Violation Tracker

Tipping the Scales Against Workers

Donald Trump built his presidential campaign on the claim that he would be a champion for working people, yet his administration finds one way after another to tip the scales in favor of employers. The latest example involves tips themselves.

In December the Labor Department, bowing to the wishes of the National Restaurant Association, proposed to rescind an Obama Administration rule that prohibited employers from pooling tips. The rule had been adopted to prevent restaurant owners from claiming a share of the gratuities.

While the DOL has claimed that the change would benefit back-of-house workers who don’t directly receive tips, groups such as Restaurant Opportunities Centers (ROC) United say that employers often grab a portion of tips when it is not permitted and that legalizing the practice will only encourage owners to take more.

It turns out that ROC United’s position is shared but some at DOL, but those views are being suppressed. Bloomberg has just reported that political officials at the department rejected an internal analysis concluding that workers could lose billions of dollars from tip pooling. DOL sources told Bloomberg that the officials ordered staffers to change their methodology to reach a different conclusion.

Anyone who takes an honest look at the restaurant industry is bound to conclude that employers will do their utmost to exploit tip pooling. After all, these are companies that already steal from their workers through violations of wage and hour rules concerning off-the-clock work, overtime, misclassification and the like.

Consider the large full-service chains such as Darden Restaurants (Olive Garden, Capital Grille and other brands), Brinker International (Chili’s and Maggiano’s), Bloomin’ Brands (Outback Steakhouse and others) and DineEquity (Applebee’s and IHOP). As shown in Violation Tracker, each one of these has had to pay fines to the DOL’s Wage and Hour Division; six times in the case of DineEquity.

The chains have also been targeted in private collective action lawsuits brought by groups of workers. In 2007 Darden agreed to pay $11 million to settle a group of suits alleging that the company improperly classified certain types of workers as exempt from overtime pay eligibility.

In 2014 Brinker International agreed to pay $56.5 million to settle a long-running lawsuit alleging that the company had routinely violated California rules about meal and rest breaks. In 2016 Bloomin’ Brands agreed to pay $3 million to settle allegations that workers at its Outback outlets were required to show up early to perform unpaid pre-shift prep work. DineEquity has faced similar litigation.

Why would anyone think that companies involved in such transgressions would pass up another opportunity to enrich themselves if DOL gives a green light to tip pooling?

Wage Reparations

Donald Trump got a lot of mileage during his presidential campaign from criticizing the poor record of wage growth during the Obama era. Since taking office he has done nothing to directly address the issue. In fact, his administration’s attacks on labor rights have made it more difficult for workers to push for higher pay through unions.

Instead, Trump and his Republican allies in Congress came up with the cynical ploy of promoting their massive corporate tax giveaway as an indirect way of boosting paychecks. The right has always tried to lure labor with the promise of higher net pay that would come from reduced withholding schedules. Yet this time the claim was that companies would respond to reductions in their tax liabilities by boosting gross pay.

From the perspective of labor market dynamics, this made no sense whatsoever. There is no direct tie between corporate tax rates and wage levels. Most of the U.S. public seemed to understand this and expressed little enthusiasm for the tax bill.

Now, however, selected corporations are in effect colluding with Trump by announcing selective wage increases that they claim are inspired by the corporate tax reductions. Walmart is the latest and largest of the employers to play this game with plans to increase starting wages for its “associates” to the princely sum of $11 an hour. Some employees will be awarded one-time bonuses ranging from $200 (for those on the job for less than two years) to $1,000 for those hardy souls who have stuck it out for 20 years.

This plan, like the ones announced by the likes of AT&T and Wells Fargo, is far from a market response to lower taxes. These companies are no doubt using the increases to curry favor with the White House in the hope of better outcomes in their federal regulatory problems.

Then there’s the fact that these are increases that Walmart in particular had to make in response to previous wage hikes at its competitors. Even so, Walmart’s increases will leave many of its employees short of a living wage.

Another reason to doubt these moves are tax-inspired acts of generosity is that the companies involved each have a history not only of keeping wages down but of taking steps to deny workers the full pay to which they were entitled. In other words, all three have a history of wage theft.

