Recording injuries and illnesses of workers is nothing new to high-hazard industries. But a new rule by the Occupational Safety and Health Administration (“OSHA”) has introduced another dimension to an otherwise routine task: public shaming.
OSHA has long publicized its enforcement actions, calling out companies cited for the heftiest fines on its website, electronic newsletter and news releases. OSHA handpicks its biggest targets and publicizes citations before they are adjudicated, but rarely walks the story back when a judge finds the employer was never at fault.
Historically, smaller targets generally escaped notice. Less catastrophic incidents and less-recognizable corporate names rarely made news, allowing cooler heads to correct workplace hazards outside the media glare. Most data OSHA collected were released in aggregate, helping industries address hazards globally, while allowing individual companies to address particular concerns in quieter corners.
Those days are done.
OSHA made a big bang when it directed companies to report their records electronically, and decided to make them publicly available on the Internet. Now, unions, members of the press, industry competitors and anyone else with a company in their sights can access the injury and illness data of any employer at any time.
Assistant Secretary of Labor for Occupational Safety and Health David Michaels chose this tactic to “nudge” employers by outing their injuries in the public limelight. Over 30,000 covered employers with 250 or more employees must start making this information by July 1, 2017. Nearly a half million smaller businesses with at least twenty employees must do so by July 1, 2018. The result? About three million incidents reported in over a million workplaces will soon become public information.
Labor organizations have praised OHSA’s move, such as the AFL-CIO, which seeks “to know which employers have bad or good injury records.” The United Steelworkers commended the plan, as it would enable union officials to “take action to prevent future injuries.”
On the other hand, business groups point out that OSHA lacks statutory authority to compel submission of the data or to make it publicly available. Further, they object to the tactic of “shaming employers,” which could have the unintended effect of discouraging some employers from reporting incidents.
The Chamber of Commerce noted that the rule “will lead to sensitive employer data being published without context or explanation” and “will lead to employers being falsely branded as unsafe.” The Chamber fears that unions will use the records in “mischaracterizing employers in organizing and corporate campaigns, and trial lawyers bringing frivolous lawsuits. Organized labor – who asked for this regulation – will exaggerate minor incidents to create the impression of an unsafe workplace. Trial lawyers will leverage these files against employers to extract settlements.”
The Associated Builders and Contractors also foresees bad results: “OSHA has empowered itself to disseminate records and data to the public that fails to show the complete narrative of a company’s safety record or its efforts to promote a safe work environment. OSHA will give competitors undue access to business processes that should remain confidential.”
Safety organizations identified similar problems. Michael Belcher, President of the American Society of Safety Engineers expressed concern that the rule “cannot advance worker safety as well as OSHA hopes. The rule’s emphasis on data collected after injuries and fatalities occur is a step backward for safety professionals who work hard to move organizations toward measuring leading indicators, which better indicate how to avoid injuries and illnesses.”
As a Labor Commissioner, I avoided needless publicity over workplace incidents, in part, because they don’t tell the whole story. Trotting employers out before getting the whole story can demoralize potential partners, and lead to more litigation. Stay tuned.
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Courtney Malveaux is a regulatory, government affairs and employment attorney who represents employers in OSHA citations at ThompsonMcMullan, P.C. in Richmond, Virginia. An experienced litigator, he served as Virginia’s Labor Commissioner through October 2013, and as President of the National Association of Government Labor Officials. Malveaux represents industrial employers on the Virginia Safety and Health Codes Board, and serves as Counsel to the Safety and Health Subcommittee of the Virginia Manufacturers’ Association. He can be reached at (804) 698-6242 or at CMalveaux@t-mlaw.com.
