This article was written by Barbara E. Hoey and Diana R. Hamar, and originally posted to Kelley Drye’s Labor Days Blog.

In a decision that could have wide-ranging implications for all employers, the Fourth Circuit recently held that an employer’s failure to stop a false rumor that a female employee slept with her male boss to obtain a promotion, could give rise to employer liability under Title VII for gender discrimination. Parker v. Reema Consulting Services Inc., No. 18-1206 (4th Cir. Feb. 8, 2019).

So now employers must police the rumor mill? This decision is confusing to say the least, as employers now have dueling obligations—to quash rumors while not infringing upon an employee’s Section 7 rights to discuss the terms and conditions of employment.

ALLEGED FACTS

According to the Complaint and reported decision¹, plaintiff Evangeline Parker worked for Reema Consulting Services, Inc. (“RCSI”) at its warehouse facility in Sterling, Virginia. Parker began as a low-level clerk and was promoted six times in approximately two years, ultimately holding the position of Assistant Operations Manager. Two weeks after her latest promotion, a male employee started a rumor that Parker received the promotion because she was having a sexual relationship with her boss. The male ‘rumor monger’ had started at RCSI at the same time as Parker, but had not been promoted and was now reporting to Parker.

Subsequently, a warehouse manager (male) began to spread the rumor and Parker’s direct reports and coworkers started treating her with hostility. After six weeks, the warehouse manager held a mandatory all-staff meeting, allegedly to discuss the rumor. Parker and her boss were late to the meeting, however, her boss was allowed into the meeting while the warehouse manager was claimed to have “slammed the door in Parker’s face.”

Parker scheduled a meeting with the warehouse manager to discuss the rumor where he blamed her for “bringing the situation in the workplace” and told her that she could no longer advance in the company because she complained about the rumor.

Parker filed a formal hostile work environment complaint with HR. She claimed that HR instructed her to avoid her boss, but placed no restrictions on him. Later that month, Parker was called to a meeting with HR and the warehouse manager; she was issued two written warnings (one for complaining about the harassment) and was terminated.

PARKER’S CLAIMS AND THE DISTRICT COURT DECISION

Parker filed suit alleging claims under Title VII, including: (1) hostile work environment on the basis of sex; (2) retaliatory termination;  and (3) discriminatory termination on the basis that RCSI terminated her employment contrary to its three warnings rule.

RCSI filed a motion to dismiss and the district court granted the motion, explaining that the rumor was not based upon Parker’s gender but instead her conduct. The district court further held that the alleged harassment was not severe and pervasive because the rumor lasted only a few weeks and involved only a “few slights.” As such, the court also dismissed Parker’s retaliatory termination claim because her belief that she was subjected to gender discrimination was not objectively reasonable since the rumors were not based upon her gender.

FOURTH CIRCUIT REVERSES DECISION 

Surprisingly, the Fourth Circuit reversed the district court decision and held that RCSI may be liable for failing to quash this rumor on the theory that it perpetuated a ‘deeply rooted perception’ that women (not men) use sex to achieve success. The Court relied upon gender stereotyping cases, including the seminal Supreme Court case Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51, 258, 272–73 (1989). The Fourth Circuit emphasized that assuming all of Parker’s allegations to be true, the rumor clearly resulted in Parker being treated differently from male employees (i.e., male employees started the rumors, Parker was excluded from an all-staff meeting regarding the rumor while her male supervisor was not, and only Parker was sanctioned for complaining about the alleged harassment while her male supervisor was not).

The Fourth Circuit also rejected the district court’s conclusion that Parker failed to allege that the harassment was severe and pervasive. It reasoned that the alleged harassment did not last a mere two weeks, but rather, two months and found it to be more than a few “slights.” The Court found that the alleged harassment was continuous, consumed management and employees and was at times physically threatening (the warehouse manager slamming the door in Parker’s face). Thus, the Fourth Circuit concluded that Parker sufficiently alleged that the harassment was severe and pervasive and interfered with her work.

GUIDANCE FOR EMPLOYERS

At first blush, it seems outrageous that an employer could be liable for failing to control rumors in the workplace.  In fact, how would an employer even do that? Even if an employer could, would an employer be infringing upon employees’ Section 7 rights by instructing employees not to speak about a workplace romance?