Walmart, of course, was long the most notorious employer in this regard. It found myriad ways to get employees to work off the clock, thus violating the minimum wage and overtime provisions of the Fair Labor Standards Act. In the late 2000s Walmart was fined $33 million by the Department of Labor’s Wage and Hour Division and paid out hundreds of millions of dollars more to settle a slew of private collective-action lawsuits.

AT&T and its subsidiaries have paid out more than $80 million to settle about a dozen similar wage and hour and misclassification cases. Wells Fargo and its subsidiaries have paid more than $120 million in at least 17 cases.

These settlements provided some necessary relief, but the amounts probably don’t begin to approximate the full extent to which the companies shortchanged their workers.

Consequently, whatever voluntary pay increases the companies are offering now can be seen as additional reparations for their past sins of wage theft.

If the management of Walmart really wanted to solve its compensation shortcomings once and for all, it would at long last recognize the right of its workers to form a union and bargain collectively.

Note: the litigation figures cited here come from data being collected for a forthcoming expansion of Violation Tracker.

Money Laundering and Corporate America

Money laundering has jumped back to the top of the corporate crime charts, thanks to Steve Bannon’s statements about Trump’s associates as well as the revelation by the founders of Fusion GPS that they gave Congressional investigators leads about the president’s questionable business transactions.

Amid all this, the Office of the Comptroller of the Currency reminded us of the wider scope of corporate ties to money laundering by announcing that it was fining Citibank $70 million for failing to comply with a 2012 consent order the bank signed with the agency to resolve allegations of violating the Bank Secrecy Act. Western Union is paying a $60 million penalty in a similar case brought by New York regulators.

According to data compiled for Violation Tracker, the Justice Department and federal financial regulators have since 2000 brought more than 80 successful cases against corporations for deficiencies in their anti-money laundering practices. These companies have paid a total of $5.9 billion in fines and settlements.

The targets of these cases include several of the largest U.S. banks. JPMorgan Chase paid the largest penalty, $1.7 billion, to resolve a criminal case connected to its role as the banker for Ponzi schemer Bernard Madoff. Wachovia, now owned by Wells Fargo, was fined $110 million in 2010. Citigroup subsidiary Banamex agreed last year to forfeit $97 million to resolve a criminal case involving remittances to Mexico.

Foreign banks have also been involved. In 2012 HSBC had to pay $1.3 billion to resolve charges relating to anti-money laundering deficiencies as well as violations of economic sanctions. Last year Deutsche Bank – the same institution whose name keeps getting mentioned in connection with the Trump investigation – was penalized $41 million by the Federal Reserve and was fined $425 million by New York State regulators for anti-money laundering deficiencies said to be connected to the illicit transfer of more than $10 billion out of Russia.

Federal prosecutors and regulators have also brought cases against non-bank entities that handle lots of cash, including Western Union, American Express and casinos. In 2015 the Tinian Dynasty Hotel & Casino was fined $75 million, and in 2013 the Las Vegas Sands Corp. paid $47 million to resolve criminal charges.

Also in 2015 the Treasury Department imposed a $10 million penalty on the Trump Taj Mahal Casino Resort, which by that time was no longer controlled by Donald Trump. Yet the justification for that penalty mentioned that the casino had been found in violation of the Bank Secrecy Act many times in earlier years, including 1998, when, with Trump running the show, it was fined $477,000 by Treasury.

All of which is to say that neither Donald Trump, his current and former business interests, nor many of the largest financial institutions are strangers to issues of anti-money laundering deficiencies. For the most part, these cases involve a failure to detect and report suspicious transactions on the part of clients and customers. The big question for the Trump empire is whether it will faces charges of having engaged in such transactions on its own.

The 2017 Corporate Rap Sheet

The year began with a burst of announcements by the Obama Administration of cases it rushed to resolve before leaving office. In the period between election day and the inauguration, the Justice Department and various agencies announced more than $30 billion in fines and settlements.

That flurry of activity disappeared once Donald Trump took office. Agency enforcement activity soon resumed, thanks to the efforts of career officials, but it appears that the volume of cases has declined compared to previous years. The same goes for the Justice Department, where high-profile prosecutions of large companies have continued but have become less frequent. Here is a rundown of selected major cases resolved during 2017, divided between the two administrations:

Obama Cases

Sale of Toxic Securities: Two of the year’s biggest penalties came in cases stemming back to the period leading up to the financial meltdown in 2008. During its final days the Obama Justice Department got Deutsche Bank to agree to pay $7.2 billion to resolve allegations that it misled investors in the sale of mortgage-backed securities. A day later it announced that Credit Suisse would pay $5.3 billion in a similar case. Moody’s reached an $864 million settlement with the federal government and 21 states for providing flawed credit ratings on what turned out to be toxic securities.

