Scott Mugno: Trump’s Pick for Assistant Secretary of Labor


Profiles: Here is what you should know about Scott Mugno, President Trump’s nominee for Assistant Secretary of Labor for the Occupational Safety & Health Administration.

On October 27, 2017, President Trump announced his intent to nominate Scott Mugno as the next Assistant Secretary of Labor for the Occupational Safety and Health Administration, a position that is temporarily filled by Deputy Assistant Secretary Loren Sweatt. If Mugno’s nomination is confirmed, he would supervise regional and area offices and have the responsibility to ensure employers comply with the OSHA regulations and standards.

Mugno received his bachelors of sciences from St. John’s University, and attended law school at Washburn University of Topeka. Since 2011 Mugno has been the Vice President of Safety, Sustainability, & Vehicle Maintenance at FedEx Ground.  Mugno has also served as the Managing Director for Corporate Safety, Health, and Fire Prevention and Senior Attorney for FedEx.  According to the White House Press Release, Mugno’s was a two time recipient of FedEx’s highest honor, the FedEx Five Star Award, for his safety leadership.

Prior to his time at Fed Ex, Mugno worked for the Westinghouse Electric Company as Senior Counsel, and as a Judge Advocate for the General’s Corp in the United States Army.

Mugno serves on multiple committees related to occupational safety and health, including: the National Academies of Science, Engineering, and Medicine, the American Trucking Association, and he is the chairman of the U.S. Chamber of Commerce OSHA subcommittee.

After Trump officially nominates Mugno for Assistant Secretary of Labor for the Occupational Safety and Health Administration, the nomination will be passed to the Senate for consideration and debate until two-thirds of the Senate vote to invoke cloture. The Senate must confirm Mugno’s nomination by a majority vote.


For updates on the nomination of Scott Mugno visit

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11th Circuit to Rule on Mar-Jac Poultry Case


11th Circuit to Rule on Mar-Jac Poultry Case

On August 22, 2017, the 11th Circuit heard oral arguments for USA. v. Mar-Jac Poultry, Inc. on the issue of whether an OSHA Area Director can expand the scope of an investigation to a comprehensive inspection based on the entries in a Log of Work-Related Injuries and Illnesses (often referred to as a “300 Log”).

An OSHA 300 Log is a form for employers to record all injuries and illnesses that occur in the workplace, including: where and when the injury/illness occurred, the nature of the injury/illness, the name and role of the employee, and the number of days the employee missed work or had “restricted” or “light duty”.  Noticeably missing from the list of required recorded information is the causation of the workplace injury/illness.  This is because employers are not required to document this information on their 300 Log—a factor that plays a key role in the case before the 11th Circuit.

In USA v. Mar-Jac Poultry, Inc. OSHA conducted an investigation at Mar-Jac’s poultry processing facility after a February 2016 accident.  The accident required the hospitalization of an employee after he sustained first, second, and third degree burns in the course of conducting maintenance work. Mar-Jac fully cooperated with the investigation into the accident and took the CSHO to the site of the injury and permitted her to examine the tools involved in the accident.  Upon request, Mar-Jac provided the CSHO with the 300 Logs of Work-Related Injuries and Illness for the past three years.

The CSHO analyzed the data in the 300 Logs and determined, based on the entries, that there were indications of OSHA violations in six areas unrelated to the February 2016 injury. OSHA then sought an administrative warrant authorizing the agency to inspect (among other things) the six hazards solely implicated by the OSHA 300 logs.

A magistrate judge granted the warrant in its entirety, and Mar-Jac moved to quash the warrant. The District Court granted Mar-Jac’s motion to quash OSHA’s warrant to expand the investigation.  The Court found that OSHA did not have evidence to support a search for the hazards based entirely upon the potential hazards identified in the 300 Log.

The District Court noted that it is not evident from the entries in the 300 Log whether the injuries or illnesses resulted from an OSHA violation.  According to the District Court, the “mere presence” of an injury on a 300 Log is an insufficient basis for expanding the investigation. The Court then distinguished “hazards” from “violations”,  noting that hazards were likely abundant in dangerous workplaces like poultry processing plants, but a “hazard” does not become a “violation” until an employer fails to comply with an OSHA standard.  OSHA appealed the District Court’s decision in regards to the hazards solely implicated by the 300 Logs.

In the brief for the 11th Circuit, OSHA heavily relied on its “expertise and prior studies” of the poultry industry and its hazards as evidence that the request to expand the scope of the search is reasonable.  According to OSHA, the connection between injuries and hazards identified in the 300 logs—coupled with OSHA’s expertise of industry hazards—satisfies OSHA’s burden of proof for an administrative warrant.  OSHA contended it must merely “identify specific evidence of an existing violation” to obtain a warrant, and this evidence was satisfied by the 300 Log entries.

