Over the last several decades, through a concentration of economic and political power by corporate executives and their allies in government institutions, workers have been systematically disempowered and silenced. Two important results of this dynamic are that the nation's workplaces are not nearly as safe or healthy as they need to be to protect all workers, and workers lack the power they deserve to speak up against exploitation without fear of significant retaliation.
The handling of the coronavirus pandemic is emblematic of several decades of choices by our national and state leaders that prioritize short-term profits ahead of people. At this very moment and in plain view, President Trump and his Occupational Safety and Health Administration (OSHA), conservatives in Congress, and many state leaders are failing to protect workers from the potentially fatal risks of COVID-19. Significantly, this increased burden is not equally shared by all. Black, Latinx, and other people of color are disproportionately represented in many occupations that make up the low-paid, high-risk jobs, such as health services, child care, public transit, grocery clerks, janitorial services, and meatpacking, which are deemed essential during the pandemic.
While these workers are deemed essential, our governing institutions have done little to safeguard them from the health hazards or economic challenges exacerbated by COVID-19. Instead, our leaders are sending them to work without proper equipment and without mandating robust protections to ensure they do not get sick or spread COVID-19 to their families and the public at large.
It does not have to be this way. Agencies like OSHA should play a key role in setting policies that ensure health, safety, stability, and power for workers in addressing workplace hazards. But since 1970, Congress and the White House have hollowed out the agency, denying it resources and trimming its authority, leaving it in a weak state. The failure has been bipartisan. Republicans have been overtly hostile to OSHA, and Democrats have often lacked the political will to pursue progressive standard-setting and enforcement policies.
Consequently, OSHA has failed not only to protect workers from existing hazards – ranging from unsecured trenches to infectious diseases like COVID-19 – but has also taken minimal action to tackle emerging risks, such as those associated with climate change, the reshoring of manufacturing jobs, increased automation, and the expansion of artificial intelligence in the workplace.
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.
On December 29, 1970, President Richard Nixon signed into law the Occupational Safety and Health Act (OSH Act) to “assure so far as possible every working man and woman in the Nation safe and healthful working conditions.” The law created the Occupational Safety and Health Administration (OSHA), which opened its doors on April 28, 1971. As the Act and agency celebrate their 50th anniversaries in December 2020 and April 2021, respectively, important progress has been made toward reducing worker fatalities and injuries through federal occupational health and safety standards, regulations, and enforcement. At the same time, it is important to acknowledge the shortcomings of OSHA and the OSH Act, as well as the need to learn from those failures and chart a course of action to revolutionize worker health and safety for the next 50 years.
The reduction in workplace fatalities year-over-year since the OSH Act became law is evidence of its positive effect on improving working conditions.
Despite these improvements, OSHA and employers have fallen far short of ensuring safe and healthful working conditions for every worker. More than 5,000 workers still die each year in workplace incidents, tens of thousands more die from work-related occupational diseases, and workers incur millions of work-related injuries. Of course, these bare figures understate the true impact of OSHA's failure to protect worker safety and health – the emotional and financial costs to these workers’ families and communities do not get the attention they deserve, and the cumulative numbers gloss over racial disparities.
Despite early progress, backsliding began during the deregulatory frenzy of the Reagan administration, and the agency has never fully recovered its bearings. Consequently, OSHA’s progress on improving working conditions has stalled over the past four decades due to funding constraints, intense political pressure, and unhelpful court decisions. The failure has been bipartisan. Republicans have been overtly hostile to OSHA, and Democrats have often lacked the political will to pursue progressive standard-setting and enforcement policies. The agency also has issued only a handful of new health and safety standards over the past two decades, and it has declined to move forward to address such critical hazards as infectious diseases like COVID-19, line speeds in meatpacking plants, ergonomic hazards, workplace violence, and extreme heat.
OSHA's record of inaction has left workers in a range of industries vulnerable not just to longstanding hazards, but to a host of emerging dangers, as well. For example, climate change poses many threats, some legitimately existential, but among them are significant hazards to workers’ health and safety and the economic stability of working families, employers, and the economy as a whole. Similarly, we must grapple with major changes in the nature of work, including the "reshoring" of dangerous manufacturing jobs returning from overseas plants, increased automation, and the expansion of artificial intelligence capabilities into the workplace.
