Posted with permission from Confined Space, a newsletter of workplace safety and labor issues.

In a hearing before the Senate Appropriations Committee today, Secretary of Labor Alex Acosta today refused to commit not to rescind OSHA’s electronic recordkeeping rule. The rule, issued in 2016, requires employers to send injury and illness information into OSHA and prohibits employers from retaliating against workers for reporting injuries.

The electronic recordkeeping rule has three major parts, two of which are in effect.

First, it required employers to send in a summary of their injury and illness data (form 300A (Summary of Work-Related Injuries and Illnesses) by December 15. A second submission (including information on Form 300 and Form 301), providing more detail about how workers were injured, was scheduled to be submitted later this year. Finally, the rule prohibits employers from retaliating against workers for reporting injuries or illnesses. OSHA’s intent when the rule was issued was to public post on its website the individual employer data to ensure that workers and the public were aware of companies’ health and safety record. No confidential or personally identifiable information would be submitted to OSHA or posted publicly.

Over the past year, Trump’s OSHA as announced that it’s working on revising the rule. While it had been assumed that the Trump administration was mostly interested in repealing the requirement to send in the more detailed data, rumors have been circulating that an effort is being made to repeal the entire rule.

Yes or No?

Senator Tammy Baldwin (D-WI) asked Acosta at this morning’s hearing whether Acosta thought it was important for OSHA to have access to accurate injury and illness data in order to target its limited resources to the most dangerous resources.

After agreeing that such data was in fact important, Acosta was asked whether he planned to rescind the rule, yes or no?

Acosta responded that “Yes or no answers are somewhat difficult on this,” but “it is also important to respect he privacy of individuals and employees” and then, without answering Baldwin’s question, proceeded to filibuster the time with a long discussion about the non-existent issue of confidentiality.

In short, “yes or now answers” should not difficult in this case, nor is confidentiality a real issue.

First, the deadline for sending in the summary data on OSHA form 300A has already passed (although a large number of employers failed to comply), and as is evident from the form, there is no private data about any individuals. The more detailed information was to be sent to OSHA by July 1, 2018, but that date has been delayed indefinitely while OSHA determines how to modify the regulation.

While employers do include Personally Identifiable Information (PII) on their in-house forms 300 and 301, that information was not required to be submitted to OSHA or would have been automatically scrubbed out of the submission. When the regulation was released, the agency announced that:

OSHA has effective safeguards in place to prevent the disclosure of personal or confidential information contained in the recordkeeping forms and submitted to OSHA. OSHA will not collect employee name, employee address, name of physician or other health care professional, or healthcare facility name and address if treatment was given away from the worksite. All of the case specific narrative information in employer reports will be scrubbed for PII using software that will search for, and de-identify, personally identifiable information before the data are posted.

So, what we’re seeing here is not a concern about employee privacy, but an effort by the Chamber of Commerce and the anti-OSHA lobby to kill the rule because they’re afraid that if OSHA collects injury or illness information about companies’ health and safety record, the companies’ information — not the PII — will eventually be publicly released. And that won’t look good for those companies with poor health and safety records. Transparency is great — unless it hurts your bottom line.

In addition, as Baldwin suggested and Acosta acknowledged, the injury and illness data would be used to enable OSHA to target the most dangerous industries. Now that makes sense. OSHA is a tiny agency able to visit only a very small number of workplaces each year, so it makes sense that those inspections focus on the most high hazard industries, and the most dangerous companies within those high hazard industries. No one wants to waste OSHA’s time, the taxpayer’s money, or an employer’s time inspecting a company that’s doing everything right. If possible, you want to use the data to get to those companies that are putting workers at risk.

But of course, if you happen to be one of those companies whose putting workers at risk, or a company in a high hazard industry, maybe you’re not so interested in OSHA targeting your industry. Better they waste their time wandering around aimlessly, reducing even further the small chance that you’ll ever be inspected.

