By Erin Dougherty Foley and Craig B. Simonsen

pic.docxIn a recent “shinny” blog by Jesse Lawder, the U.S. DOL’s Chief of Staff (Acting), Office of Public Affairs, we are told – again – that an “open, transparent government is one of the hallmarks of democracy.” It seems, though, that the government is shining its lights on business interests.

Lawder’s purpose for the blog was in support of Sunshine Week (March 15-21, 2015), a national initiative to promote a dialogue about the importance of open government, freedom of information, and the public’s right to know. He indicates that “we understand the importance of collaborating closely and transparently with all stakeholders, including employers, to give workers a voice. This is not just the right thing to do, it’s also good for business and good for the economy.” (Emphasis added.)

To demonstrate one of the DOL’s “flagship initiatives” for open government, Lawder points to the Online Enforcement Database (OED). This website combines the enforcement data, collected by the Wage and Hour Division (WHD), the Office of Federal Contract Compliance Programs, the Employee Benefits Security Administration (EBSA), the Occupational Safety and Health, Administration (OSHA), and the Mine Safety and Health Administration (MSHA), in the exercise of their missions, to make it “accessible and searchable.” DOL indicates that it intends, also, “to engage the public in new and creative ways of using this data.”

While the OED was first launched in April 2010, it now includes previously unpublished information. Prior to OED’s introduction only OSHA and MSHA databases were available online. Now, however, the website boosts geocoding with Wage and Hour case and violation data available to map, along with a FLSA Repeat Violators chart. While not previously available, now you can search select databases for both a Company Name and Year of possible violation.

Other added features include new agency specific search criteria for the following agencies datasets:

  • WHD can now be searched using: Violation by Act, FLSA Repeat Violator, Civil Monetary Penalty, and Back Wages Agreed to Pay.
  • EBSA can now be searched using: Plan EIN, Plan Admin, Plan Name, Case Type, and Penalty Range.
  • OSHA can now be searched using: OSHA Office, Case Status, Inspection Category, Inspection Type, Union Status, Violation Type, Employees Exposed, Accident, and Degree of Injury.
  • MSHA can now be searched using: Mine ID or Current Mine Name, Operator ID or Name, Controller ID or Name, Mine Type, Coal/Metal, Mine Status, Significant Violation, and Violation by Act.

Lawler notes that the OED is used frequently by the press and other stakeholders. “It allows the public to look closely at industry and corporate trends – assessing gaps and possible areas where policies could be altered or enhanced to provide even more value.”

Businesses and industries may well be alarmed at the ever growing easy access to and availability of what had always been considered closely held “private” information. While making this information available on a huge scale sounds laudable, companies may wish to look [first] at the data and information that is being presented about their interests. While the genie seems to be out of the bottle, having a complete picture of the genie before being asked about it, or being able to respond to data that might be incorrect, may be a corporate plan worth considering.

For additional information regarding these “open and transparent” databases, or the impact on business, please contact the authors, or your Seyfarth attorney.