Money Laundering. In January Western Union agreed to forfeit $586 million and entered into agreements with the Justice Department and the Federal Trade Commission to resolve criminal allegations that it failed to maintain an effective anti-money-laundering system and that it abetted wire fraud.

Environmental Fraud: In January the Justice Department announced that Volkswagen would plead guilty to three felony counts and pay a $2.8 billion penalty to resolve the criminal charges brought against the automaker in connection with its scheme to use a device to cheat on emissions tests.

Auto Safety Fraud: In January Takata Corporation agreed to pay a $1 billion criminal penalty in the case brought against the Japanese company for fraudulent conduct in the sale of defective airbag inflators.

Trump Cases

Sale of Toxic Securities: In July the Federal Housing Finance Agency announced that Royal Bank of Scotland would pay $5.5 billion to settle allegations relating to the sale of mortgage-backed securities to Fannie Mae and Freddie Mac.

Export Control Violations: In March the Commerce Department’s Bureau of Industry and Security announced that the Chinese company ZTE would pay $661 million to resolve allegations that it shipped telecommunications equipment to Iran and North Korea in violation of U.S. export restrictions.

Bribery: In September the Swedish telecommunications company Telia was fined $457 million by the Securities and Exchange Commission for violating the Foreign Corrupt Practices Act through illicit payments to government officials in Uzbekistan.

False Claims Act: In August the pharmaceutical company Mylan agreed to pay $465 million to settle allegations that it misclassified its EpiPen devices as generic drugs to avoid paying rebates to Medicaid.

Illegal Drug Promotion/Distribution: In July the U.S. Attorney’s Office in Los Angeles announced that Celgene would pay $280 million to settle allegations that it illegally promoted two cancer medications for uses not approved by the Food and Drug Administration. In September AmeriSourceBergen pled guilty and agreed to pay a total of $260 million to resolve criminal liability for its distribution of oncology supportive-care drugs from a facility that was not registered with the FDA.

Foreign Exchange Violations: In July the Federal Reserve Board fined the French bank BNP Paribas $246 million for failing to prevent its foreign exchange traders from engaging in market manipulation. In September the Fed fined HSBC $175 million for the firm’s unsafe and unsound practices in its foreign exchange trading business.

Consumer Protection: In August the Consumer Financial Protection Bureau fined American Express $96 million for discriminating against consumers in Puerto Rico, the U.S. Virgin Islands, and other U.S. territories by providing them with credit and charge card terms that were inferior to those available in the 50 states.

Price-Fixing: In May the Justice Department’s Antitrust Division announced that Bumble Bee Foods would pay a criminal fine of $25 million in connection with price-fixing of shelf-stable tuna.

Workplace Harassment: In August the Equal Employment Opportunity Commission announced that Ford Motor would pay up to $10.125 million to workers affected by sexual and racial harassment at two company facilities in the Chicago area.

Fair Labor Standards Act: In March the Labor Department’s Wage and Hour Division announced that the Walt Disney Company would pay $3.8 million in back wages to workers affected by violations of minimum wage and overtime rules.

Environmental Violation: In October Exxon Mobil agreed to pay a penalty of $2.5 million and spend $300 million on air pollution controls to resolve allegations that it violated the Clean Air Act by failing to properly operate and monitor industrial flares at its petrochemical facilities.

Note: Additional details on all these cases can be found in Violation Tracker. During 2017 my colleagues and I expanded the database to 300,000 entries with total penalties of $400 billion. Coverage now includes cases from more than 40 federal regulatory agencies and all divisions of the Justice Department dating back to the beginning of 2000.

Tracking U.S. Attorney Prosecutions

When Donald Trump fired dozens of U.S. Attorneys last March, there was speculation that the main objective was to remove some, especially Preet Bharara in Manhattan, who might be investigating the president’s business interests.