One manifestation of the funding shortages and political interference hamstringing OSHA is that its inspection and enforcement resources and authority simply have not kept pace with the growing number of workers and workplaces across the country or with the evolving nature of work. As of 2018, the agency employed 1,815 inspectors (752 federal and 1,063 state) to cover the 9.8 million workplaces within the statute’s jurisdiction. In other words, there is one inspector for every 79,262 workers and, at their 2018 pace, OSHA and its counterparts can perform one inspection per worksite every 134 years.
The coronavirus pandemic and workers' unmitigated exposure to the deadly disease that causes COVID-19 is a prime example of the agency’s failure to protect workers in the modern era. Since the beginning of the pandemic, frontline workers have been forced to labor without basic protective gear such as masks, gloves, soap, or water; without sufficient distancing between workstations and coworkers; and alongside infected colleagues. Black, Latinx, and other people of color are disproportionately represented in many occupations that make up the low-paid, high-risk jobs, such as health services, childcare, public transit, grocery clerks, janitorial services, and meatpacking, which are deemed essential during the pandemic. Yet OSHA has been absent, even so far as disregarding thousands of complaints and retaliation claims filed by workers and their representatives. The agency has also ignored calls by unions and workers to adopt emergency standards to protect workers from infectious diseases, including coronavirus. In fact, when unions challenged OSHA’s decision not to put in place an emergency standard for infectious diseases, the agency spent precious resources defending its inaction in court, rather than putting those resources to use protecting workers.
Without an infectious diseases standard, the agency is forced to rely on the general duty clause – a power it rarely utilizes – to cite employers for exposing workers to coronavirus. Under the general duty clause, employers have a general duty to provide a workplace free from recognized hazards that cause or are likely to cause death or serious physical harm. The agency has also issued a number of guidance documents to various industrial sectors, not one of which is enforceable. And as noted above, the agency has largely ignored complaints from workers and their representatives. For those few complaints it has followed up on, the agency has sent letters to companies notifying them of the complaint and asking them to take precautions. Other complaints are handled using the agency’s “rapid response investigation” procedures, which rely on the employer to inspect itself and report its findings to the agency.
To grasp the vacuum of enforcement around COVID-19 complaints, as of July 21, the national office of OSHA had only opened 720 virus-related inspections (many of which are not on-site inspections) and had issued only four citations for coronavirus in the workplace – several months after the pandemic began to spread across the United States infecting thousands of workers. OSHA issued the citations against one nursing home facility in Georgia and three in Ohio, citing a minor reporting violation in the Georgia facility and respiratory protection violations in the Ohio facilities.
A major gap in the OSH Act is its failure to provide workers a private right of action to enforce health and safety standards and regulations. Enforcement relies on government agencies, but recognizing that those agencies sometimes fall short – because of budget shortages, ideological objections, the absence of political will, or sheer incompetence – Congress has frequently written provisions into major statutes allowing private plaintiffs to bring litigation to enforce the law. The Clean Air Act and the Fair Labor Standards Act are two prominent examples of laws that allow citizen suits of this sort. The Occupational Safety and Health Act has no such provision, and as a result, workers must rely on OSHA and its state counterparts to respond to complaints by conducting inspections and issuing citations. As a result, when OSHA fails to or chooses not to do its job, as it has failed during the coronavirus crisis, workers have no recourse.
Instead, the Act enlists workers as OSHA's “eyes and ears,” helping the agency prioritize its limited resources by authorizing workers to file complaints that help the agency focus on the most dangerous worksites. To encourage workers to speak up by filing complaints about hazardous conditions, the Act prohibits employers from retaliating and includes whistleblower protections in the event an employer does take an adverse action. Unfortunately, the whistleblower protections in the law are now so weak and outdated that workers have few genuine protections from retaliation, and labor attorneys rarely, if ever, advise their clients to rely on the anti-retaliation provisions of the statute in deciding to come forward with concerns. Their calculus: An OSHA that has declined to do its job by conducting inspections is not likely to vigorously defend whistleblowers, either. As the number of inspectors declines, input from workers is all the more important to the agency's efforts to enforce its standards. Yet workers still lack any mechanism for enforcing the OSH Act, and they have little protection if they speak up about hazards they encounter.
