SeaWorld Adventure Park was sanctioned over trainer Dawn Brancheau's death.
SeaWorld Adventure Park was sanctioned over trainer Dawn Brancheau’s death. (Julie Fletcher/Orlando Sentinel/MCT via Getty Images)

A federal government proposal to make workplace illness and injury records public amounts to “regulation by shaming,” say employers, who have tapped top lawyers to derail the controversial initiative by the Occupational Safety and Health Administration.

The agency extended the public comment period for the rule from Feb. 6 to March 8, and momentum is building among business advocates determined to fight it.

“This is completely beyond OSHA’s mandate,” said Gibson, Dunn & Crutcher partner Baruch Fellner, who represents the U.S. Chamber of Commerce in opposing the regulation. “It looks totally innocuous, but it isn’t.”

The regulation calls for employers to take data they already collect about workplace incidents and submit it electronically to OSHA rather than keeping a log on paper. The cost, proponents say, will be little more than hitting “send.” About 440,000 businesses would have to comply.

“Public posting of workplace injury and illness information will nudge employers to better identify and eliminate hazards,” OSHA head David Michaels said at a press conference in November when the proposal was announced. He called it “an effective, inexpensive and nonprescriptive way to encourage employers to reduce hazards and therefore save workers’ lives and limbs.”

Businesses don’t see it that way. It’s not so much that they object to submitting the information. What troubles them is that it will be made public in a searchable, online database.

“There’s the potential for misuse,” said Keller and Heckman partner Lawrence Halprin, who represents the Society of the Plastics Industry and individual corporate clients in the rulemaking. Plaintiffs attorneys could use it “to gin up a plaintiffs case. … Unions could try to use it for organizing purposes,” he said. Halprin and others view the initiative as part of a recent OSHA trend — public shaming.

Michaels himself used the term in a 2010 speech: “In some cases, ‘regulation by shaming’ may be the most effective means for OSHA to encourage elimination of life-threatening hazards, and we will not hesitate to publicize the names of violators,” he said.

‘SCARLET LETTER’

In part, it’s a tactic born of necessity. OSHA is a small agency — about 2,300 inspectors — with a big mission: to ensure safe and healthy workplaces for 130 million people. But its hands are tied by statute when it comes to assessing fines. The maximum penalty per serious workplace violation — one that causes “a substantial probability of death or serious physical harm” — is $7,000. By comparison, for example, the top penalty for violating the South Pacific Tuna Act, enforced by the National Oceanic and Atmospheric Administration, is $350,000.

Even high-profile accidents, such as the 2010 death of SeaWorld whale trainer Dawn Brancheau in Orlando, who drowned after being pulled into a pool by an orca, yield less-than-intimidating fines — in that case, $75,000, downgraded to $12,000. SeaWorld is fighting OSHA in the U.S. Court of Appeals for the D.C. Circuit, which heard the case on Nov. 12.

For OSHA, one way to inflict pain is by tarnishing a company’s public image. But lawyers argue that injury and illness statistics in isolation don’t indicate the quality of a company’s safety program, and that reporting the numbers may actually be counterproductive.

“I’m concerned [OSHA is] trying to paint a scarlet letter on companies,” said Edwin Foulke Jr., a Fisher & Phillips partner who headed OSHA from April 2006 to November 2008. The data “does not tell you how good a safety program is, it doesn’t tell you anything. … Is this going to help improve workplace safety? That’s the bottom line. I don’t see how it does.”

James Lastowka, who heads McDermott Will & Emery’s OSHA practice, agrees, saying it magnifies “what is already bad data.” He said the criteria for what is a reportable, work-related illness or injury is confusing and idiosyncratic.

For example, if a worker bends over to pick something up and hurts his or her back, that might — or might not — be reportable, he said. If the worker stretches and goes about his day, it’s not reportable. If he goes to the doctor and is given an over-the-counter pain reliever, it’s not reportable. But if he gets a prescription pain reliever, then it is reportable. “It’s the same incident, with different outcomes,” Lastowka said.

Companies that err on the side of inclusion when it comes to logging incidents will be penalized if the data is made public, he said. “The irony is that the better job you do, and the more time and effort you put into trying to determine if an injury or illness is recordable, the worse you’ll look against other entities and peers that aren’t putting the effort into it,” he said.

But Michaels has said that by making the reports public, employees will be able to tell if their employer is underreporting, providing a “self-correcting mechanism.”

At a Jan. 9 public meeting at the U.S. Department of Labor, lobbyist Patrick O’Connor of Kent & O’Connor, who spoke on behalf of the American College of Occupational and Environmental Medicine, warned OSHA officials that the proposed rule could lead to underreporting injuries and “pressure to downgrade the severity of a diagnosis.”

However, union representatives at the same meeting defended the proposal, pointing out that while employers are already required to record illnesses and injuries, OSHA doesn’t normally see those records. “It’s highly important that OSHA after almost 40 years will actually have access to data that employers are required to keep,” said Darius Sivin of the International Union, UAW.

In a Jan. 9 statement, Michaels said, “This is a proposal, not a final rule. We strongly encourage the public to assist us in the process of developing a final rule.”

To date, most of the substantive comments have been against the rule, including some from state and local officials.

Oklahoma Commissioner of Labor Mark Costello wrote that the “experimental idea of OSHA using ‘naming and shaming’ as a means to improve safety is unwise. The unintended consequences are likely to do more harm than good.”

The Public Agency Safety Management Association – South Chapter, which represents more than 60 public agencies in Southern California, wrote that OSHA “significantly underestimated” the cost of the regulation. According to OSHA, the rule would cost private industry of $10.5 million per year, but the public agency group pegs the true cost at $152 million to $304 million.

Fellner of Gibson Dunn has zeroed in on other legal issues, arguing that while OSHA is entitled to ask employers for reports, that doesn’t include creating a database. “They’re trying to bootstrap a reporting provision in the statute and turn it into a database,” he said. He also argues the rule amounts to compelled speech — a potential First Amendment violation — and that it could violate an employee’s right to privacy. “The regulation is legally vulnerable,” Fellner said.

Contact Jenna Greene at jgreene@alm.com.