The purpose of this article is to do just that. As it turns out, there is fertile middle ground between the pure libertarian “do nothing” approach and the paternalistic command-and-control approach OSHA tends to favor. Even the middle ground “information-provision” approach a number of theorists have advocated (in imprecise terms) could be implemented several different ways, some of which would be more effective than others. It is therefore possible to make some systematic policy prescriptions that may aid regulators attempting to avoid regulatory mismatch.In the course of exploring the range of regulatory options, this article attempts to make several contributions to the literature on workplace safety regulation. First, it seeks to flesh out some concrete policies aimed at providing workplace risk information to employees. While a number of theorists have asserted generally that regulators should focus on informing employees of workplace risks, no theorist has offered a detailed proposal stating what information should be provided and how it may be transferred cheaply. Next, the article responds to behavioral theorists who argue that individuals' cognitive limitations and biases necessarily render ineffective an information-provision approach to workplace safety regulation. Thus far, the behavioralists and the information-provision advocates have largely talked around one another. This article shows that, even if the behavioralists are correct in their claims about individuals' abilities to process risk information, an information-provision approach may be effective. Finally, the article demonstrates that the informational inadequacy comprising the market failure sometimes consists of more than inadequate risk information on the part of employees; employers also may face systematic informational deficiencies, and any informational approach should address those deficiencies as well. The article therefore attempts to provide some guidance as to when regulators should provide information to employers as well as employees, and how they may do so effectively. Following Professor Breyer's “simple axiom for creating and implementing any [regulatory] program” (i.e., “determine the objectives, examine the alternative methods of obtaining the objectives, and choose the best method for doing so”), the article proceeds as follows: Part II defines the objectives of workplace safety regulation, first identifying the socially undesirable “symptom” regulators should be addressing and then diagnosing the more fundamental market failure that is responsible for that symptom. Part III then explores the regulatory options for eliminating the culprit market failure, paying particular attention to informational approaches to workplace safety regulation and concluding that such approaches may sometimes require employer, as well as employee, education. In addition, Part III responds to the apparent challenge behavioralism poses to an informational approach to workplace safety regulation.
Thomas A. Lambert, Avoiding Regulatory Mismatch in the Workplace: An Informational Approach to Workplace Safety Regulation, 82 Neb. L. Rev. 1006 (2004)