By Mark A. Lies, IIAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A recent Eastern District of Wisconsin case held that an OSHA 11(c) retaliation claim will survive summary judgment where the employer failed to comply with its own investigation procedures.

In Acosta v Dura-Fibre, No. 17-C-589, 27 OSHC 1179 (ED Wis. May 30, 2018), under the employer’s, Dura-Fibre, LLC’s (Employer), Accident Reporting/Investigation Plan (Injury Reporting Policy), if an employee is injured or almost injured at work, he must report the injury or “near miss.”  The Employer instituted the Injury Reporting Policy to emphasize timeliness in reporting injuries and to create a “near miss” program to increase reports of unsafe acts that did not result in injury.   The Injury Reporting Policy required that an employee notify a supervisor of an accident or “near miss” as soon as possible, or by the end of the employee’s shift.  The Injury Reporting Policy defined accident as “any occurrence that led to physical harm or injury to an employee and/or led to damage of company property” and near miss as “any occurrence that did not result in an accident but could have.”

The Employer required that employees report all injuries, even if the employee did not consider the injury to be serious.  Any employee that failed to report an accident or near miss in a timely manner could be subjected to discipline up to and including termination.  After the company’s assessment of the injury report, a “Safety Incident Report” would be prepared that determined whether the employee should receive disciplinary points in accordance with the Employer’s 24-point disciplinary program.  Under the disciplinary program, employees may be assigned a designated number of points for violations of the company’s rules and policies, such as failing to report an injury to a supervisor by the end of his shift, failing to use safety equipment, or committing an “unsafe act.”

The Injury Reporting Policy does not, though, define the phrase “unsafe act.” With the uncertain definition of the term “unsafe act” and the disciplinary points employees could receive for committing an “unsafe act,” the Secretary argued that employees were naturally reluctant to report injuries or illnesses they sustained.

The Court noted that as such, employees who suffered injuries on the job found themselves in a classic “catch 22”: “if they are injured at work, they must report the injury to a supervisor or face discipline, but if they do report an injury, management may well conclude the injury resulted from their own unsafe act for which they will also face discipline. Either way, the employee risks discipline.”  It is in this context that this claim arises.

The Secretary asserted that the Employer violated section 11(c) the OSH Act when it retaliated against the Employee by assessing him disciplinary points after he reported injuries on two separate occasions, and then ultimately terminated him under its disciplinary policy.

The Employer did not dispute that the Secretary had satisfied the first and second elements of the prima facie case.  The Employee engaged in protected activity when he reported to company management that he injured his ankle and another employee injured his shoulder. The Employee suffered three adverse actions in the form of disciplinary points for the late reporting of the other employee’s injury, and for engaging in an unsafe act in relation to his own injury, as well as termination of his employment.

The Court found sufficient evidence of pretext from two sources.  First, the Company did not discipline employees who reported “unsafe acts” relating to near misses.  Accordingly, the Court concluded that injured employees were allegedly more likely to be disciplined and thereby deterred from reporting .  Second, the Court noted that the Employer failed to follow its own accident investigation procedures.  The Court found a  technical “apparent deviation” from the procedure enough to be a triable issue, and denied summary judgment.  The case will proceed to trial.

Accordingly, employers need to maintain reporting policies with regard to all unsafe acts, near misses, and accidents.  Employers must consistently investigate accidents and enforce all safety rules.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Teams.

By Joshua M. Henderson

Seyfarth Synopsis: Cal/OSHA regulations are enforced by a state agency in administrative litigation. A new Supreme Court decision, Solus Industrial Innovations, Inc. v. Superior Court, allows employees allegedly suffering injuries caused by Cal/OSHA violations to sue for unfair business practices.

The Facts

A water heater explosion at Solus Industrial Innovations, Inc. left two employees dead. After an investigation, the Division of Occupational Safety and Health issued five citations against Solus for alleged violations of Cal/OSHA regulations. Solus appealed the citations to the Cal/OSHA Appeals Board.

Meanwhile, the California Bureau of Investigations (BOI) conducted a separate investigation, as it must when an employee is killed at work. The BOI forwarded its investigation results to the Orange County district attorney (DA), who then filed criminal charges against the plant manager and maintenance supervisor for felony violations of the Labor Code.

The DA also filed a civil action against Solus, claiming that Solus had violated California’s Unfair Competition Law (UCL) and Fair Advertising Law (FAL). These claims alleged that Solus, by maintaining an unsafe work environment, had engaged in unfair and unlawful business practices, while also committing false advertising by making “numerous false and misleading representations concerning its commitment to workplace safety and its compliance with all applicable workplace safety standards,” which allowed it to attract and retain customers and employees.