Another significant failing of the Act is that it does not cover millions of workers, including public sector workers, many farmworkers, and “gig workers” misclassified as independent contractors. In the context of the coronavirus, that failing of the law has been particularly significant.
Another significant failing of the Act is that it does not cover millions of workers, including public sector workers, many farmworkers, and “gig workers” misclassified as independent contractors. In the context of the coronavirus, that failing of the law has been particularly significant. Federal agency employees and about 8 million state and local government employees, many of whom are providing critical health and other services amid the pandemic, have no protections under the OSH Act, and no support from OSHA, to help protect them from exposure to COVID-19 in their workplaces. Similarly, many farmworkers, most of whom are Hispanic or Latinx, work side-by-side around the clock to prevent interruptions in our food supply chain and have no recourse if they contract the deadly disease. And most so-called “gig workers,” such as the shoppers and drivers for Instacart, are left to find their own personal protective gear and their own resources on how to properly protect themselves from coronavirus on the job. As with many inequities in our society, COVID-19 has brought new attention to systemic problems that public interest advocates have been working on for years. For local government employees, farmworkers, “gig workers,” and others, the OSH Act’s loopholes demand a fix that will empower them to achieve better protections from myriad hazards.
Knowing what we know about the reasons for OSHA’s stalled progress and looking ahead to the next 50 years, one of the most significant fixes that Congress must make to the OSH Act is to provide workers a private right of action to ensure safe and healthy workplaces. This right must be coupled with incentives for speaking up and strong whistleblower protections to ensure workers can and will utilize their new authority. Congress should also expand the scope of the OSH Act to cover the millions of workers who are currently unprotected on the job. Providing to workers a private right of action is a necessary reform that would radically transform the future of work in the United States.
Empowering workers with a private right of action is critical to ensuring safer and healthier workplaces because, even with a robust regulatory system, there will always be limits on what OSHA has the resources and political will to do. When the prospect of a private lawsuit is put on the table, the agency may be more motivated, even compelled, to pursue the serious allegations raised by employees.
Empowering workers with a private right of action is critical to ensuring safer and healthier workplaces because, even with a robust regulatory system, there will always be limits on what OSHA has the resources and political will to do. When the prospect of a private lawsuit is put on the table, the agency may be more motivated, even compelled, to pursue the serious allegations raised by employees. Further, when OSHA’s resources are especially limited due to budget cuts or an unfriendly administration, private citizen suits can help OSHA identify problematic worksites despite a shortage of inspectors. Finally, employers who have relied on OSHA's apparent disinterest in enforcing the law would have reason to fear lawsuits filed by their own employees, and thus be better motivated to protect their workers from harm.
In the pages that follow, we outline what such a private right of action provision would entail. Lawsuits filed under the provision would be premised on an employer’s violation of an OSHA standard, regulation, or the OSH Act’s general duty clause. Workers and their representatives would continue to have the option of filing a complaint with OSHA and navigating the traditional process with the agency. But providing workers and their representatives a private right of action to enforce violations in court would provide an alternative means of securing a safe and healthy workplace where OSHA has chosen not to inspect or issue a citation.
As noted, model frameworks already exist for citizen enforcement of agency regulations, often called a “citizen suit,” in several federal environmental laws such as the Clean Air Act and the Clean Water Act. Legislation introduced in 2019, the Protecting the Right to Organize (PRO) Act, proposes to provide workers a private right of action under the National Labor Relations Act (NLRA). Further, state laws, such as the California Private Attorney General’s Act, could serve as a model.