So could Acosta have said “No, the rule will not be repealed, although as we have already announced, we’re working on modifying it?”  Yes.

Unless they’re really considering a complete repeal.

OSHA Inspections

Acosta proudly informed the Committee in his opening remarks that “The number of inspections conducted in 2017 increased year over year for the first time in five years despite OSHA’s suspension of enforcement activities to provide more compliance assistance and facilitate the provision of personal protective equipment during the hurricane recovery in areas affected by natural disasters this year.”

And, in fact, the number of inspections did increase by a few hundred in FY 2017. A good thing? Yes and no.

I have nothing against increasing the number of inspections. Thirty-two thousand inspections is a small number considering the huge number of workplaces under OSHA’s jurisdiction, so the more the better.

But, there are some problems with that. Because how many inspections is not the only question. One must also ask what kind of inspections?  A little background:

Career government employees, and especially OSHA staff, are good soldiers. Give them a numerical goal and if at all possible, they’ll meet it by hook or by crook. So if the Secretary of Labor demands that you increase the number of inspections, even though a hiring freeze has caused critical staffing shortages, you go for the short, easy inspections — usually a lot of short construction inspections. And you spend a lot of time out in the field inspecting at the end of the Fiscal Year, and then stay in the office and do all the paperwork at the beginning of the next Fiscal Year.

During the Obama administration, we decided to do something a bit different. We decided to prioritize the type and quality of inspections over the pure number. Because if you’re focusing on short easy inspection to get some numbers up on the board, you may be neglecting the more complex investigations that may be more significant in the big picture — workplace violence, ergonomics, chemical plant inspections — those that may take a long time but are important to do.  We did this by counting “enforcement units” instead of just the number of inspections, and assigning more “enforcement units” to the more difficult inspections so that inspectors or offices wouldn’t be penalized for taking on the more difficult projects.

So I find Acosta’s emphasis on numbers to be ironic, because the typical Republican criticism of OSHA is that it plays a “gotcha” game — just putting citations up on the board. Which is exactly what this administration seems to be doing.  And I understand it. It certainly plays better in Congress to say you did more inspections than that Democrats.
 

The good news is that Acosta again emphasized the importance of enforcement when asked by Committee Chairman Roy Blunt why the Administration had recommended flat budgets or slight increases for DOL enforcement agencies. Acosta responded that

Those are priorities. These laws matter. They’ve been passed by Congress. They are the laws of the land. They need to be enforced. The men and women of the Department of Labor need the resources to enforce them  Over time even if budgets remain flat, life gets more expensive. And so we’ve asked for slight increases to continue the efforts that we’ve done this year. Because as I’ve said, enforcement matters.

Hard to argue with those words.

Tipping Over

Finally, as I mentioned the other day, the fireworks over Acosta’s tipping rule allowing employers to steal servers’ tips evaporated when Congress included a bill prohibiting tip stealing in the FY 2018 budget bill. Acosta had come under withering attack for not including a damaging economic analysis in the proposal that would have estimated how much money servers would have lost.

But the fix passed in March and everyone congratulated each other and patted each other on the back and sang Kumbaya over this great (and rare) example of everyone working together in perfect harmony.

But Acosta couldn’t quite let it go. He needed to “just put it on the record…”

Taking up the Chairman’s offer for a few parting words at the end of the hearing, Acosta reminded everyone that when the original regulation was issued in 2011, the Obama administration also didn’t include an quantitative economic analysis. (Which was not required because the 2011 version did not make any changes in current practice.) He then went to great lengths to explain again how complicated an analysis was and how they could have made some “wildly crazy” assumptions to come up with a number, but that wouldn’t have served the public interest and Obama did the same thing no one got upset, so that’s “indicative of an unfortunate state of affairs that we’re at,” and anyway employers wouldn’t have kept tips anyway because no one would eat there and employees would walk out  but that’s why I’m happy that we all worked together and we had a happy ending.

And to all a good night.

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