The answer: it depends on the rumor and how management reacts to the rumor. In that regard, this case may be a demonstration of the adage that – bad facts make bad law.

There were a number of bad facts here which led to this result, most notably the fact that the warehouse manager was alleged to have spread the rumor and then called a meeting to discuss the rumor with staff.  Assuming that were true – and we know there may be two sides to the story – that puts management right in the thick of the rumor spreading.

So, the lesson to be learned here includes:

  • A false rumor grounded in a harmful gender-based stereotype may result in employer liability for unlawful gender discrimination if management takes part in spreading it.
  • Managers that are aware of malicious rumors may need to take steps to quiet them and certainly should not spread them.
  • Managers should also know that if they are found to be spreading malicious gossip or rumors, they may be subject to discipline.
  • Finally, once the employee has made a complaint, it goes without saying that the company should not retaliate against the employee.

To further complicate matters, employers should remember that the NLRB has held that broad “no gossip” policies violate the National Labor Relations Act because they discourage employees from speaking to coworkers about the terms and conditions of employment.

The takeaway? Employers must pay attention to the content of the rumor and act accordingly.

————————————————————————————————————

¹ For purposes of summary judgment, allegations in a complaint must be assumed to be true. We take no position on whether the allegations were in fact accurate.

  • 02/27/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Canned Food Company in Texas After Employee Suffers Amputation
  • 02/26/2019 – Region 6 OSHA News Release – U.S. Department of Labor and Lee Lewis Construction Partner to Enhance Workplace Safety and Health at Lubbock Construction Project
  • 02/25/2019 – Region 6 OSHA News Release – U.S. Department of Labor and West Texas Safety Training Center Renew Alliance to Prevent Injuries, Illnesses in Oil and Gas Industry
  • 02/25/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Asphalt Company Following Investigation of Employee Fatality
  • 02/22/2019 – Region 8 OSHA News Release – U.S. Department of Labor and Montana Construction Contractor Sign Partnership to Enhance Employee Safety and Health
  • 02/21/2019 – Region 4 OSHA News Release – U.S. Department of Labor Issues $164,802 in Penalties to Wholesaler After Employee Injury at Georgia Distribution Center
  • 02/21/2019 – Region 5 OSHA News Release – U.S. Department of Labor Renews Alliance to Improve Workplace Safety For Southwest Illinois Industrial and Utility Employees
  • 02/20/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Mississippi Paper Manufacturer For Workplace Safety Violations, Proposes $303,657 in Penalties
  • 02/19/2019 – Region 3 OSHA News Release – U.S. Department of Labor Investigation Results in Court Ordering a Pennsylvania Hair Salon to Pay $40,000 to Stylist Fired after Report of Health and Safety Hazards
  • 02/19/2019 – Region 4 OSHA News Release – U.S. Department of Labor Imposes Fine on Motion Picture Company for Failing to Adequately Protect Stuntmen from On-Set Hazards
  • 02/15/2019 – OSHA Statement – Response from U.S. Department of Labor Regarding Fake OSHA Cards

 

This article was written by Mark A. Konkel and Jennifer Fischer, and originally posted to Kelley Drye’s Labor Days Blog.

The New York City Human Rights Law prohibits employers, housing providers, and providers of public accommodations from discriminating against an individual on the basis of race. The New York City Commission on Human Rights (the “Commission”) issued guidance banning discrimination based on an individual’s hair, specifically the hair and hairstyles traditionally worn by Black people.

Last year, the Supreme Court refused to hear a case filed by a Black woman whose job offer was rescinded when she refused to cut off her dreadlocks. The company had a hairstyle policy that banned dreadlocks and said that an employee’s “hairstyle should reflect a business/professional image” and that prohibited “excessive hairstyles.” New York City has now stepped up and taken a stand against these grooming policies.

The Commission has found that bans or restrictions on hair or hairstyles “are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.” Although grooming policies impact many communities, the Commission’s guidance focuses on hairstyles commonly associated with Black people and the race discrimination they suffer as a result of biased appearance policies.

“There is a widespread and fundamentally racist belief that Black hairstyles are not suited for formal settings, and may be unhygienic, messy, disruptive, or unkempt.”

