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Speak Out For Safety

Will Employees Be Able to Sue Over OSHA Violations?

Feb. 22, 2021
Unions put this potential change on their legislative wish list.

If some workers’ rights advocates have their way, in the near future Congress will take the first steps towards making it possible for workers to sue their employers for Occupational Safety and Health Administration (OSHA) violations.

As of now, only OSHA (or an OSHA state plan agency) can pursue claims under the terms of the Occupational Safety and Health Act (OSH Act) by choosing to impose citations and civil penalties against employers who are found to have violated agency regulations.

OSHA largely relies on workers to inform the agency about unsafe working conditions and offers legal protection for those whistleblowers who choose to do so, but what is termed a private right of action for employees—a personal lawsuit —is not possible under the current law, note attorneys Courtney M. Malveaux and Catherine A. Cano of the Jackson Lewis law firm.

“A private right of action under the OSH Act could have a significant impact on the balance of power between employers and employees and, potentially, independent contractors,” they say. “First, it would substitute OSHA, an agency with more than 50 years of experience investigating and evaluating workplace hazards, with an employee with little or no background in the application of OSHA standards.”

Second, it may force employers to defend meritless claims, they emphasize. “Private litigation potentially could be available without the benefit of OSHA having conducted an inspection or even after OSHA investigated and determined there was no violation.”

Legislative proposals including a private right to action have been introduced several times in the House of Representatives in recent years, but thus far none of those measures have ever made it out of committee.

However, the National Council for Occupational Safety and Health (COSH), in its recently published 2021 National Agenda for Worker Safety and Health, called on the Biden administration to back a version of the Protecting America’s Workers Act (PAWA) incorporating a private right of action into the OSH Act.

In addition, the liberal think tank, the Center for Progressive Reform (CPR), has declared that now is a good time for Congress to take up legislation that would revamp the OSH Act which, along with accomplishing other goals designed to improve worker safety, smooth the way for a private right of action.

Friendly Political Climate

According to CPR, funding shortages and a disproportionate number of inspectors compared to workers and worksites have left workers vulnerable to workplace hazards. CPR argues that providing employees a private cause of action under the OSH Act can fill those gaps, better help OSHA identify problematic worksites, and motivate employers to improve their measures designed to keep workers from harm or find themselves facing litigation, among other things.

The CPR proposal would incorporate an expedited administrative agency review into the process that is slated to commence with an employee complaint and then result in an issuance of a “notice of intent to sue.” OSHA would have a brief period to conduct an inspection (up to five days, depending on the alleged severity) and issue a citation (30 or three days, depending on the severity).

The complaining party would have 90 days after OSHA’s failure to issue a citation to file suit in state or federal court, and the employer would be barred from removing the case to federal court. CPR also proposes extending the statute of limitations for bringing such a suit from six months to five years.

In a February blog entry, Katie Tracy, CPR senior policy analyst, wrote, “The good news is that there is a new political climate in Washington and new hope for workers’ rights.” She couldn’t be more right. From the day he was sworn in, President Biden acted swiftly to appoint new pro-union government officials and issue executive orders embodying labor’s agenda.

The Democrat-controlled Congress also is considering legislation called the Protecting the Right to Organize Act (PRO Act), a massive bill that includes a broad range of proposals sought by organized labor, including overturning state right-to-work laws and imposing California’s law reclassifying independent contractors as employees at the federal level.

Tracy added, “While Biden's appointees to OSHA and other key labor posts will likely respond more favorably in terms of enforcing the law against employers who disregard health and safety, it is still imperative that Congress and the administration codify a private right of action.”

She also believes that doing so “will bolster existing enforcement activities and help OSHA achieve its mission of providing safe and healthy working conditions to all workers across the United States. Further, it will guarantee workers a role in the enforcement of the statute under future administrations—including those that may seek to silence and disempower workers when they need protections most.”

Malveaux and Cano are less optimistic about what the end result will be if a private right to action is adopted. “The proposed incentives for workers and their attorneys only increase the risk of unfounded claims,” they assert. “The threat of paying attorney’s fees (both to defend themselves and if a plaintiff succeeds) puts pressure on businesses to settle, regardless of the merits of a claim.”

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