On June 4, 2020, Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California ruled in The Center for Investigative Reporting v. Department of Labor that employers’ injury and illness records, submitted to the federal Occupational Safety and Health Administration (OSHA), are not confidential and can be released if requested through the Freedom of Information Act (FOIA).
Currently, employers must post their OSHA Form 300A summaries (which contain a summary of each establishment’s total number of job-related incidents for the preceding calendar year) in the workplace from February through April. Additionally, under 29 C.F.R. § 1904.41(a)(1), employers with 250 or more employees and those in certain industries with 20 or more employees must electronically submit Form 300A summaries each year to OSHA.
Judge Ryu rejected the Department of Labor’s (DOL) argument that these records were exempt from disclosure under the FOIA as trade secrets and commercial or financial information, which is privileged or confidential. This decision seems based at least in part on the fact that in 2016, OSHA stated its intent to post the information online, and reiterated that all employers must annually post the Form 300A where all employees can see it. Judge Ryu found that the DOL failed to establish that the Form 300A information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.
Does this sound familiar? If so, that is because the ruling harkens back to the controversial “regulation by shaming” initiative introduced in 2013 by then-OSHA Assistant Secretary Dr. David Michaels. Under this initiative, the agency circulates antagonistic press releases immediately after issuing unproven (and often contested) citations, accusing employers of being bad actors and trying cases in the press.
Judge Ryu’s decision means that employers may want to be prepared to address or respond to questions from employees, the media, or other third parties about the content of their Form 300A summaries. In addition, employers may want to be prepared for what disclosure may imply about their workplace safety record.
One problematic aspect of this decision, and the “regulation-by-shaming” initiative as a whole, is that the stated benefit of this approach is limited. Indeed, the ruling incorrectly suggests that every incident recorded on an OSHA Form 300A summary is somehow a violation of the Occupational Safety and Health Act (OSH Act). Injuries sometimes occur because employees ignore established safety procedures or their safety training. Employee advocates hailed the ruling, asserting that revealing injury and illness records could motivate more employers to improve safety and provide workers with a deeper understanding of the risks associated with their jobs, and might help hold companies accountable. The vast majority of employers, however, are just as concerned and engaged in the safety and well-being of their employees as any governmental agency or employer advocate. This approach to enforcement of the OSH Act would appear to be a gift to union organizers and the plaintiffs’ bar.
What Does the Future Hold?
Judge Ryu instructed the parties to submit a joint proposed order. It may be, however, that the DOL appeals the judge’s decision. Other interested parties—including employer advocacy groups—could seek to intervene in the case.
An appeal might encounter resistance in the generally employee-friendly U.S. Court of Appeals for the Ninth Circuit. But this remains to be seen.