The Commission has added Black hairstyles to the list of protected racial characteristics. Employers covered by the NYC Human Rights Law that “enact groom or appearance policies that ban or require the alternation of natural hair or hair styled into twists, braids, cornrows, Afros, Bantu knots, fads, and/or locs may face liability . . . because these policies subject Black employees to disparate treatment.” Grooming policies may not be implemented “to promote a certain corporate image, because of customer preference, or under the guise of speculative health or safety concerns.” Similarly, schools and other places of public accommodation in New York City may not treat Black people differently or harass them because of their hair or hairstyles.

The Commission’s guidelines are an attempt to lessen the physical and psychological harm to Black individuals who are forced to choose because their careers and their personal and cultural identity through their hairstyle.

Employers in New York City with grooming or appearance policies should consider alternative options to addressing any legitimate safety or health concerns besides a complete ban on certain hairstyles. Policies should be inclusive of all “racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.” Grooming policies prohibiting hairstyles or requiring employees to alter their hair, requiring only Black employees to cut or alter their hair in order to keep their jobs, refusing to hire Black applicants with a hairstyle that “does not fit the ‘image’” of the employer, or requiring Black employees to hide their hairstyles would all be violations under the Commission’s new guidance.

Employers outside of New York City should also consider revising any grooming policies they may have should other cities and state follow the Commission’s lead. Hair discrimination may be the next area where state and local laws set stricter standards while federal guidance remains silent.

This article was written by Barbara E. Hoey and Diana R. Hamar, and originally posted to Kelley Drye’s Labor Days Blog.

As we enter the 3rd year of the #MeToo movement, all signs point towards another year of heightened legal activities in the area of gender discrimination and gender equality. Sexual harassment claims will continue to garner news headlines, but there are bigger threats for employers. For many employers, 2019 will be less about whether their female employees are being harassed, and more about whether they are being treated fairly and equally.

What’s the difference you ask? The answer is everything else outside of harassment, including pay equity, opportunity equality, and fair treatment for employees who are pregnant and new parents.

There is no greater indication of this heightened focus on equality than the 116th Congress, which has a record number of women serving. Naturally, legislation aimed to combat gender inequality will be at the forefront. In this post, we identify the legislative and legal trends employers should pay attention to in 2019 as we declare it “The Year of the Woman.” Continue Reading 2019 – “The Year Of the Woman” in Employment Law

  • 02/14/2019 – Region 1 OSHA News Release – U.S. Department of Labor and Dimeo Construction Partner to Promote Workplace Safety During North Kingstown Construction Project
  • 02/13/2019 – OSHA Trade Release – U.S. Department of Labor Provides Interim Compliance Guidance for Evaluation of Crane Operators
  • 02/13/2019 – Region 4 OSHA News Release – U.S. Department of Labor Issues $265,196 in Penalties to Florida Roofing Contractor for Repeatedly Exposing Employees to Fall Hazards
  • 02/13/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Musical Instrument Manufacturer For Exposing Employees to Copper Dust and Machine Hazards
  • 02/13/2019 – Region 7 OSHA News Release – U.S. Department of Labor Seeks to Prevent Amputation Injuries to Nebraska Employees and Remind Employers of Reporting Requirement
  • 02/12/2019 – OSHA Trade Release – U.S. Department of Labor Urges Employers to Prevent Worker Exposure to Carbon Monoxide from Portable Generators and Other Equipment
  • 02/06/2019 – Region 1 OSHA News Release – U.S. Department of Labor Orders Vermont Company to Compensate Employee Fired for Reporting Finance Industry Violations
  • 02/06/2019 – Region 9 OSHA News Release – U.S. Department of Labor Cites Guam Building Materials Distributor For Struck-By Hazards
  • 02/04/2019 – OSHA Trade Release – U.S. Department of Labor Forms Alliance with Agribusiness Organizations to Protect Workers in Agricultural Industry
  • 02/04/2019 – Region 4 OSHA News Release – U.S. Department of Labor Partners with Contractor to Promote Workplace Safety during Construction of Tire Plant in Mississippi
  • 02/04/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Texas Indoor Gun Range For Exposing Employees to Unsafe Lead Levels

 

Article written for Law360, published on February 6, 2019.

In the past few months, we have seen three different cases of religious accommodation claims, with three very different results.

