President Donald Trump recently overturned an Obama-era labor rule known as the Volks rule that applied to accident record keeping. The Volks rule stated that OSHA could look back at the past five years of accident reports and decide whether or not to fine a company. President Trump’s actions have altered the rule to say that five years worth of records must still be kept, but fines can only be levied for incidents that have occurred in the previous six months.
This latest move against OSHA is something that the American construction industry did not think it could have accomplished without a labor-friendly president such as Trump. The construction industry contends that being forced to maintain a digital database of construction accidents for OSHA to review at random is a financial burden on construction companies. OSHA proposed that being forced to maintain accident reporting for five years would force companies to focus more on worker safety. The construction industry maintains that worker safety is already a priority and this extra measure was simply a way for OSHA to find more ways to fine companies.
What Is The Real Issue Behind The Public Database Battle?
On August 1, 2016, the Department of Labor enacted OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule that forced any contractor with 20 employees or more to accurately and actively contribute to a public database that shows all of the accident and illness reports and citations companies are responsible for. It was a rule that did not make the contracting industry happy, and it even incensed the United States Chamber of Commerce.
In January 2017, several organizations including the U.S. Chamber of Commerce and the National Association of Home builders filed a lawsuit against OSHA and the Department of Labor stating that the new rule was not only unfair but unconstitutional. The organizations claim that the new rule would force contractors to reveal extremely sensitive company data and the personal information of employees just to satisfy OSHA’s bookkeeping needs.
OSHA’s Intent To Maintaining Worker Safety
When the rule was first announced in May 2016, OSHA stated that its purpose for the rule was to force companies to work harder at safety in order to avoid their names being associated with numerous safety violations. In OSHA’s view, a company’s poor safety record is the result of bad management, and the equivalent of “public shaming” for allowing a bad safety record would be very effective at getting companies to pay attention to worker safety.
OSHA also stated that having a public database will allow other safety agencies at all levels of government to have the comprehensive data they need to enforce safety laws. OSHA feels that having public access to this data will allow local safety authorities to target habitual safety offenders and will go a long way towards creating safer work sites all over the country.
The New Rule Changes How Different Accidents Are Viewed And Weighed
Opponents to OSHA’s new record keeping rule come from all parts of the business world, and they are all unified in their contempt for what they call a rule that crosses the line of constitutionality. One of the problems construction companies have with the rule is that it does not allow any positive safety information to be posted. If a company wins a safety award from a local safety organization, that is not going to show up on this new database. The only information that shows up on this database is information about safety violations, accidents, and illness issues.
Opponents of the new rule also say that the rule will create an administrative nightmare for the construction industry that will cost companies money and time they cannot spare. Companies will be forced to post sensitive information about themselves and their employees to meet the requirements of this rule, and that part is being called unconstitutional by many opponents.
Construction companies are also concerned that minor incidents such as bee stings and job site falls will be placed side-by-side with heinous safety indiscretions and given the same weight. Many construction companies are fearful that a company with 10 minor incidents that are not deemed to be the company’s fault will be judged to be as irresponsible as a company that has had 10 major incidents and a worker death during the same period of time. Given the rules for reporting incidents on the new database, this sort of scenario is very possible.
Should There Be A Public Database At All?
Allowing the public to have access to information that is both supposedly sensitive by other federal laws and difficult for people who are not in the industry to understand can be detrimental to the construction industry. A company that has a history of unavoidable events could be put in the same light as a company with a truly poor safety record, and that could cause a public relations nightmare for the company with a history of unavoidable events.
OSHA has never really stated, aside from public shaming, what it hopes to accomplish by allowing this data to be available outside of the construction and safety industries. Since the record keeping requirements of the public database expose the sensitive personal information of workers, it appears that OSHA is putting workers at risk of having their information manipulated by criminals and possibly having the worker’s identity stolen.
One of the justifications OSHA has given for the public database is that it will help workers to make more informed decisions about which construction companies they want to work for. Once again, it can be dangerous to the public image of a construction company to assume that workers in the industry know how to properly read safety data. Unless OSHA intends to offer some sort of training to teach workers how to interpret this data, this public database could only serve to prevent companies from being able to hire the workers they need.
Could The President Be The Answer?
OSHA re-instated the Volks rule three days before President Trump took office in an attempt to get the rule in place before it could be stopped. However, President Trump wasted no time in taking away the Volks rule from OSHA when he was inaugurated into office. Many people think that the same fate that befell the Volks rule will also occur with the “Improve Tracking of Workplace Injuries and Illnesses” rule.
Donald Trump repeatedly said during his campaign that he finds many of the rules of OSHA and the Environmental Protection Agency (EPA) to be damaging to business, and he vowed to take those rules out of the way of business progress. In his first 11 weeks in office, Trump has shown that he is serious about both reigning in the EPA and removing OSHA’s reporting rules as well.
After shooting down the Volks rule, many people now think that President Trump will turn his attention to OSHA’s public database. With construction companies submitting a list of grievances against the new rule that include issues with profitability and efficiency, the door is definitely open for President Trump to do what he can to remove the public database. The many detractors of the public database do not see what useful purpose it serves in helping to make the construction industry safer. With this in mind, it is possible that it may not be long before the Congress and the President put their stamp on a law that sides with the construction industry and against OSHA.