Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts.
OSHA has so far declined to adopt an emergency standard to address COVID-19, despite repeated calls by unions, workers, and advocates to do so. Moreover, rather than enforcing existing standards or holding employers accountable for violating their general duty to provide safe and healthy working conditions, the agency is sitting on the sidelines, watching the crisis unfold.. OSHA's state and territorial counterparts aren't doing much better – California has an existing standard, and only Virginia and Oregon's occupational safety and health programs have taken action to institute an emergency standard. Elsewhere, workers are at the mercy of OSHA's disinterest.
As the pandemic makes crystal clear, workers need and deserve the right to step up and enforce the law when OSHA is unable or unwilling to do its job. In a new CPR report, CPR Member Scholars Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor, and I call on Congress to update the OSH Act and provide workers with a private right of action.
By empowering workers to enforce the law on OSHA's behalf (or in its stead, as the case may be), Congress could transform the OSH Act, empowering employees to overcome OSHA's failure to ensure that all workers have healthy and safe workplaces. The idea is premised on citizen suit provisions found in numerous other federal laws, from the Fair Labor Standards Act to the Clean Air Act.
A private right of action is needed now to breathe life into a law that no longer lives up to its mission of protecting workers and to an agency that has long been debilitated and sometimes unsympathetic. The current crisis is emblematic of an agency that is more inclined to ignore workers during a crisis than to step up to the challenge the crisis poses. And the coronavirus is not the only crisis workers face. We need a stronger statute and a committed OSHA to empower workers and officials to collaborate on tackling unaddressed existing hazards and emerging ones, such as toxic chemicals, ergonomics, automation and artificial intelligence, and climate change.
In our report, OSHA's Next 50 Years: Legislating a Private Right of Action to Empower Workers, we offer several recommendations about what is needed to ensure this new private right of action is strong and would actually be utilized by workers. Some of the highlights include:
- Incentivizing workers to speak up by creating a bounty provision that pays workers 30 percent of civil penalties recovered, with the remaining 70 percent paid directly to OSHA.
- Ensuring attorneys will represent workers in litigation by guaranteeing the recovery of attorney's fees in successful cases.
- Providing workers a shield from retaliation through fully modernized whistleblower protections designed to protect workers and not employers.
- Guaranteeing access to the courts by prohibiting employer-mandated arbitration agreements intended to circumvent cases under this new right.
- Extending the OSH Act's coverage to farmworkers, misclassified independent contractors, and millions of public sector workers not covered by their states by redefining employee and employer under the OSH Act.
- Expanding coverage to all workers in states that operate their own health and safety programs in lieu of federal OSHA by requiring those states to incorporate the private right of action into their programs.
You can read about these and other recommendations in the report here.
As we explain in the report, 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.