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OSHA's electronic record-keeping rule survives employer challenge

Posted On: Apr. 1, 2019 12:00 AM CST

The decision of an administrative law judge of the Occupational Safety and Health Review Commission to strike down two defenses offered by the U.S. Postal Service to a citation issued by the U.S. Occupational Safety and Health Administration preserves the agency’s authority under its electronic record-keeping rule.

The anti-retaliation provisions of OSHA’s rule were controversial because employees already had the ability to file retaliation complaints under Section 11(c) of the Occupational Safety and Health Act, which prohibits employers from retaliating against employees for exercising OSH Act rights such as filing a safety or health complaint with OSHA.

Employer representatives were troubled by its establishment of a new, citation-based pathway for employee complaints.

“This was a run around the 11(c) provisions,” said Larry Stine, Atlanta-based senior principal at Wimberly, Lawson, Steckel, Schneider & Stine P.C. “I know if I get a citation, I’m going to certainly raise those challenges.” On Feb. 26, 2018, OSHA cited USPS for allegedly issuing a seven-day working suspension to a carrier because he reported a work-related injury, according to the February ruling in Secretary of Labor vs. U.S. Postal Service. The USPS argued that the alleged standard and/or penalties were invalid because they were beyond the legal power or authority of OSHA and/or were arbitrary and capricious.

But the judge rejected arguments that Congress intended for Section 11(c) to be the exclusive means to redress retaliatory acts that both violate an employee’s OSH Act rights and undermine OSHA’s duty to collect accurate injury and illness data. “The text of Section 11(c) contains no limiting language of any kind,” the judge said.