DOL: Unions should not intervene in lawsuit against OSHA recordkeeping rule

Washington – The Department of Labor and OSHA have an “identical” interest with labor unions in defending a legal challenge to the Improve Tracking of Workplace Illnesses and Injuries final rule, making union intervention unnecessary, attorneys representing DOL said in a legal brief issued May 30.

Filed in the U.S. District Court for the Western District of Oklahoma, the legal brief was in response to the AFL-CIO and United Steelworkers filing a motion March 8 to act as defendants in a January lawsuit in which the National Association of Home Builders and other industry groups claimed OSHA lacked the authority to issue the requirements of the rule.

“A government agency defending a regulation against a facial challenge has at least as much incentive and ability to defend that regulation, and to represent the interests of those who support it, as any member of the public,” the brief states. “Accordingly, any member of the public who seeks to intervene as of right in defense of a regulation must first clear a high bar where, as here, the government and the would-be intervenor share the same ultimate objective of defending the challenged regulation.

“Because the applicants for intervention here have not – and cannot – clear that bar in this case, the Court should deny their motion to intervene, insofar as they seek to intervene as of right.”

The rule, which went into effect Jan. 1, states that establishments with at least 250 workers must electronically submit to OSHA data from OSHA forms 300, 300A and 301 annually. Employers with 20 to 249 employees in select, high-hazard industries are required to submit information from their annual summary form, OSHA Form 300A.

In May, OSHA extended the deadline for certain employers to submit injury and illness data past the original July 1 date. A new extension date had not been released at press time.