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Unions blocked from intervening in electronic record-keeping rule litigation

Posted On: Jun. 28, 2017 2:56 PM CST

A judge overseeing one of the lawsuits challenging the U.S. Occupational Safety and Health Administration’s electronic record-keeping rule has denied a request by two unions to intervene in the litigation. 

The regulation requires employers to electronically submit injury and illness data and to establish reasonable procedures for reporting employee injuries and illnesses and bars employers from retaliating against employees for reporting injuries or illnesses. The regulation applies to establishments with 250 or more employees and to establishments with less than 250 employees, but with 20 or more in certain high-risk industries.

The AFL-CIO and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union filed a motion on March 8 to intervene in a lawsuit filed by the National Association of Home Builders of the United States and the U.S. Chamber of Commerce, among other organizations, challenging the electronic record-keeping regulation in the U.S. District Court in Oklahoma City in January. Several groups that research and advocate on workplace safety and health issues also sought to intervene in the litigation.

But on Monday U.S. District Judge David Russell denied the unions and public health advocates’ intervention motions because the groups failed to meet the legal burden to show that the government will not adequately represent their interests. 

“The arguments for intervention in this case essentially boil down to fears over what OSHA, given the new presidential administration, might or might not do when it comes to defending the rule,” he said in his ruling. “For instance, the movants worry that the government will choose not to defend the rule’s provision calling for the government to publicly disclose companies’ illness and injury data because the government, the movants argue, does not derive any benefit from making this information public. Worse, the movants fear, the administration might even move to weaken or rescind the rule.”

“No one can say,” what future position the Trump administration will take on the rule, the judge continued. “Granted, the court is aware of the executive branch’s signals that it may rescind regulations passed by previous administrations. But there is no signal as to the Department of Justice’s plans for this specific regulation.”

In a nod to the possibility the Trump administration could choose to stop defending the rule in court, the judge denied the intervention motions without prejudice, meaning the unions and the public health advocates can renew their intervention requests if the government’s position changes.

The judge’s decision came a day before OSHA proposed delaying the compliance date for employers to electronically report injuries and illnesses to Dec. 1, but said it plans to issue a separate proposal to reconsider, revise or remove other provisions of the agency’s electronic record-keeping rule.