Mar-Jac contended that the District Court properly applied the legal standard for an administrative warrant, and determined that the 300 Log did not indicate “specific evidence of an OSHA violation”. Mar-Jac commented, “ . . . it defies understanding how OSHA takes knife cut injuries and concludes that those implicate machine guarding issues.” According to Mar-Jac, the Court correctly distinguished “hazards” from “violations”. Mar-Jac pointed to the 11th Circuit’s decision in Donovan v. Sarasota Concrete, which determined that a “specific complaint or report of a work-related injury or illness did not, without more, provide sufficient probable cause to expand an investigation beyond the condition or incident complained of or reported.”[1]  Furthermore, Mar-Jac argued that 300 Logs do not differentiate between hazards and violations because the causation of the injury is not recorded on the form. Mar-Jac contended that the 300 Log is merely a collection of information.

The 11th Circuit has not yet released its decision in USA. v. Mar-Jac Poultry, Inc., but during the oral argument the Judges expressed their concern about the potential for “unbridled discretion” of OSHA  Area Directors.  No doubt a favorable outcome for Mar-Jac, Inc. will be viewed as a victory for all employers weary of the possibility of “unbridled” OSHA inspections.

[1] Donovan v. Sarasota Concrete, 693 F.2d 1061, 1068-69 (11th Cir. 1982).

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Regulatory Agenda Offers Companies Brief Glimpse into Trump Administration’s Plans


Regulatory Agenda Offers Brief Glimpse into Trump Administration’s Plan

On July 20, 2017, federal agencies released their regulatory agendas.  The U.S. Department of Labor (DOL) Occupational Safety and Health Administration (OSHA) offered fourteen items.  The agenda items ranged from seemingly minor issues, such as correcting typographical errors to reduce burdens on employers— to tackling larger concerns weighing on the mind of companies. The delay and revision of the “electronic record-keeping rule” and a proposed change to the “Lock-Out/Tag-Out” standard are two interesting items on the agenda that give some insight into the regulatory plan of the Trump administration.

The new administration announced its intention to delay and revise the “electronic record-keeping rule”. The Obama era “electronic record-keeping rule” required employers to electronically report workplace injuries and illnesses in a data collection system.  An undesirable result of this regulation for many employers is that employer injury data would be available to the public.  Additionally, the rule contained anti-retaliation provisions that could effectively terminate some safety incentive programs, as well as post-injury discipline and post-injury drug testing.

Many employers may be pleased to discover that the agenda indicated that the new administration postponed the deadline to submit workplace injuries and illnesses from July 1, 2017 until December 1, 2017. Furthermore, the “electronic record-keeping rule” will be reconsidered in October 2017. This delay provides the Trump administration an opportunity to revise the rule, and allows employers to further review the electronic reporting requirements.

Employers expecting sweeping deregulations from the Trump administration may be surprised to discover the Standards Improvement Project-Phase IV (SIP-IV) regulations on the agenda. The SIP-IV regulations included the Obama administration’s “Lock-Out/Tag-Out” standard, which proscribed procedures for disabling machinery to ensure the safety of employee’s engaged in service and maintenance activities.

The Obama era standard sought to resolve conflicting applications of the rule to “unexpected energization” of equipment. The SIP-IV revision proposed removing the word “unexpected” from the phrase, “servicing and maintenance of machines and equipment in which the [unexpected] energization or start-up of the machines or equipment, or release of stored energy could harm employees.” Removal of the term “unexpected” would mean that the “Lock-Out/Tag-Out” standard could apply to all equipment maintenance involving stored energy hazard, which would broaden the scope in which companies must apply the standard.

Though SIP-IV remains on the regulatory agenda, it was accompanied by a new, seemingly flexible, “Lock-Out/Tag-Out” standard. The Trump administration’s proposed standard takes into account recent technological advancements—specifically computer-based controls of hazardous energy—that conflict with the current “Lock-Out/Tag-Out” standard.  The Trump administration is prepared to examine the increasingly prevalent technology to determine its potential hazards and limitations. This is an important consideration because other countries have already updated their “Lock-Out/Tag-Out” standards to accommodate the technological changes, and it may be beneficial to harmonize the United States standard to be compatible on an international scope.

While the agenda provides some insight into the Trump administration’s agenda, many questions are left unanswered. Considering that an OSHA administrator has not yet been named, the agenda only offers a brief glimpse into the new administration’s plans. Employers will have to wait a while longer for a clearer picture to crystalize. For a full list of the items on the agenda you can visit the Office of Information and Regulatory Affairs website at

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