January 19, 2021

Volume XI, Number 19

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January 18, 2021

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Judge Rules OSHA Can Release Employer Injury Records

On June 4, 2020, Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California ruled in The Center for Investigative Reporting v. Department of Labor that employers’ injury and illness records, submitted to the federal Occupational Safety and Health Administration (OSHA), are not confidential and can be released if requested through the Freedom of Information Act (FOIA).

Currently, employers must post their OSHA Form 300A summaries (which contain a summary of each establishment’s total number of job-related incidents for the preceding calendar year) in the workplace from February through April.  Additionally, under 29 C.F.R. § 1904.41(a)(1), employers with 250 or more employees and those in certain industries with 20 or more employees must electronically submit Form 300A summaries each year to OSHA.

Judge Ryu rejected the Department of Labor’s (DOL) argument that these records were exempt from disclosure under the FOIA as trade secrets and commercial or financial information, which is privileged or confidential. This decision seems based at least in part on the fact that in 2016, OSHA stated its intent to post the information online, and reiterated that all employers must annually post the Form 300A where all employees can see it. Judge Ryu found that the DOL failed to establish that the Form 300A information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.

Practical Takeaways

Does this sound familiar? If so, that is because the ruling harkens back to the controversial “regulation by shaming” initiative introduced in 2013 by then-OSHA Assistant Secretary Dr. David Michaels. Under this initiative, the agency circulates antagonistic press releases immediately after issuing unproven (and often contested) citations, accusing employers of being bad actors and trying cases in the press.

Judge Ryu’s decision means that employers may want to be prepared to address or respond to questions from employees, the media, or other third parties about the content of their Form 300A summaries. In addition, employers may want to be prepared for what disclosure may imply about their workplace safety record.

One problematic aspect of this decision, and the “regulation-by-shaming” initiative as a whole, is that the stated benefit of this approach is limited. Indeed, the ruling incorrectly suggests that every incident recorded on an OSHA Form 300A summary is somehow a violation of the Occupational Safety and Health Act (OSH Act). Injuries sometimes occur because employees ignore established safety procedures or their safety training. Employee advocates hailed the ruling, asserting that revealing injury and illness records could motivate more employers to improve safety and provide workers with a deeper understanding of the risks associated with their jobs, and might help hold companies accountable. The vast majority of employers, however, are just as concerned and engaged in the safety and well-being of their employees as any governmental agency or employer advocate. This approach to enforcement of the OSH Act would appear to be a gift to union organizers and the plaintiffs’ bar.

What Does the Future Hold?

Judge Ryu instructed the parties to submit a joint proposed order. It may be, however, that the DOL appeals the judge’s decision. Other interested parties—including employer advocacy groups—could seek to intervene in the case.

An appeal might encounter resistance in the generally employee-friendly U.S. Court of Appeals for the Ninth Circuit. But this remains to be seen.

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© 2020, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume X, Number 168
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About this Author

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Bindu’s practice focuses on labor and employment law, with an emphasis on traditional labor matters including representation campaigns and unfair labor practice charges, as well as workplace safety and health law, assisting employers in enforcement matters before the Occupational Safety and Health Review Commission.

The son of musicians and educators, Bindu was born and raised in Colima, a small town on the Pacific coast of Mexico, where he was home-schooled. In fact, his first day ever in a school classroom was when he began college. While an undergraduate, Bindu played guitar in a...

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John Artz, Ogletree Deakins Law Firm, Employment Law Attorney
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For almost 35 years, John Artz has been helping employers with personnel and policy issues and government regulation.  He concentrates his practice in employment and labor law, with a special emphasis on workplace safety and health (OSHA, safety, workplace violence), along with both counseling and litigation regarding gender, disability and racial discrimination (and workplace harassment), terminations, wrongful discharge, wage and hour, and workers' and unemployment compensation.  He regularly advises employers with respect to applications and hiring, human relations...

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