It remains to be seen what will happen with such probes, but the move highlighted the importance of the more than 90 federal prosecutors around the country who pursue a wide range of matters on behalf of the Justice Department.

The vast majority of those matters involve cases against individuals, especially those accused of drug offenses. Yet there is a significant subset of cases brought against for-profit corporations and non-profit entities. The U.S. Attorney’s Offices (USAOs) are a key front in the fight against corporate crime.

The latest expansion of Violation Tracker contains more than 1,000 USAO civil and criminal case records with corporate defendants dating back to 2000. Together they account for more than $18 billion in fines and settlements.

Assembling the list involved examining the press release archives of all the USAOs to identify those that announced the resolution of relevant cases. Among these are numerous high-profile prosecutions of major corporations, including three dozen with penalties of $100 million or more. This group is dominated by banks (such as JPMorgan Chase and Deutsche Bank) and pharmaceutical companies (such as Merck and opioid culprit Purdue Pharma).

Among the most common offenses on the full list are violations of the Controlled Substances Act (by drug wholesalers and pharmacies), the False Claims Act (by for-profit and non-profit hospitals), anti-money laundering laws (by banks and casinos), and environmental laws (by companies of many kinds).

The offenses with the biggest aggregate penalties are those involving the False Claim Act ($4.2 billion), fraud ($3.5 billion) and anti-money laundering laws ($2.7 billion).

While business cases were found at nearly all USAOs, they are far from evenly distributed. The offices with the largest number of corporate cases are: the Southern District of New York (Manhattan), the Eastern District of Pennsylvania (Philadelphia), the District of Massachusetts and the Eastern District of New York (Brooklyn).

In terms of penalty totals, the Southern District of New York is far and away the leader, with nearly $10 billion in fines and settlements. Massachusetts is second with $1.2 billion.

The USAO entries complement the cases already in Violation Tracker from the various divisions of Justice Department headquarters in Washington (Antitrust, Civil, Environment & Natural Resources, etc.). They also represent the last significant portion of federal enforcement activity to be added to Violation Tracker.

Our next objectives include the collection of data from state attorneys general and state regulatory agencies as well as private litigation, especially class actions (we’re already gathering information on major wage and hour collective action lawsuits).

We’ll also continue updating the data from the agencies already covered, and if any USAO (or other prosecutor) brings a successful case against the Trump Organization, we’ll be sure to add that to the Violation Tracker mix.

Portraying Corporate Villains as Victims

The world according to Trump is one of grievances and victimhood. During the presidential campaign he got a lot of mileage by appearing to empathize with the travails of the white working class and promising to be their champion in fighting against the impact of globalization and economic restructuring. At times he even seemed to be adopting traditional left-wing positions by criticizing big banks and big pharma.

Over the past ten months that stance has been steadily changing, and now the transformation is starkly evident. Trump is still obsessed with victimhood, but the focus on the legitimate economic grievances of white workers has been replaced by a preoccupation with the bogus grievances of large corporations. He would have us believe that today’s most oppressed group is Corporate America.

The desire to come to the rescue of big business is, when all the distracting tweets are put aside, at the core of the mission that Trump shares with Congressional Republicans: dismantling regulation and slashing corporate taxes.

It’s difficult to know whether this is what Trump planned all along and cynically manipulated his supporters or if he was turned by the Washington swamp he unconvincingly vowed to drain. In either event, his administration is engaging in one of the most egregious betrayals in American history.

Trump is not only neglecting the economic interests of his core supporters; he is siding with those who prey on them. This is playing out in many ways — from promoting anti-worker policies at the Labor Department to going easy on the drug companies responsible for the opioid epidemic — but one of the most revealing situations is taking place at the Consumer Financial Protection Bureau.

Putting aside the question of whether outgoing director Richard Cordray or President Trump has the right to name an acting director, the real issue is what is going to become of an agency that has been courageous and unrelenting in its enforcement actions against predatory financial firms.

The CFPB’s sin, from the point of view of the White House and Congressional Republicans, is that it has been doing its job too well. One of the dirty little secrets of Washington is that most regulatory agencies are in the pocket of the corporations they are supposed to police. Oversight is usually friendly or at least not onerous.