Solus demurred to the DA’s lawsuit, which was overruled. On an expedited appeal, the Court of Appeal ruled in favor of Solus. The Court of Appeal reasoned that the federal Occupational Safety and Health Act (OSHA) preempted UCL and FAL claims arising from alleged Cal/OSHA violations. The DA sought review by the California Supreme Court.

The Supreme Court’s Decision

A unanimous California Supreme Court reversed. The Court held that federal OSHA did not preempt the DA’s civil action against Solus. Rather, California law preempted federal OSHA—a sort of reverse preemption.

Understanding the Supreme Court’s holding requires a brief summary of federal OSHA’s relationship with Cal/OSHA. Federal OSHA occupies the field of workplace safety and health, but permits states to create their own regulatory plans subject to federal review and approval. California has had such a federally approved state plan since 1973. Under this system, federal OSHA provides a regulatory “floor” under which state plans may not fall. But states may enact broader workplace safety protection than found under federal OSHA.

The Supreme Court rejected Solus’s argument that federal law explicitly or impliedly preempted California law except for provisions of the federally approved state plan. Federal OSHA identifies specific areas (such as workers’ compensation laws) that are not preempted. Yet it does not identify precisely what is preempted. According to the Supreme Court, federal OSHA, by allowing states to provide broader protections, anticipates that states may use enforcement mechanisms other than administrative litigation under the state plans to further their aims. Civil litigation under state law, according to the Court, is not foreclosed by the federal statutory scheme.

The Supreme Court noted that UCL and FAL actions may be brought by both government officials and by persons who have suffered an “injury in fact.”

What Solus Means For Employers

While California law (specifically, the Private Attorneys General Act (PAGA)) previously has allowed claims against employers based on alleged workplace safety violations, PAGA poses several obstacles to ultimate recovery, including exhaustion of administrative remedies and, for some alleged violations, allowing an employer thirty-three days to cure the violations.

Those obstacles do not exist for would-be plaintiffs in UCL and FAL litigation. Accordingly, Solus may result in a spike in workplace safety and health litigation against employers, for several reasons. First, Solus does not require a final order of the Cal/OSHA Appeals Board affirming the underlying administrative citations. Indeed, though the Division had filed citations against Solus, the case was put on hold. During a BOI investigation and any ensuing prosecution, litigation between the Division and an employer concerning administrative citations is held in abeyance. This point raises the possibility that an employer may defeat Division citations and criminal charges, yet still be subject to civil claims.

Second, nothing in the California Supreme Court’s decision suggests that administrative citations are a prerequisite to filing a UCL or FAL claim. Employees may attempt to establish injury in fact in litigation without resorting to filing an administrative complaint with the Division. By contrast, PAGA requires notice to the Division, along with “the facts and theories to support the alleged violation.” Although damages are not available under the UCL, restitution and injunctive relief are. An employee must prove some kind of economic injury in these cases, which may make it more difficult to recover restitution, but may lead to injunctions against employers.

Third, while the Division has six months to issue a citation, the statute of limitations is four years for a UCL claim and three years for a FAL claim. Therefore, the “repose” promised by a six-month administrative limitations period may be shattered by an employee civil action filed long thereafter.

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

By James L. Curtis, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: As expected, OSHA has appealed an ALJ ruling that severely limits OSHA’s “controlling employer” enforcement policy. Acosta v. Hensel Phelps Constr. Co., No. 17-60543 (5th Cir. 8/4/17).

This case involves an unprotected excavation at a construction site that both parties agreed was in in violation of OSHA’s trenching standards.  The Respondent was the general contractor on the construction project with overall control and responsibility for the worksite.  The Respondent also had management employees on site who were present at the excavation who “could have easily” prevented the subcontractor’s employees from working in the unprotected excavation but did not do so.  However, the Respondent did not have any of its own employees who were exposed to the hazardous excavation.

OSHA cited Respondent as a “controlling employer” under OSHA’s multi-employer policy and longstanding Occupational Safety and Health Review Commission precedent that has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

Nonetheless, while the Commission has upheld “controlling employer” citations based on exposure to another employer’s employees, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  Accordingly, rather than follow Commission precedent and uphold the citation, the ALJ found that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).  Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition,”  and vacated the citation.

OSHA is appealing the ALJ’s decision to the 5th Circuit hoping that the 5th Circuit will reverse its 1981 holding in Melerine v. Avondale Shipyards, Inc.   This case represents a serious threat to OSHA’s multi-employer policy.  If upheld by the 5th Circuit, OSHA’s “controlling employer” policy may be in jeopardy. We will keep our readers apprised as this case develops.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, Brent I. ClarkJames L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000042612884_MediumSeyfarth Synopsis: In an interesting outcome, an OSHRC Administrative Law Judge recently vacated a citation to an alleged “controlling employer” based on 5th Circuit precedent – despite being contrary with OSHA policy and other OSHRC precedent.