This report will examine the many components required to create an effective private right of action, including a notice of intent to sue, standing, statutes of limitation, discovery, robust whistleblower protections, strong remedies and a bounty provision that pays workers 30 percent of civil penalties recovered, and a prohibition on forced arbitration requirements. Ensuring workers have access to the courts, an incentive to bring a case to court, and strong protections from retaliation when they do step forward are all critical to creating a private right of action that workers can actually utilize. In each section, we explore model statutory language that already exists or has been proposed and that could be adopted for the OSH Act. Additionally, we conclude with a discussion of how a federal cause of action would be incorporated into existing state plans for those states and territories that choose to operate their own health and safety programs in lieu of federal OSHA.
In existing laws that provide a private right of action, the right to file a lawsuit only becomes available after the intended plaintiff provides a “Notice of Intent to Sue” to the enforcement agency and the party alleged to be in violation. These notices require a “waiting period” to give the alleged violator an opportunity to correct the problem and the agency an opportunity to “diligently enforce” the statute. If the agency has already begun, or chooses to begin, an enforcement action during the waiting period, the party filing a lawsuit may not be able to proceed with their case.
Under many federal environmental statutes, for example, potential plaintiffs must give federal and state officials, as well as the noncomplying company, 60 days’ notice of their intent to sue. If the 60 days elapses without government enforcement action, plaintiffs may then file their case in court. Environmental law practitioners indicate that 60 days’ notice is too long, especially in imminent danger cases. In fact, in such cases, the Resource Conservation and Recovery Act (RCRA) requires no notice of an intent to sue.
Similarly, under the PRO Act, employees would have the right to file a civil action against an employer for violating certain rights under the Act. The employee could not file a civil action until 60 days had elapsed from when they filed a charge with the National Labor Relations Board (NLRB) alleging an unfair labor practice. The employee would be able to file an action in district court within 90 days of either (i) the expiration of the 60-day notice period or (ii) the Board notifying the employee that it will not issue a complaint against the employer, whichever occurs earlier.
Further, under the California Private Attorney General’s Act, once an employee files a notice of intent to sue, the Labor and Workforce Development Agency (LWDA) has 60 days to intervene. The agency has 65 days to notify the employee or representative of its decision on whether or not to investigate. If the agency provides notice that it does not intend to investigate or if it does not respond within 65 days, the employee may file a civil action in court. If the agency decides to investigate, it has 120 calendar days to issue a citation, with the possibility of an additional 60-day extension. If the agency does not do so, the employee may proceed with the civil action. Because the California Private Attorney General’s Act allows employers a right to cure and a long period for the agency to act, the statute is better tailored to wage and hour violations than health and safety violations, although the statute itself does not preclude such cases.
The primary purpose of the notice of intent to sue in the workplace health and safety context would be to put the employer on notice and to allow the agency an opportunity to inspect and issue a citation—to “diligently enforce” the statute.
Like existing citizen suit provisions, the primary purpose of the notice of intent to sue in the workplace health and safety context would be to put the employer on notice and to allow the agency an opportunity to inspect and issue a citation—to “diligently enforce” the statute.
The appropriate deadline for OSHA to respond to a notice of intent to sue should be two-fold: OSHA should have a deadline for deciding whether to inspect and another for deciding whether to issue a citation. The two deadlines ensure that the agency is in fact “diligently prosecuting” the violation. OSHA cannot be allowed to help an employer escape liability by conducting an inspection and then never following through with a citation or a decision not to cite.
The appropriate deadline in the typical case should be five days for OSHA to complete an inspection and 30 days to issue a citation. If OSHA has already inspected prior to the notice of intent to sue, but had not issued a citation, OSHA would have only 30 days to issue a citation following the receipt of the notice. OSHA’s Field Operations Manual currently requires that inspectors issue citations within six months, the maximum time presently allowed under the OSH Act. We have chosen to require inspectors to act more quickly in the case of private citizen suits to encourage OSHA to act expeditiously because we think it likely that hazards sufficient to prompt employees to consult with lawyers are egregious. Further, by requiring faster inspection and citation times under the Act, OSHA may be encouraged to respond to employee complaints it receives so that employees do not feel a need to file a notice of intent to sue. If the agency does not intend to act, the employee should have the ability to proceed to court promptly to act in OSHA’s stead.