The CFPB was designed to, and in practice did, break that mold. It has not been chummy with the banks, payday lenders, mortgage brokers and credit agencies. As shown in Violation Tracker, since 2012 the CFPB has brought more than 100 enforcement actions and imposed more than $7 billion in penalties.

After he was named to take over the agency, Mick Mulvaney, who had long advocated its dismantlement, was quoted as saying that President Trump wanted him to get the CFPB “back to the point where it can protect people without trampling on capitalism.” The very thinly veiled message is that CFPB will cease to be an aggressive advocate for consumers, allowing banks and other financial companies to breathe easier.

Mulvaney was giving what amounted to a moral reprieve for all those companies pursued by the CFPB, including:

Wells Fargo, which was the target of one of the CFPB’s highest profile enforcement actions: the $100 million penalty imposed on the bank for secretly creating millions of extra accounts not requested by customers, in order to generate illicit fees.
Mortgage loan servicer Ocwen Financial, which the CFPB ordered to provide $2 billion in principal reduction to underwater borrowers, many of whom had been forced into foreclosure by Ocwen’s abusive practices.
Bank of America and FIA Card Services, which the CFPB ordered to provide $747 million in relief to card customers harmed by deceptive marketing of add-on products.
Corinthian Colleges Inc., the operator of dubious for-profit schools that was sued by the CFPB and ended up going out of business amid charges that it lured students into taking out private loans to cover expensive tuition costs by advertising bogus job prospects and career services.
Colfax Capital (also known as Rome Finance), which the CFPB ordered to pay $92 million in debt relief to some 17,000 members of the U.S. armed forces who had been harmed by the company’s predatory lending practices.
Or smaller operators such as Reverse Mortgage Solutions, which the CFPB fined for falsely telling customers, mainly seniors, that there was no risk of losing their home.

The Trump Administration has come to the rescue of financial scammers such as these by moving to defang the CFPB and restore the proper order of things in which it is not capitalists but rather consumers and workers who get trampled.

The Corporate Crook Conquest of the Executive Branch

It appears that the Trump Administration will not rest until every last federal regulatory agency is under the control of a corporate surrogate. The reverse revolving door is swinging wildly as business foxes swarm into the rulemaking henhouses.

Among the latest predators is Alex Azar II, who was just nominated by Trump to head the Department of Health and Human Services, a position Tom Price had to vacate amid the uproar over his excessive use of chartered jets for routine government travel. Until earlier this year Azar was the president of the U.S. division of pharmaceutical giant Eli Lilly.

Azar apparently shares Price’s abhorrence of the Affordable Care Act, but he also brings the perspective of a top executive for a drug company with a particularly sordid track record. For the past 40 years Lilly has been embroiled in a series of scandals involving unsafe products and the marketing of drugs for unapproved uses. Among the many cases were some that involved criminal charges.

In 1985 Lilly pleaded guilty to charges that it failed to notify federal regulators about deaths and illnesses linked to Oraflex. The company’s former chief medical officer entered a plea of no contest to similar individual charges. A Justice Department report put the number of deaths the company had covered up at 28.

In 2009 the U.S. Justice Department announced that Lilly had agreed to pay a $515 million criminal fine as part of the resolution of allegations relating to the illegal marketing of its schizophrenia drug Zyprexa.

The company has also faced bribery allegations. In December 2012 the U.S. Securities and Exchange Commission announced that Lilly would pay a total of $29.4 million to resolve charges that some of its subsidiaries violated the Foreign Corrupt Practices Act by making improper payments to win business in Russia, Brazil, China and Poland.

Violation Tracker’s tally on Eli Lilly amounts to $1.49 billion in penalties since 2000.

Meanwhile, the Senate has confirmed (along party lines) the Trump Administration’s nomination of coal mining executive David Zatezalo to head the Mine Safety and Health Administration. For seven years Zatezalo served as chairman of Rhino Resource Partners, where he clashed with MSHA over the company’s safety problems. The agency issued two rare “pattern of violation” warnings against the company. Violation Tracker contains 160 cases involving Rhino with total penalties of more than $2 million.

And given the headlong rush by Congressional Republicans to pass their tax legislation, it should be noticed that the Trump Administration’s interim head of the Internal Revenue Service (following the resignation of John Koskinen, who had been named by Obama) is David Kautter, who spent most of his career at the accounting firm Ernst & Young, which now prefers to be called EY.

