By Benjamin D. Briggs, Brent I. Clark, Mark A. Lies, II, Adam R. Young, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Business organizations have once again brought suit against OSHA’s new electronic reporting and retaliation rule, arguing that the proposed online database violates employers’ First and Fifth Amendment rights and oversteps OSHA’s authority.

The National Association of Home Builders of the United States, the U.S. Chamber of Commerce, and other industry groups have sued Occupational Safety and Health Administration to prevent the implementation of its OSHA’s new injury and illness electronic reporting rule, arguing that OSHA’s proposed online database violates employers’ First and Fifth Amendment rights, is arbitrary, capricious, and otherwise contrary to law, and oversteps OSHA’s authority.  National Association of Home Builders of the United States et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).

With regard to the new injury and illness reporting requirements, the industry groups’ Complaint alleges that OSHA “lacks statutory authority to create an online database meant for the public dissemination of employers’ injury and illness records.” In the Preamble to the Final Rule, OSHA premised its authority to issue the Rule on Sections 8 and 24 of the OSH Act. But neither of those sections authorizes OSHA to publicly disseminate reports collected under the Rule. The Plaintiffs contend that the Rule is arbitrary and capricious because OSHA has “changed its position on the confidentiality of the information it is demanding companies produce, without providing a reasoned explanation for that change.”  Moreover, Plaintiffs contend that the new Rule violates the employers’ First and Fifth Amendments rights by compelling them to submit confidential and proprietary information for publication on a publicly available online database.

The Complaint also takes aim at the new rule’s anti-discrimination and anti-retaliation provision. To that end, the Complaint alleges that because the Final Rule created a new scheme to prohibit discrimination and retaliation against employees, OSHA exceeded its statutory authority.  Specifically, the Agency “contravene[d] the express and sole statutory scheme established by Congress in Section 11(c) of the OSH Act to provide redress for retaliatory actions by employers against employees.”

We had previously blogged about the substance of OSHA’s new rule as it applies to drug-testing, retaliation claims, and accident reporting. In immediate response to the new rule, the National Association of Manufacturers (NAM) and others brought a suit to enjoin the rule, arguing that OSHA’s new rule went too far. TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). Despite the pending lawsuit, OSHA has issued an interpretative guidance on the new rule, and the rule went into effect as planned on December 1, 2016.

The TEXO ABC Court’s decision denied the Plaintiffs’ Motion for Preliminary Injunction. The Court concluded that the Plaintiffs had not met their burden of establishing that they were likely to suffer irreparable harm. Slip Op. 7.  The TEXO ABC preliminary injunction denial, though, was not on the merits of the case. However, it is unclear whether the TEXO ABC Plaintiffs will continue to pursue that litigation given the Court’s denial of the preliminary injunction.

While it remains to be seen how these challenges will fare, the business community has shown a willingness to strongly oppose the new rule — a rule that has been widely criticized as emblematic of regulatory overreach.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the OSHA Compliance, Enforcement & Litigation Team.