Scroll to the bottom of this post to watch the recording of a related webinar or view on YouTube.
When the Occupational Safety and Health (OSH) Act was enacted 50 years ago, it was hailed as critical legislation that would make workplaces safer and healthier for all. Thanks to this law, the Occupational Safety and Health Administration (OSHA) has made great strides toward protecting worker health and safety. Unfortunately, the law didn't go far enough then — and it doesn't go nearly far enough now.
The law, essentially unchanged since its enactment in 1970, has not kept up with the growing scale and changing nature of work in the 21st century. Rather, due to limited resources and authority and, at times, lack of political will, the agency has failed to address numerous well-known workplace hazards or emerging ones, like COVID-19, climate hazards, and artificial intelligence.
One of the biggest gaps in the law is that it authorizes OSHA alone to enforce the statute. Thus, if workers are exposed to toxic substances like liquid nitrogen, forced to work on dangerous machines, or not provided personal protective equipment (PPE), they must rely on OSHA and its state counterparts to enforce the law. Workers may submit a complaint to the agency alerting it to a violation, but workers have no path forward in the courts when the agency fails to or chooses not to do its job.
You read that right: Workers can't sue their employers to compel them to comply with OSHA's health and safety standards, even if the violations could be deadly.
Broad Support for Workers' Rights
The good news is that there is a new political climate in Washington and new hope for workers' rights. The Biden-Harris administration is broadly supportive of workers' rights, as is the Democratic Party, which now controls both houses of Congress. Together, the administration and the 117th Congress can fill the gap in the 1970 statute by passing legislation that deputizes workers to enforce the law.
In a recent report looking ahead to OSHA's next 50 years, my colleagues and I lay out the details about what legislation creating a private right of action should include. We call for legislation that would:
- Incentivize workers to speak up by creating a “bounty provision” that pays workers 30 percent of civil penalties recovered, with 70 percent paid directly to OSHA;
- Ensure attorneys will represent workers in litigation by guaranteeing the recovery of attorney’s fees in successful cases;
- Modernize whistleblower protections so that they protect workers who speak up about employer infractions;
- Ban mandatory arbitration as a condition of employment so that workers have guaranteed access to the courts;
- Expand the OSH Act’s coverage to workers currently exempt from the law, including misclassified independent contractors and public sector workers; and
- Expand coverage to all workers in states that operate their own health and safety plans by requiring those states to incorporate the private right of action into their programs.
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.
Providing workers a private right of action 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.
To learn more, watch the webinar recording below, which covers federal and state efforts to legislate private rights of action, empowering workers to enforce occupational health and safety laws. You can also view it directly on YouTube.