning jelly for sale at Faith Mountain out there that's a major tourist area, and is that going to be the subject of OSHA inspections?

And let me look at this for just a moment, and ask you to look at this for just a moment from OSHA's perspective. The OSHA folks are here today testifying about an issue from their perspective, and they did what they thought they were supposed to do. They stepped out in good faith, and they worked on it, and they made a mistake. And I would suggest to you that the process works because they're here today explaining how they rescinded that mistake and what they're going to be doing in the future on that subject.

But there's room for discussion here and for change as we all collectively move forward, and what OSHA's issue could be in the future is 5 years from now we have an ergonomic standard and they're called up in front of a Committee for not inspecting the lady who is canning jelly in her kitchen. So I believe this is fair ground for the Committee to deliberate and to consult with your constituents and with the Agency to come out with a meaningful approach here for the future.

Thanks for your time.

Chairman Hoekstra. Thank you.

I would really like to thank the panel for being here. It's a critical issue. Mr. Upson is here. Governor Gilmore has indicated an interest, as other governors around the country, because this is an emerging issue affecting 20 million people, and it impacts the lifestyles and the productivity and the competitiveness of States in this country as a whole. So it has a tremendous impact. And potentially workers could or could not have been injured and by that I mean that they could or could not have had the opportunity to get high-quality, high-paying jobs.

This is going to lead to another look at other rulings by the Department of Labor, specifically the one on stock options. Because again I think it indicates a Department that does not understand the trends not only in the high-tech industry but actually what's going on in the workplace in America today, and that's something that we should all be very, very concerned about.

This Committee has spent 2 years going around the country talking to people in all kinds of different industries trying to understand how that would impact labor law and I think recognizing that the labor law that was developed in the '30s and the '40s most likely won't work in the year 2000 and beyond. It at least needs to be looked at and needs to be updated.

Ms. Kilberg, you've been a good representative for the workers that do telecommute.

Mr. Auchter, you've given us some very good insights as to where we go in the future on dealing with these issues. When you started talking about manufacturing, I'm not worried about slicing ham at home. I'm not worried about canning, but I am very, very nervous about what keyboarding means. Is keyboarding like manufacturing versus a home office, someone who enters data records, medical data, and these types of things? Without having those terms defined today, there is a huge degree of latitude within the bureaucracy rather than the legislative branch as to how those terms will be interpreted in the future.

Keyboarding, very quickly, can be defined as a light manufacturing operation and rather than using it and defining it as a home office it could be defined as a light manufacturing area. We need to watch and be observant as to exactly where that process guess.

Mr. Jeffress, Mr. Fairfax, welcome. Thank you for being here. We were very specific because we want clarity, and you have stated to us we will get the directive after you've written it and before it goes public. And we can give you something but we can't be participants in reviewing that directive with you and developing that directive with you. I think Senator Enzi, Senator Hutchinson, myself, Mr. Roemer, Mr. Goodling were probably disappointed by that position. We think that where we've been over the last 2 or 3 months and where you're going in 30 days, it would be a whole lot better to do this together rather than us kind of sending you some input and then finding out whether you have actually incorporated it or not. But you've had the last word on that. So we've gone through the process.

Mr. Sapper's predictions will come correct when we take a look at stock options and some other things. This is kind of out of the ordinary. We usually don't base hearings on things that came out of the press, but we do appreciate the "Washington Post" bringing this to our attention. It's one perhaps where our internal procedures have broken down. We now have new policies as well. We monitor your web page daily to see what you're doing and to just make sure what's going on.

Mr. Jeffress. We have about 14 million people every month that use the web page, so I'm delighted to hear you're all using it as well.

Chairman Hoekstra. That's right.

And, with that, I will yield to my colleague, Mr. Roemer.

Mr. Roemer. In 2 minutes, in conclusion, Mr. Chairman, first of all, I want to take the opportunity to commend and salute you for calling the hearing. I think it's been helpful, I think it's been productive, and I think it's been informative.

I want to thank everybody on the panel from the passion genuinely felt by Mr. Schaffer to some of the vision outlined by Mr. Owens. That's been helpful. I want to thank the panelists for your thoughtful insight. We hope to have informative hearings in the future on this very topic.

With respect to the past, just let me say that I don't think that home inspections of private homes have been part of business as usual. As a matter of fact, we've had three inspections of even manufacturing in private homes over the last 30 years since OSHA has been started. I estimate that it's 35,000 inspections a year that OSHA performs. It's well over a million inspections.

We've had three in manufacturing; 1978 in Alabama, I think that was the Carter Administration; 1985 in Colorado, I believe that was the Reagan Administration; 1991 in Wisconsin, I believe that was the Bush Administration. We have not had one under the Clinton Administration. I hope we don't have any under the Clinton Administration, and we continue that strain.

In terms of the present, I hope, Mr. Jeffress, that you will continue to come forward and say when you've made a mistake, it was a mistake, that you review the internal process and make sure it doesn't happen again. You've done that. You say you have no intention of going into the home. You recognize a compelling interest of the privacy of the home. That is a point that we have to emphasize today. Thank you for being here to restate that opinion, although it took some laboring to get to in the Department of Labor.

Finally, let me say in the future I agree with my colleagues here on this panel;

Mr. Auchter's comments. This is a very complicated topic with 20 million people and growing, engaging in telecommuting. We have to continue to let the public process work to bring in the businesses, the workers, you, the people represented in the growth of this industry, and not beat the growth down but make sure that we find ways to let this area grow and expand our economy but also make sure that people are protected.

And we hope that you will continue, Mr. Chairman, not to inter a dead horse, beat it and rebury it but move on to the future and let's see. After OSHA has admitted these mistakes, they're not going to do them again. Let's see how we go into telecommuting in the future.

And I thank you for the opportunity of the hearing.

Chairman Hoekstra. The Subcommittee will monitor and make sure that the horse is dead.

Mr. Jeffress, I also want to thank you. I understand that you've extended the comment period for the ergonomic rules and regulations for 30 days; is that correct?

Mr. Jeffress. Yes, sir, through March 2.

Chairman Hoekstra. I want to thank you for responding to the various letters that you've gotten asking for that extension. I appreciate it very much.

With that, thanks very much to the panel. The Subcommittee will be adjourned.

Whereupon, at 11:45 a.m., the Subcommittee was adjourned.