Chamber of Commerce Fights New OSHA Rule

OKLAHOMA CITY (CN) — The Chamber of Commerce and other business groups sued the Department of Labor, claiming a new OSHA rule requiring employers to submit injury and illness reports for posting on a publicly available website constitutes unconstitutional forced speech.

Lead plaintiff National Association of Home Builders of the United States and seven other groups sued the secretary of labor and the Occupational Safety and Health Administration on Jan. 4 in Federal Court.

They say the “Improve Tracking of Workplace Injuries and Illnesses” final rule announced in May 2016 is “arbitrary, capricious and otherwise contrary to the law:” that it exceeds the agency’s authority under the Occupational Safety and Health Act of 1970 and runs afoul of the Administrative Procedure Act. The rule took effect on Jan. 1.

“The Rule violates the First Amendment by compelling companies to submit their confidential and proprietary information for publication on a publicly available online database,” the 31-page complaint states. “There is no evidence that publication of this information will have any effect on workplace safety and health. The limited authority given OSHA by Congress to require employers to collect and maintain injury and illness data cannot be read to allow the Agency to force employers to make public this information in violation of their constitutional rights.”

The new rule does three things.

Certain employers are required to submit the records electronically to OSHA for public posting.

Employers must establish “reasonable” procedures for employees to report on-the-job injuries.

And it gives OSHA more authority to punish employers for discriminating and retaliating against employees for reporting injury or illness.

The plaintiffs say all three parts of the rule are illegal.

They say OSHA does not have authority to create the public database, that the “reasonable” procedures requirement is arbitrary and capricious under the APA and that the OSH Act expressly provides redress for work injury retaliation.

The business groups also say that employers’ Fifth Amendment rights are violated by the rule’s failure to give them “adequate notice” of what constitutes “reasonable” reporting procedures that subject employers to penalties without due process.

NAHB chairman Ed Brady said the business groups have “vigorously opposed this rule from the start and cannot allow this type of regulatory overreach to occur.”

He said the injury and illness disclosure requirement subjects businesses to “significant representational harm” without evidence it would reduce on-the-job injuries or illnesses.

“OSHA has not justified any of the rule’s requirements with any real benefits analysis and has relied entirely on anecdotal information,” Brady said in a statement. “This is entirely insufficient and cannot be allowed to stand and potentially serve as a precedent for other Agency rules. Workplace safety is of the utmost concern of our members, however this rule is unlawful and does not serve its intended purpose of improving workplace safety.”

Plaintiffs include the Chamber of Commerce of the United States; Oklahoma State Home Builders Association; the State Chamber of Oklahoma; the National Chicken Council; the National Turkey Federation; and the U.S. Poultry & Egg Association.

They seek declaratory judgment and want the rule set aside, plus costs of suit.

They are represented by Sam Fulkerson with McAfee Taft in Oklahoma City.

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