But there may be exceptions to the new policy for certain “extraordinary circumstances.”
Under a September 24, 2020, memorandum obtained by the New York Times, Deputy Secretary of Labor Patrick Pizzella directed that DOL enforcement agencies should, as a matter of policy, refrain from issuing press releases “before achieving a successful outcome.”
“News releases are an effective way of communicating with the American public, but also have the potential to create an online record that is prominent in search results of a particular company or labor union,” Pizzella wrote. “This can be a good thing, but can prove misleading, if, for example the Department issues a release at the time a proceeding is first initiated, and is ultimately found unjustified in its enforcement action.”
An agency’s “own finding alone generally should not be the basis for the release,” according to Pizzella. In “extraordinary circumstances,” though, an agency head may seek exception to the new policy.
No releases before successful outcome. Under the new policy, the appropriate point at which an agency may issue a press release is:
- After a court or other tribunal has rendered judgment or issued a decision;
- After a conviction or plea agreement has been obtained;
- After an agency has entered into a settlement or conciliation agreement with the named party regarding remedies or the payment of a penalty; or
- After the time for contesting a finding (such as a citation) has elapsed and the party has not contested or requested to negotiate.
According to the memo, appropriately-timed news releases support the agencies’ efforts as “enforcement agencies” by giving the parties the chance to come into compliance or to defend themselves on the merits. “Once the Department has achieved a successful outcome in an enforcement action, releases issued should be viewed, when appropriate, as part of the education and remediation process,” Pizzella said.
What are “extraordinary circumstances”? Pizzella provided an example of what might constitute an “extraordinary circumstance that might warrant a news release at the time a proceeding is initiated”—”a case alleging a serious violation that is potentially widespread and which the Department has not addressed in a prominent way previously, so that instructing the public through a news release could significantly further worker protection.” Cases in which “there is a repeat or willful violation involving an imminent risk to safety or health,” may also warrant an early press release.
In such cases, the agency head should consult with the Offices of Public Affairs and the Solicitor when considering an exception to the general policy.
Pizzella’s memo is directed to Employee Benefits Security Administration, OSHA, Mine Safety and Health Administration, the Wage and Hour Division, the Office of Federal Contract Compliance Programs, and Office of Labor-Management Standards.
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