  • In case one, the U.S. Court of Appeals for the Eighth Circuit affirmed dismissal of a U.S. Equal Employment Opportunity Commission failure-to-hire case, on very narrow grounds.
  • In case two, a Florida jury awarded a hotel kitchen employee $21.5 million, after she was terminated for refusing to work on her Sabbath.
  • In case three, a federal judge in New York approved a $4.9 million settlement of a class action brought by the EEOC against United Parcel Service Inc., which involved claims that the company had not properly handled employee requests for religious accommodation, relaxing dress and uniform rules.

What do these cases tell us?

The obligation to accommodate employees’ religious beliefs and practices remains a critical concept for employers to understand, and a concept which the EEOC and the plaintiffs bar plainly take very seriously.

Employers must be careful in drafting and enforcing policies, and managers and human resources executives must be especially cautious when they say “no” to a request for a religious accommodation, and make sure that their denial is on solid legal footing.

To read the full Law360 article, click here.

 

  • 01/28/2019 – Region 1 OSHA News Release – U.S. Department of Labor and Connecticut Manufacturer Settle Whistleblower Allegations Regarding Termination of Two Workers
  • 01/28/2019 – Region 4 OSHA News Release – U.S. Department of Labor’s Occupational Safety and Health Administration Returns to Normal Enforcement Operations Following Hurricane Michael
  • 01/24/2019 – OSHA Trade Release – U.S. Department of Labor Issues Final Rule to Protect Privacy of Workers
  • 01/23/2019 – OSHA National News Release – U.S. Department of Labor Publishes New Frequently Asked Questions on Controlling Silica in General Industry
  • 01/23/2019 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Construction Project at Hartsfield-Jackson International Airport
  • 01/23/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Cafeteria for Burn and Chemical Hazards; Faces $134,880 in Penalties
  • 01/23/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Exposing Employees to Dangerous Falls
  • 01/18/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Beef Processing Plant After Employee Severely Burned by Ammonia

 

  • 01/11/2019 – OSHA Trade Release – U.S. Department of Labor Provides Compliance Assistance Resources to Protect Workers from Falls
  • 01/11/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Dallas Utilities Contractor After Worker Suffers Fatal Gas Exposure
  • 01/10/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Utility Contractors Following Fatal Explosion in Wisconsin
  • 01/10/2019 – Region 9 OSHA News Release – U.S. Department of Labor Cites U.S. Postal Service After Heat-Related Worker Fatality in Southern California
  • 01/09/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Solar Contractor After Employee Fatality at Kansas Jobsite
  • 01/08/2019 – Region 3 OSHA News Release – U.S. Department of Labor Cites Pennsylvania Excavation Company For Exposing Employees to Trenching Hazards
  • 01/08/2019 – Region 3 OSHA News Release – U.S. Department of Labor and Turner Construction Partner To Promote Workplace Safety During Hospital Project in Erie, Pennsylvania
  • 01/08/2019 – Region 7 OSHA News Release – U.S. Department of Labor Urges Employers and Employees To Remain Vigilant About Possible Winter Hazards
  • 01/08/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor After Employee’s Fatal Fall at Missouri Jobsite
  • 01/07/2019 – Region 2 OSHA News Release – U.S. Department of Labor Cites Contractor Following Crane Collapse At New York City Construction Worksite
  • 01/03/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio UPS Facility for Blocking Exits
  • 01/03/2019 – Region 8 OSHA News Release – U.S. Department of Labor and Montana Contractors Association Sign Alliance to Foster Safer Workplaces

 

This article was originally posted to Kelley Drye’s Labor Days Blog.

This Advisory supplements our previous advisories dated January 2018, December 2016, December 2015 (as supplemented in January 2016), October 2014, October 2013, November 2012, November 2011, and October 2010, addressing requirements of the Affordable Care Act (“ACA”). Below is a summary of recent developments impacting health care reform, as well as other recent developments affecting employer-sponsored health plans that will be relevant for employer-sponsored plans in 2019.

Review and Update Plan SPDs
Given the changes that have been made to health care reform over the years (legislative changes, new regulations, courts cases, etc.), clients are well advised to take a fresh look at their summary plan descriptions for certain less obvious changes that might be required. While clients might annually update their summary plan descriptions in ordinary course for co-pays, eligibility and contact information, there are additional technical changes that may or may not be required for certain arrangements.