Kautter was in charge of the tax compliance department at Ernst, which to a great extent meant helping clients dodge their fiscal obligations. In 2013 the firm had to pay $123 million to settle federal criminal charges of wrongful conduct in connection with illegitimate tax shelters (it was offered a non-prosecution agreement).

The phrase regulatory capture used to refer to tendency of agencies to gradually become more sympathetic to the needs of the industries they were supposed to oversee. Under Trump that process has been accelerated, with regulatory posts being given to individuals who are already corporate insiders or shills for the worst the business world has to offer. More than regulatory capture, it is the corporate crook conquest of the executive branch.

Tax Dodgers and Regulatory Scofflaws

Large corporations in the United States like to portray themselves as victims of a supposedly onerous tax system and a supposedly oppressive regulatory system. Those depictions are a far cry from reality, but that does not stop business interests from seeking to weaken government power in both areas.

This year has been a bonanza. The Trump Administration and Congressional Republicans have taken aim at numerous Obama-era regulatory initiatives and now are serving up a banquet of business tax breaks.

At the same time, corporations take matters into their own hands by using every opportunity to circumvent tax obligations and regulatory safeguards. The newly released Paradise Papers are just the latest indications of how large corporations such as Apple (and wealthy individuals) use offshore havens to shield billions of dollars in profits from taxation.

The Institute on Taxation and Economic Policy has published a list of more than 300 Fortune 500 companies that hold some $2.6 trillion offshore, thereby avoiding about $767 billion in federal taxes. Of these, ITEP has found indications that 29 corporations keep their holdings not only outside the United States but in tax haven countries where they pay very little in local taxes.

It should come as no surprise that quite a few of these tax dodgers also show up high on the list of regulatory scofflaws documented in Violation Tracker. In fact, one of the 29 is Bank of America, which has racked up $57 billion in fines and settlements since 2000 — far more than any other corporation. ITEP reports that B of A has $17.8 billion in unrepatriated income.

Also on the ITEP list is Citigroup, with $47 billion in unrepatriated income. It ranks 5th on the Violation Tracker list, with more than $16 billion in fines and settlements. Wells Fargo has $2.4 billion in unrepatriated income and $11 billion in penalties, but that latter figure is likely to rise as various cases relating to the bank’s bogus account scandal are resolved.

Banks are not the only overlaps between the two lists. For example, pharmaceutical company Amgen has $36 billion in unrepatriated income and $786 million in penalties.

Major regulatory violators can also be found on the larger list of corporations that are known to have large offshore holdings but do not disclose enough information to allow ITEP to determine whether those holdings are in tax havens. Chief among these are other pharmaceutical giant such as Pfizer ($197 billion offshore and $4.3 billion in penalties), Johnson & Johnson ($66 billion offshore and $2.5 billion in penalties), Merck ($63 billion offshore and $2 billion in penalties) and Eli Lilly ($28 billion offshore and $1.4 billion in penalties).

Also on the list are petroleum majors such as Exxon Mobil ($54 billion offshore and $714 million in penalties) and Chevron ($46 billion offshore and $578 million in penalties).

The mindset that prompts corporate executives to use international tax dodging techniques seems to be related to the one that encourages them to break environmental, consumer protection and other laws at home. The logical course of action would be to tighten both tax and regulatory enforcement, but those currently in charge of federal policymaking instead want to make it even easier for large corporations to make out like bandits.

Bizarro-World Worker Populism at Trump’s OSHA

The bizarro-world worker populism of Donald Trump strikes again. The White House recently nominated Scott Mugno to be the Assistant Secretary of Labor in charge of the Occupational Safety and Health Administration. Mugno (photo at left) is not a worker safety advocate, occupational health scientist or a union official. Instead, he is a corporate safety executive at the shipping giant FedEx.

Data in Violation Tracker shows since 2000 FedEx has racked up $335,853 in OSHA penalties (counting only those fines of $5,000 or more designated as serious, willful or repeated). This total is the 208th largest among the 1,777 parent companies in Violation Tracker with OSHA fines.