A recent Occupational Safety and Health Review Commission (Commission) Administrative Law Judge, Brian A. Duncan’s decision, in Hensel Phelps Construction Co., Docket No. 15-1638 (April 28, 2017), considered whether Respondent, as the general contractor for the project, can be held liable for the violation as a “controlling employer.”  Additionally, the parties argued and stipulated that under 5th Circuit case law, that OSHA’s “controlling employer” policy has been invalidated and is unenforceable.

The Commission has held that “an employer who either creates or controls the cited hazard has a duty under § 5(a)(2) of the Act, 29 U.S.C. § 666(a)(2), to protect not only its own employees, but those of other employers ‘engaged in the common undertaking’.” McDevitt Street Bovis, Docket No. 97-1918 (Sept. 28, 2000).  “An employer may be held responsible for the violations of other employers ‘where it could reasonably be expected to prevent or detect and abate the violations due to its supervisory authority and control over the worksite.”’ Summit Contractors, Inc., Docket No. 05-0839 (Aug. 19, 2010).

In the facts in this case, according to the ALJ, the Respondent had overall construction management authority on the project.  Pursuant to its contract with the City of Austin, and as the jobsite general contractor, Respondent also had authority through its officials and agents to stop construction work performed by subcontractors when hazardous conditions were found, and to prevent them from continuing work due to safety concerns.  Respondent’s onsite safety managers had previously exercised control over jobsite safety by stopping subcontractor work, and by removing subcontractor employees from the jobsite.  In fact, “Respondent’s Area Superintendent … and … Project Superintendent … were actually present when CVI employees were performing work in the unprotected area of the excavation.”

However, this violation occurred at a jobsite in Austin, Texas, which was under the jurisdiction of the U.S. Court of Appeals for the 5th Circuit.  In 1981, the Fifth Circuit, according to the ALJ, ruled that the OSH Act, its legislative history, and implemented regulations, serve to protect “an employer’s own employees from workplace hazards.”  ALJ’s emphasis.  Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981).  In this case, the ALJ clarified that that “where it is highly probable that a Commission decision would be appealed to a particular circuit, the Commission has generally applied the precedent of that circuit in deciding the case – even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Service, Docket No. 96-1719 (Mar. 16, 2000).

Therefore, the ALJ ruled that “applying 5th Circuit precedent, Respondent cannot be liable for a violation of the Act based solely upon a subcontractor’s employees’ exposure to the condition.”  The citation was vacated.

For employers this outcome raises a clear example of where, if issued an OSHA citation, such as under OSHA’s multi-employer citation policy, it is important to review the citation from the big picture, including the law, regulations, and all case law precedent that might impact the citation on the particular employer.  The jurisdiction in which the case arises matters.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis

iStock_000004162096LargeSeyfarth Synopsis: OSHA has announced that it will be proposing a delay to the July 1, 2017 deadline for certain employers to electronically file injury and illness data.

Under OSHA’s revised recordkeeping rules certain employers are required to electronically file injury and illness data with OSHA.  As we noted previously in our blog, the rule became effective in January, 2017 and required employers to electronically file the information by July 1, 2017.  However, for months the regulated community has been asking how it is expected to accomplish this electronic filing when OSHA has failed to set up a website capable of accepting the submissions.

OSHA has now posted a notice on its website acknowledging that “OSHA is not accepting electronic submission of injury and illness logs at this time and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 form 300A electronically.”

It is unclear how long of a delay OSHA will seek and whether other modifications will be made that would impact the new anti-retaliation provisions.  We will keep readers posted.

For more information on this or any related topic please contact the author, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

iStock_000009254156LargeSeyfarth Synopsis: OSHA has rescinded its midnight rule, adopted by the outgoing Administration in December 2016 which attempted to end run the federal court’s decision in Volks that limits the statute of limitations on injury recordkeeping violations to six months.

Prior to 2012, OSHA’s longstanding position was that an employer’s duty to record an injury or illness continues for the full five-year record-retention period.  However, in 2012, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, 675 F.3d 752 (DC Cir. 2012), rejecting OSHA’s position.

The AKM or “Volks” decision found that the standard six month statute limitations applies to an employer’s duty to record work related injuries and illnesses on the OSHA 300 log. The Volks decision effectively ended OSHA practice of issuing citations for alleged recordkeeping errors going back five years.  This decision did not sit well with OSHA.  In December, 2016 OSHA announced a new final rule that OSHA claimed “clarifies” an employer’s “continuing” obligation to make and maintain an accurate record of each recordable injury and illness for a full five years.