Individual Mandate Repeal
The Tax Cuts and Jobs Act (the “Act”) eliminates the shared responsibility payment for those individuals who fail to maintain minimum essential health coverage beginning January 1, 2019. The Act did not, however, repeal the employer shared responsibility mandate or reporting requirements. Those requirements are still in play, and the IRS has been actively enforcing these requirements against employers.

ACA Information Reporting Deadlines Extended
The IRS has extended the due dates for furnishing individuals with 2018 ACA information returns on Forms 1095-B and 1095-C from January 31, 2019 to March 4, 2019. The IRS did not, however, extend the deadline for filing ACA information returns with IRS, which remains February 28, 2019 if not filing electronically and April 1, 2019 if filing electronically.

The IRS has extended good-faith transition relief from ACA reporting penalties for employers that can demonstrate they have made good faith efforts to comply with the 2018 information reporting requirements. This relief, however, applies only to furnishing and filing incorrect or incomplete information and not to a failure to timely furnish or file a statement or return. In the latter case, penalties may apply absent reasonable cause.

To read the full advisory on the Kelley Drye website, click here.

This article was written by Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn, and originally posted on Conn Maciel Carey’s OSHA Defense Report.

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1st every year, however, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary:

  1. Not having a management representative with high enough status within the company “certify” the 300A;
  2. Not posting a 300A for years in which there were no recordable injuries;
  3. Not maintaining a copy of the certified version of the 300A form;
  4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded; and
  5. Confusing or conflating the requirement to Post a 300A in the workplace with the requirement to electronically submit 300A data to OSHA’s web portal.

1.  Certifying the 300 Log and 300A Annual Summary

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.”  Specifically what the company executives are certifying is that they:

  1. Personally examined the 300A Annual Summary Form;
  2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
  3. Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.

A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.”  As set forth in 1904.32(b)(4), company executives include only the following individuals:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest-ranking company official working at the establishment; or
  • The immediate supervisor of the highest-ranking company official working at the establishment.

2.  Posting the 300A Annual Summary

After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment.  Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.

3.  Maintaining a Copy of the 300A for Five Years

After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of:

  • The underlying OSHA 300 Log;
  • The certified 300A Annual Summary Form; and
  • Any corresponding 301 Incident Report forms.

In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified,” typically by a handwritten signature, and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.

4.  Updates to OSHA Injury and Illness Recordkeeping Forms

Another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs.  However, OSHA’s Recordkeeping regulations require employers during the five year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.  This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.

5.  Not to be Confused with Electronic Recordkeeping

As mentioned above, the February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s E-Recordkeeping Rule.  The deadline in 2019 for employers to electronically share data from their 2018 300A forms with OSHA is currently set for March 2, 2019, naturally trailing the deadline to prepare the summary data from which the E-Recordkeeping submission derives.

Note, there are still a few State OSH Programs that have not adopted the E-Recordkeeping Rule, despite OSHA’s directive in the final rule for state plans to adopt substantially identical requirements within six months after its publications, and an April 30, 2018 press release announcing that all employers in State Plan States should implement the Rule. To date, Maryland, Wyoming, and Washington have still not adopted an E-Recordkeeping Rule, and covered establishments in those states are technically not required to submit data by the March 2nd deadline.

The future of the Rule in general, not just those delinquent states, is uncertain.  After years of industry backlash and multiple legal challenges, OSHA issued a Notice of Proposed Rulemaking on July 30, 2018 to revise the E-Recordkeeping Rule.  Rather than settling the status of the E-Recordkeeping Rule, this proposal will likely just mire the rule in further controversy.  Here specifically is what the proposal entails:

  • Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
  • Require employers to submit their Employer Identification Number (EIN) along with the data.

83 Fed. Reg. 36494 (July 30, 2018).

The Proposed Rule includes only one significant change to the current regulation – eliminating the requirement for the largest employers (those with establishments with 250+ employees), to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data, and does not touch the troubling anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs).  There are also pending cases in federal courts challenging the data submission and anti-retaliation requirements.

All of that is to say, the future of E-Recordkeeping is not entirely clear… unlike the well-established duty to post those 300A forms in a couple of weeks!