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Duff: Report Recommends OSHA Private Right of Action

By Michael C. Duff

Monday, August 3, 2020 | 344 | 0 | min read

Departing sharply from notions of “liability immunity,” member scholars at the Center for Progressive Reform (CPR) — including yours truly — have offered in a new report sustained argument for establishment of a Private Right of Action under the OSH Act.

Michael C. Duff

Michael C. Duff

Although not directly related to workers’ compensation, occupational safety regulation and enforcement — like tort and workers’ compensation — proceed from the proposition that one of the first duties of government is to protect its citizens, including those who happen to be working. Sometimes, however, government must be “poked” to remind it of this duty.

If a government agency lacks the resources or political will to accomplish its statutory mandate, “private attorneys general” may be able to lend assistance. It is worth noting that the House of Representatives passed a bill last February — the Protecting the Right to Organize Act (the “PRO Act”) — that would amend labor law by allowing a private right of action under the National Labor Relations Act.

Originally, I did not think the PRO Act had much chance of passing the Senate. But the political dynamics are changing dramatically and rapidly. I suspect the Senate may feel very different next January.

Given the obvious ineptitude of OSHA during the pandemic, we think the potential for our recommendation receiving serious consideration by policymakers is high. From the CPR Report:

As the 50th anniversaries of the Occupational Safety and Health Act (OSH Act) and OSHA approach in December 2020 and April 2021, respectively, it is time to address the law’s and agency’s shortcomings and chart a course of action to revolutionize worker health and safety for the next 50 years.

Fixing the current system requires an updated and vastly improved labor law that empowers workers to speak up about health and safety hazards, rather than risk their lives out of fear of losing employment and pay. It also requires that workers be empowered to fight back when government agencies fail to enforce safety and health requirements.

Our vision is to guarantee all workers a private right of action to enforce violations of the OSH Act, coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. In addition, this private right of action should cover the millions of workers who are currently unprotected by OSHA, including misclassified independent contractors, agricultural workers and public sector workers in states under federal OSHA’s jurisdiction.

Congress should also ban mandatory arbitration as a condition of employment, since the purpose of such arbitration requirements is to disempower workers by denying access to the courts.

Finally, Congress should require that all states and territories that operate their own occupational safety and health programs in lieu of federal OSHA incorporate a private right of action into their state plans.

Promoting laws and regulations that safeguard workers physically and financially and that rebalance the power dynamic between employers and workers is a necessary and vital step in building strong, resilient families and communities. Providing a private right of action, a common tool in a variety of other laws, is a long-overdue measure that would empower workers to ensure safer and healthier workplaces when the agency tasked with protecting them is unwilling or unable to do so.

Engaging workers more meaningfully in the enforcement of health and safety standards will not only improve their immediate conditions but also disrupt the cycle of worker disempowerment that contributes to unsafe and unhealthy working conditions, giving workers a voice to achieve lasting improvements in the workplace.

Michael C. Duff is associate dean for student programs and external relations, and is professor of law, at the University of Wyoming College of Law. This entry is republished from the Workers' Compensation Law Professors blog, with permission.

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