As we previously blogged, OSHA’s rule was a clear attempt to avoid the D.C. Circuit‘s ruling.  In response, Congress passed a Resolution to block OSHA’s rule, stating that “such rule shall have no force or effect.”  Agreeing with Congress, the White House issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

The December midnight rule has now been rescinded by OSHA, effectively acknowledging that the six month statute of limitations applies, not the five year statute of limitations.  82 Fed. Reg. 20548 (May 3, 2017).

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Erin Dougherty Foley, Patrick D. Joyce, and Craig B. Simonsen

Couple driving drunk with the carSeyfarth Synopsis:  In a recent Eleventh Circuit opinion, the Court found that the insurance carrier was responsible, under Georgia law, for the harm caused by an intoxicated employee’s vehicle usage. Great American Alliance Ins. Co. v. Anderson, No. 15-12540 (11th Cir., February 8, 2017)..

In this case, the Court explained, the appellant was involved in a car accident with an intoxicated driver who was driving a company vehicle with his employer’s permission. “After a jury found the driver liable and awarded the appellant one million dollars, the employer’s insurance company, the appellee, filed this suit for a declaration that the driver was not a permissive user – and thus not covered under the applicable insurance policies – because he broke internal company policies.”

The Court found that the Georgia Supreme Court has held that inquiries into permissive use should extend only to whether a vehicle is used for an approved purpose. Citing to Strickland v. Georgia Cas. & Sur. Co., 224 Ga. 487, 162 S.E.2d 421 (Ga. 1968).  “A subsequent decision by the Georgia Court of Appeals, however, held that a company’s internal rules can govern the scope of permissive use, and that violations thereof can negate an individual’s status as an insured.” See Barfield v. Royal Ins. Co. of Am., 228 Ga. App. 841, 492 S.E.2d 688 (Ga. Ct. App. 1997).  Because the District Court followed Barfield, and thereby narrowed the scope of permissive use beyond what was permitted by Strickland, The Court found that it erred, and reversed and remanded.

Strickland, the Eleventh Circuit found, holds that the only inquiry relevant to determining the scope of a generic permissive use clause is whether a vehicle is used for an approved purpose. See 224 Ga. at 492, 162 S.E.2d at 425. In that case the Georgia Supreme Court found that where a vehicle is used for an approved purpose, an employee’s violations of explicit company policies do not foreclose status as a permissive user. See id. at 492, 162 S.E.2d at 425. “We conclude that the “actual use” contemplated and intended by the policy refers only to the purpose to be served and not the operation of the vehicle.”  The Court concluded that the purpose test set forth in Strickland controlled the inquiry into permissive use. Because the District Court extended its analysis further (to include Barfield), it was reversed.

This opinion, for Georgia employers especially, but for employers generally as well, raises important concerns about employee vehicle usage. Employer liability for employee vehicle usage can come from numerous circumstances, but most generally including injuries or accidents caused by employees acting within the scope of their employment.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment Group, Workplace Safety and Health (OSHA/MSHA) Team, or the Workplace Policies and Handbooks Teams.

By Brent I. Clark, James L. CurtisAdam R. Young, and Craig B. Simonsen

iStock_000004162096LargeSeyfarth Synopsis: A Texas federal court won’t decide the legality of OSHA’s rule regarding the “Tracking of Workplace Injuries and Illnesses” until after the July 1, 2017 deadline for employers to comply with the rule.

A Texas federal court won’t decide the legality of OSHA’s rule regarding the Tracking of Workplace Injuries and Illnesses81 Fed. Reg. 29624 (May 12, 2016) until after the July 1, 2017 deadline for employers to comply with the rule, according to an April 3, 2017 judge’s order.  The order gives attorneys from the Department of Labor and several employer groups challenging the rule until July 5, 2017 to submit a proposed summary judgment briefing schedule (TEXO ABC/AGC v. Perez, N.D. Tex., No. 16-1998).

We had blogged previously about OSHA’s new rule on electronic reporting, drug-testing, retaliation claims, and safety incentive programs.  The TEXO lawsuit seeks a declaratory judgment finding that the rule is unlawful to the extent that it prohibits or otherwise imposes limits on incident-based employer safety incentive programs and routine mandatory post-accident drug testing programs. The plaintiffs allege that the challenged provisions are unlawful and must be vacated because they exceed OSHA’s statutory authority, and because the “underlying findings and conclusions are arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law.”