While FedEx may not be at the very top of the OSHA penalty list, it does have some significant safety blemishes on its record. In 2014, for example, OSHA proposed a fine of $44,000 against the company for failing to properly guard a conveyor belt at its facility in Wilmington, Massachusetts. In its press release announcing the proposed penalty (which FedEx managed to get deleted), the agency noted that the company had previously been cited for the same issue at two other facilities.

Moreover, FedEx in general and Mugno in particular have tried to weaken OSHA oversight. In a 2006 presentation at a U.S. Chamber of Commerce event, Mugno argued that workers needed to take more responsibility for health and safety issues, conveniently ignoring the fact that they rarely have the autonomy to make meaningful changes in workplace conditions.

Another sign of Mugno’s orientation is the warm reception his nomination has received from business groups such as the Chamber and the American Trucking Association. At the same time, public interest groups have expressed concern. Public Citizen came out in opposition to the nomination, citing Mugno’s 2006 remarks and arguing that his “stance on laws and regulations do not mesh with leading an agency tasked with writing rules to ensure safe and healthy working conditions.” The Center for Progressive Reform posted a long list of questions that need to be put to Mugno.

The Center, by the way, has just introduced a Crimes Against Workers Database that compiles information on state-level criminal actions against companies and their executives implicated in serious workplace accidents. (I’m pleased to report that the database includes links to Violation Tracker data, and I plan to reciprocate.)

It was to be expected that Trump, who repeatedly bashed the EPA during the presidential campaign, would have named a climate change denier and regulation hater like Scott Pruitt to head that agency. Yet Trump did not carry on a similar tirade against OSHA, perhaps realizing that many of his blue-collar supporters were all too aware of workplace hazards that needed the agency’s oversight.

If Trump were any kind of real populist, he could have named a true worker safety advocate to OSHA without breaking any campaign promises. Instead, he brought in a business apologist who will pursue the Chamber agenda and raise the risk level for millions of American workers. The Trump corporate takeover marches on.

Unfettered Corporate Power

Once upon a time, there was a debate on how best to check the power of giant corporations. Starting in the Progressive Era and resuming in the 1970s with the arrival of agencies such as the EPA and OSHA, some emphasized the role of government through regulation. Others focused on the role of the courts, especially through the kind of class action lawsuits pioneered by lawyers such as Harold Kohn in the 1960s.

When regulators were seen as too aggressive, business apologists pushed back by arguing that corporate misconduct should be addressed through litigation. When class actions grew more effective, those apologists started lobbying for tort reform and arguing that regulatory agencies (especially those dominated by industry) were the better forum.

This year, amid a supposed populist upsurge, that debate is dying out. The Republican-controlled Congress and the White House are undermining both regulation and litigation. Virtually all legislative “accomplishments” since Inauguration Day have consisted of Congressional Review Act maneuvers to roll back business regulations. Now, with the Senate’s move to kill the Consumer Financial Protection Bureau’s restriction on forced arbitration, Congress has used the same device to reduce the ability of consumers to seek redress through the courts — what Sen. Elizabeth Warren aptly described as “a giant wet kiss to Wall Street.”

The result of these moves is that big business is increasingly being allowed to operate with no effective controls at all. This unilateral disarmament is taking place when corporate misconduct is rampant. Among the companies that will benefit from the arbitration move are the likes of Wells Fargo and Equifax, whose willingness to mistreat customers has been truly astounding.

We should be careful, however, not to overstate the effectiveness of damage awards in class action lawsuits in changing corporate behavior. It’s unfortunately true that large corporations have come to regard substantial monetary settlements as an acceptable cost of doing business.

That’s true both of private litigation and cases brought by regulatory agencies and the Justice Department. As shown in Violation Tracker, 40 corporations have paid $1 billion or more in fines and settlements. Seven of those have paid $10 billion or more, including all the giant national banks: Bank of America ($57 billion), JPMorgan Chase ($29 billion), Citigroup ($16 billion) and Wells Fargo ($11 billion).

These amounts have involved scores of different cases dating back to 2000. In other words, the banks are repeat violators that are willing to pay out large sums in order to continue doing business more or less as usual. More class action lawsuits are unlikely to change this dynamic.

I believe that banks and other large corporations should continue to face heavy financial penalties for their misconduct, but it has become clear that these penalties alone are not going to put an end to the corporate crime wave. It’s time to go beyond damages in addressing the damage caused by these companies.