Rules + Regs

OSHA launches online application to submit injury and illness data

On Aug. 1, the Occupational Safety and Health Administration (OSHA) launched its Injury Tracking Application (ITA). The web-based form allows employers to electronically submit required injury and illness data from their completed 2016 OSHA Form 300As. The application is accessible on the ITA webpage by clicking here.

In June, OSHA published a notice of proposed rulemaking to extend the July 1 deadline for submitting 2016 OSHA Form 300As to Dec. 1 to allow affected entities sufficient time to familiarize themselves with the electronic reporting system and provide the new administration an opportunity to review the electronic reporting requirements before implementation.

The data submission process involves four steps: creating an establishment; adding 300A summary data; submitting data to OSHA; and reviewing the confirmation email. The secure website offers three options for data submission: users manually enter data into a Web form; users upload a CSV file to process single or multiple establishments at the same time; or users allow automated record-keeping systems to transmit data electronically via an application programming interface.

The ITA webpage also includes information about reporting requirements, a list of frequently asked questions and a link to request assistance with completing the form.

DOL to revise its pending overtime rule

Attorneys for the Justice Department and Department of Labor (DOL) told a federal appeals court June 30 that DOL plans to revise its pending Obama-era overtime rule and asked the court to affirm DOL's right to use salary levels to determine which workers automatically are eligible for overtime pay in the future.

The pending rule was expected to make more than 4 million workers newly eligible for overtime pay, doubling the current salary threshold for eligibility from $24,000 to $47,000 per year. Critics of the rule said it would force employers to cut jobs to cover rising payroll costs.

Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas put the rule on hold last year, saying DOL focused too much on workers' salaries rather than job duties when updating the regulation. Labor Secretary Alexander Acosta acknowledged in March the decision also seemed to question whether DOL can set any salary threshold.

DOL's lawyers told the Fifth Circuit Court of Appeals the department won't initiate a new rulemaking until the appeals court affirms the right to set a salary level. On June 27, DOL sent a request for information about the overtime rule to the Office of Management and Budget; the details of the request likely will identify which aspects of the rule DOL wants to revise.

During his March confirmation hearing, Acosta implied he might support raising the salary threshold from $24,000 to the low $30,000 range to account for inflation. Business groups and many Republican lawmakers also would like DOL to eliminate a provision that automatically would update the salary threshold every three years.

The Fair Labor Standards Act generally requires employers to pay workers time-and-a-half wages for all hours worked beyond 40 per week. The law also delegates to the labor secretary the power to determine which workers should be removed from the overtime requirements under the law's white-collar exemption for workers in "bona fide executive, administrative, or professional" positions.

Lawsuit challenging OSHA record-keeping rule put on hold

On July 11, Judge David L. Russell of the U.S. District Court for the Western District of Oklahoma ordered the stay of an industry lawsuit challenging the Occupational Safety and Health Administration's (OSHA's) electronic record-keeping rule.

The stay was issued at the request of industry groups and the Trump administration so OSHA can decide what changes should be made to the record-keeping regulation; it requires the government to update Russell every 90 days regarding the status of OSHA's rule revisions.

The record-keeping rule requires about 466,000 employers to file online summaries of their annual injury and illness logs and permits OSHA to post the information on its public website. The rule also restricts drug testing and safety-incentive programs and allows the administration to cite employers for punishing workers who report safety concerns.

At press time, the Trump administration had not yet nominated an OSHA head or articulated what changes it might make to the rule, which was released by the Obama administration in May 2016. On June 27, OSHA proposed delaying the log filing deadline to Dec. 1 and said it intends to issue a separate proposal revising or removing other provisions of the rule.

On June 30, a judge with the U.S. District Court for the Northern District of Texas closed a similar case so OSHA could reconsider the rule but left open the option to reopen the case if objections continue.

Senate confirms Rao as President Trump's regulatory chief

Rao

On July 10, the Senate confirmed Neomi Rao as President Trump's chief regulatory officer and leader of the administration's efforts to deregulate and streamline rules. The Senate confirmed Rao in a 54-41 vote.

Rao will serve as administrator of the Office of Information and Regulatory Affairs (OIRA), an agency within the White House Office of Management and Budget that reviews all significant federal regulations. The position likely will be crucial for implementing President Trump's Executive Order 13771, "Reducing Regulation and Controlling Regulatory Costs." The Executive Order requires any significant regulation issued after noon Jan. 20 to include two deregulatory actions and be completely offset.

Rao has been a law professor at the George Mason University School of Law, Arlington, Va.—recently renamed the Antonin Scalia Law School—for the past decade. She founded the Center for the Study of the Administrative State at the university two years ago to debate administrative law. Rao has served in all three branches of the federal government, including as associate counsel to former President George W. Bush; counsel for nominations and constitutional law to the Senate Judiciary Committee; and law clerk to Supreme Court Justice Clarence Thomas.

Public interest organization Public Citizen raised questions regarding Rao's potential ties to billionaires Charles and David Koch, who donated millions of dollars to the Antonin Scalia Law School and the center Rao founded; the organization expressed concern regarding whether Rao's approval of deregulatory measures could benefit the business interests of the Koch brothers. Additionally, Sen. Elizabeth Warren (D-Mass.) spoke against the nomination, saying Rao's work under the Trump administration would lead to the rulemaking process benefiting corporations more than American workers and families.

Still, Rao was endorsed by former OIRA administrators from Republican and Democratic administrations and was confirmed with a bipartisan vote.

"I applaud my colleagues in the Senate for confirming Professor Rao's nomination," says Sen. Ron Johnson (R-Wis.), who voted to approve Rao. "We can all agree that federal regulations should achieve their aim without imposing unnecessary costs on the country's economy and job creators."

Federal appeals court upholds Wisconsin right-to-work law

A Wisconsin statute that prohibits requiring workers to join a union or pay union fees isn't pre-empted by the National Labor Relations Act (NLRA), a federal appeals court ruled June 12.

The court rejected a challenge by International Union of Operating Engineers (IUOE) Locals 139 and 420 that argued Wisconsin's legislation improperly denies them compensation for representing nonmembers and administering collective bargaining agreements. The decision reveals federal law will offer unions little protection as more state legislatures join a movement to adopt right-to-work measures.

The NLRA allows states to prohibit union-management agreements that require employees to join labor unions or pay any fees for union representation, the Court of Appeals for the Seventh Circuit held. Wisconsin's Act 1, adopted in 2015, forbids employers from requiring an employee to become or remain a member of a labor union or requiring as a condition of employment that an individual pay "any dues, fees, assessments, or other charges or expenses of any kind or amount, or provide anything of value, to a labor organization."

IUOE Locals 139 and 420 argued the Wisconsin law is pre-empted by the NLRA, but the Court of Appeals for the Seventh Circuit previously held in Sweeney v. Pence that the NLRA allows state laws to preclude an employer and union from agreeing to make union membership a condition of employment. The court also held the right of state governments to enact such laws "necessarily permits state laws prohibiting agreements that require employees to pay representation fees."

The Court of Appeals for the Seventh Circuit said a lower court properly rejected the unions' challenge to the Wisconsin right-to-work law, writing: "IUOE points to no intervening developments in statutory, Supreme Court or even intermediate-appellate-court law between Sweeney and today that undermine Sweeney's validity."

The Wisconsin law is nearly identical to an Indiana statute that was upheld in 2014, the Court of Appeals for the Seventh Circuit added.