Business organizations and other industry groups have also sued OSHA in Oklahoma federal court to prevent the implementation of the 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).

While it remains to be seen how either of these legal challenges will fare, the business community has shown a willingness to strongly oppose this new rule — a rule that has been widely criticized as emblematic of regulatory overreach.  However, as the rule remains on the books, employers are required to comply with the July 1 electronic reporting deadline, or face the risk of citations and penalties.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Brent I. ClarkJames L. Curtis, Benjamin D. Briggs, Mark A. Lies, II, and Craig B. Simonsen

Construction Inspector 4Seyfarth Synopsis: Congress passes a Resolution to dismantle an OSHA final rule, adopted in December 2016, which despite statutory language to the opposite, “more clearly states employers’ obligations” to record an injury or illness which continues for a full five-year record-retention period.

The Occupational Safety and Health Administration announced in December 2016 a new final rule that OSHA claims “clarifies an employer’s continuing obligation to make and maintain an accurate record of each recordable injury and illness.” The rule had been proposed in July 2015. In response, the House of Representatives this week passed a Resolution to block the regulation, stating that “such rule shall have no force or effect.”

The bill, House Joint Resolution 83, passed by a vote of 231 to 191, will now move to the Senate for consideration. The White House had issued a Statement of Administration Policy announcing that it “strongly supports” passage of the bill.

In a statement, Rep. Byrne said: “OSHA’s power grab is not only unlawful, it does nothing to improve workplace safety. What it does do is force small businesses to confront even more unnecessary red tape and unjustified litigation. As Republicans have been saying for years, OSHA should collaborate with employers to prevent injuries and illnesses in workplaces and address any gaps in safety that might exist.”

OSHA’s longstanding position had been that an employer’s duty to record an injury or illness continues for the full five-year record-retention period. It cited to Occupational Safety and Health Review Commission cases dating back to 1993. In 2012, however, the D.C. Circuit issued a decision, in AKM LLC v. Secretary of Labor, __ F.3d ___, 2012 WL 1142273 (DC Cir., April 06, 2012), reversing the Commission and rejecting OSHA’s position on the continuing nature of its prior recordkeeping regulations.

The AKM or “Volks” decision applied the standard six month statute limitations to an employer’s duty to put work related injuries and illnesses on the OSHA 300 log. The D.C. Circuit decision affectively ended OSHA practices of issuing citations for alleged recordkeeping errors back five years.  OSHA did not appeal the Volks decision.  As we previously blogged, OSHA’s rulemaking was a clear attempt to avoid the D.C. Circuit of Appeals ruling.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Benjamin D. Briggs, James L. Curtis, and Craig B. Simonsen

Employee Rights Employment Equality Job Business Commuter ConcepSeyfarth Synopsis: In a victory for employers, a Texas federal court has refused to dismiss a lawsuit challenging an OSHA interpretation under which non-employee union representatives were permitted to participate in OSHA inspections of non-union employers.

We blogged previously about OSHA’s 2013 standard interpretation guidance letter allowing workers in non-union workplaces to designate a union (or other) representative to act as a “walk-around representative” during OSHA compliance inspections.  At the time, we cautioned that an undesirable consequence of the interpretation was that it allowed outsiders with interests potentially contrary to the employer’s to influence the compliance inspection in an effort to generate union support amongst employees.  Since its issuance, OSHA has used the letter to force union participation in inspections of non-union workplaces over employer objections.

On February 3, 2017, a Texas federal judge put a serious dent in OSHA’s continued reliance on the interpretation in a ruling signaling victory to a rising chorus of objections from the business community.  The ruling came in case in which the National Federation of Independent Business (NFIB) challenged the validity of the interpretation on the following two bases: (1) the letter constitutes a rule subject to notice and comment rulemaking requirements; and (2) the interpretation exceeds OSHA’s authority.

OSHA responded to the suit by filing a motion to dismiss in which it raised a number of threshold arguments before attacking the substance of NFIB’s claims. The court flatly rejected OSHA’s threshold arguments and then sided with NFIB’s argument that the letter was a legislative rule subject to notice and comment rulemaking, not “interpretive guidance” as OSHA contended.  In reaching this conclusion, the court observed that the letter “flatly contradicts a prior legislative rule as to whether the employee representative must himself be an employee,” and, in turn, should have gone through the formal rulemaking process.

The Upshot for Employers

While the court’s ruling does not conclude the litigation, it sends a very clear message about how the dispute will likely end in the event OSHA continues to defend its position regarding the letter. Moreover, with a new administration committed to reducing agency overreach and armed with the ability to simply withdraw the letter, it appears the continued viability of the interpretation is very much in doubt.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.