Safety in Name Only

Obama injury disclosure rule another victory for unions, trial lawyers

OSHA inspectors / AP
May 12, 2016

American businesses are up in arms about a new labor rule that will allow the federal government to publish sensitive safety data on a public database, potentially fueling union organizing and frivolous lawsuits.

The Occupational Safety and Healthy Administration issued a rule on Wednesday that will require companies to turn over all records of injuries that happen on the job. Companies have long been required to keep records of work-related incidents and make the data available to OSHA in the event of a complaint or investigation.

The new rule will force employers to preemptively turn over those records each year. The agency says those company and industry-wide statistics will then be published on a public website, though it pledged to protect workers’ personal information. The new rule is expected to cost employers $15 million per year.

"The final rule does not add to or change any employer’s obligation to complete, retain, and certify injury and illness records," the new rule says. "The only changes are that, under certain circumstances, employers will be obligated to submit information from these records to OSHA in an electronic format and to assure that employees have, and understand they have, a right to report injuries and illnesses without fear of discrimination."

David Michaels, the assistant secretary of labor for occupational health and safety, said that the new rule would "nudge" companies to oversee safer workplaces through accountability. He said the data also would help OSHA target potential offenders.

"Our new rule will nudge employers to prevent work injuries to show investors, job seekers, customers and the public they operate safe and well-managed facilities," he said in a release. "Access to injury data will also help OSHA better target compliance assistance and enforcement resources, and enable 'big data' researchers to apply their skills to making workplaces safer."

Business groups criticized the rule, saying it would do little to improve worker safety. Publicizing injury numbers without context can give the public a false sense of the danger inherent in certain professional fields, according to the Associated Builders and Contractors.

"OSHA created a rule that does nothing to achieve its stated goal of reducing workplace injuries and illnesses and ignored the concerns from industry that this rulemaking will have unintended negative consequences," Greg Sizemore, the group’s vice president, said in a release. "In departing from its current ’no fault’ recordkeeping system, 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."

The Coalition for Workplace Safety, an umbrella group composed of several trade groups from the construction, retail, and textile industries, among others, said that the way the "fatally-flawed" rule was written "will only result in more regulatory burden." The coalition warned that companies will have to turn over proprietary information—such as the number of hours employees work—that could by used by competitors to shape future contract bids. The coalition also said the rule does little to distinguish between work-related and non-work-related injuries that take place at the office.

"The CWS is especially concerned about the damage that could come from the disclosure of sensitive and proprietary information – which companies go to great lengths to protect," the coalition said in a release. "Just as troubling will be the mischaracterization that will result when incidents, such as bee stings, slips and falls, and even heart attacks that do not reflect an employer’s safety culture are posted."

Organized labor groups praised the rule as a step toward transparency.

"Most workplace injury records have only been available at the workplace, making it impossible to know which employers have bad or good injury records," AFL-CIO President Richard Trumka said in a release. "This new transparency will assist OSHA and workers in identifying hazardous workplaces. In addition, employers will be able to compare their records with other employers in their industry and public health officials and researchers will be able to identify emerging trends."

The agency expects the new rule to cost employers $15 million per year to hire new record-keeping professionals.

There are other hidden costs, according to Chamber of Commerce Vice President Randy Johnson. Data provided by companies could be used to fuel union organizing or encourage lawyers to pursue frivolous legal action in industries "falsely branded as unsafe." It will empower antagonists to employers, Johnson said, rather than promote safety.

"Among the misuses of these records will be unions mischaracterizing employers in organizing and corporate campaigns, and trial lawyers bringing frivolous lawsuits," Johnson said in a release. "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 new rule will go into effect in January 2017.