Legislative Update: Bill to Overhaul Nation's Workplace Safety Law Introduced in Congress

An occupational safety bill that would expand employee rights and remedies, but also vex employers with increased legal risk, is proposed by prominent Democratic legislators, with the party's control of Congress foretelling a congenial reception. The "Protecting America's Workers Act" (PAWA) seeks to amend the Occupational Safety and Health Act of 1970 to increase penalties for OSHA violations when workers are killed or injured on the job, expand the definition of and remedies for unlawful retaliation, require employers to provide safety equipment to employees at no cost, and cover many government employees currently excluded by the OSH Act

On April 26, 2007, Senators Kennedy (D-MA) and Murray (D-WA) reintroduced legislation originally proposed in June 2005. Representatives Woolsey (D-CA) and Hare (D-IL) launched identical legislation in the House of Representatives.

Some of the major changes in the proposed measure are summarized below:

Changes to the OSH Act in the PAWA Bill

Increased penalties. The bill increases the Occupational Safety and Health Administration's (OSHA) civil penalties. Currently, an employer who receives a willful violation may be assessed a maximum of $70,000 per violation. That amount is increased to $100,000 under the proposed legislation. In the event an employee's death in the workplace resulted from a willful violation, an employer would face a penalty of as much as $250,000 and a minimum of $50,000, instead of the current statutory $5000 minimum. Other civil penalties would increase and also would be adjusted at least once every 4 years to reflect changes in the Consumer Price Index. Penalties for garden variety "serious" violations, for example, set a maximum of $7000 per violation since the early 1990's, would go to $10,000 immediately and could be expected to increase regularly thereafter. For "serious" violations resulting in fatalities, civil penalties would range from $20,000 to $50,000. OSHA is required to keep employees who are injured and families of employees who are killed as a result of an alleged OSHA violation apprised of case developments under the bill. These individuals also have a right to be heard before any settlement is reached.

Criminal sanctions would be increased as well. Under current law, an employer can be charged with a misdemeanor when a willful violation causes an employee's death. The proposed bill makes felony charges available to federal prosecutors for an employer's willful violations that result in an employee's death or serious bodily injury. Substantial criminal sanctions, with prison sentences up to 20 years and stiff monetary penalties under the Criminal Code, may be imposed.

Settlement of OSHA Citations More Difficult. Under the present law, employers can negotiate with OSHA to eliminate a citation, reduce the classification of a citation (e.g., from "willful" to "serious" or "serious" to "other-than-serious"), or to reduce the penalty for a citation, without employees or their unions having the right to object to an eventual settlement. Employees and their representatives only have the right to object to the period allowed for abatement of a violation. They seldom avail themselves of the opportunity. The bill changes the landscape. Before OSHA can enter into an agreement to withdraw a citation, it will have to give prompt notice to affected employees or their representatives, including the terms of the proposed settlement. The employees or their representative may then file a notice asserting that the proposed settlement fails to effectuate the purposes of the Act and providing reasons. If OSHA decides to go forward with the settlement despite the objections, it must provide a detailed response to the employees' or representative's points. Thereafter, the employees or representative, upon timely request, will be entitled to a hearing before the Occupational Safety and Health Review Commission on their objections. If the Commission agrees with the objectors, the proposed settlement cannot become a final order of the Commission ending the case There's more: even if an employer was prepared to accept the citations and penalties as issued by OSHA, employees or their representatives could contest them before the Review Commission as not being onerous enough.

Expansion of Retaliation Definition. Under current law, employees are protected from retaliation by an employer when filing a complaint with OSHA, instituting a proceeding under the OSH Act, or testifying at an OSHA proceeding. The new legislation would expand this legislative definition to include employees who simply report any injury, illness or unsafe condition to the employer, agent of the employer, safety and health committee, or even an employee safety and health committee representative. The bill also creates an entirely new administrative procedure for alleged retaliation that resembles other anti-discrimination laws enforced by OSHA. Employees have 180 days after the alleged discrimination occurs to complain to OSHA, instead of the current 30. Reinstatement is available to employees whom OSHA finds, based solely on its administrative investigation and despite any employer objections to the report, were unlawfully fired. Administrative hearings on a complaint may be brought either by the Secretary of Labor or, if OSHA takes too long, the aggrieved complainant. Remedies for violations include, among others, reinstatement, back pay, compensatory damages, and costs and expenses (including attorney's fees). Limited judicial review is available. Under current procedures, if, pursuant to an administrative investigation, OSHA concludes unlawful discrimination took place, absent settlement the Secretary must bring suit in district court to compel compliance. In most cases, only equitable relief has been accorded.

Duty to Provide Safety Equipment. The legislation requires employers to provide protective equipment, at no cost, to all employees. The bill further requires the Secretary of Labor to amend federal regulations specifying that protective equipment shall be provided at no cost to employees. (Note: OSHA recently settled a lawsuit over its failure to promulgate a rule requiring employer payment of personal protective equipment. The agency promised to issue a rule by November 2007. See OSHA Agrees to Issue Standard on Employer Payment for Personal Protective Equipment.)

Cover More Employees. The OSH Act definition for covered employees currently does not include federal, state or local public employees. The new bill would expand the definition of covered employees to include these workers and also additional private sector employees, including flight attendants.

The bill, as proposed, is likely to result in additional litigation at the price of occupational safety and health. Employers facing continuing challenges on OSHA issues, large penalties and damages may be induced to fight rather than settle. The prompt correction of alleged violations may be the ultimate victim. This could become a law of unintended consequences.