April 30, 2009
The Occupational Safety and Health (“OSH”) Act has largely remained unchanged since its enactment in 1970, but on April 23, Representative Lynn Woolsey (D-CA), Chair of the Subcommittee on Workforce Protections, introduced a bill that would make sweeping changes to the occupational safety and health enforcement landscape. While the Protecting America’s Workers (“PAW”) Act, H.R. 2067, is only in the preliminary legislative stages, we anticipate that some form of the bill will pass in the current Administration. President Obama was a co-sponsor of the 2007 PAW legislation, and has repeatedly stated he supports such a bill.
If enacted, the PAW Act would sharply increase criminal penalties for businesses and managers, including in cases of recordkeeping errors; vastly expand OSHA’s authority to shut down workplace operations that it considers unsafe until the company can prevail in litigation; and give employees a full seat at the table during both litigation and settlement. Specifically, the legislation contains the following significant changes:
- Requires employers to implement corrective “abatement” measures immediately after receiving a citation, as opposed to the current system in which an employer’s good-faith contest of a citation defers any abatement obligation until OSHA prevails in a final adjudication. The only exception is for Other-Than-Serious citations. § 308.
- Sharply increases criminal penalties for OSH Act violations, and makes corporate officers subject to prosecution as follows (§ 311):
- Willful violation of an OSHA regulation resulting in death or serious bodily injury: up to $250,000 for an individual and $500,000 for a corporation. Imprisonment of up to 10 years for a first offense (compared with a current maximum of 6 months) in the event of death, and up to 5 years for a first offense in the event of serious bodily injury (which is not currently a criminal offense).
- Knowingly making a false statement or report to OSHA: up to $250,000 for an individual and $500,000 for a corporation. Imprisonment of up to 2 years (compared with a current maximum of 6 months).
- These longer sentences mean the violations are no longer misdemeanors but felonies, increasing the likelihood that the Department of Justice will prosecute cases referred by OSHA.
- Adds or increases civil penalties as follows for employers with more than 25 employees (§ 310):
- Repeat and Willful citations: $8,000 minimum penalty, $120,000 maximum. If the cited condition results in death, $50,000 minimum, $250,000 maximum.
- Serious, Other-Than-Serious, and Failure-To-Abate citations: $12,000 maximum penalty. If the cited condition results in death, $20,000 to $50,000.
- In addition, all civil penalties will be indexed to the Consumer Price Index to account for inflation.
- Expands “whistleblower” protections: An employee with a “reasonable apprehension” that performance of his duties would result in a serious injury or health impairment would be entitled to refuse to work (though, if practical, the employee would be required to first attempt to have the employer correct the condition). § 202.
- Enables employees to challenge OSHA citations and demand higher penalties and more severe classifications than those proposed, regardless of whether the employer contests the citation. § 307. (Currently, employees only have the right to challenge the proposed deadline for abatement.) The Act also enables employees to challenge employers’ settlement agreements with OSHA. § 309. In effect, all litigation and settlement negotiations will involve three parties: employer, employees, and OSHA.
- Requires employers to compensate employees for time “participating in or aiding any such inspection.” § 303. Employees could use this vague mandate to attempt to obtain payment for time spent with OSHA inspectors on days off, or time spent preparing complaints.
- Eliminates “Unclassified” citations, which OSHA has used to impose penalties higher than the $7,000 maximum for a Serious violation without classifying the citation as Repeat or Willful. § 305.
- Displaces other federal agencies’ regulation of workplace safety, unless a federal agency receives “certification” of its safety plan from OSHA. This could have a significant effect on private companies whose safety and health practices currently are regulated by the Department of Defense, the Federal Aviation Administration, Federal Railroad Administration, or other agencies. In addition, any person adversely affected–including an employee–could bring a challenge in a Court of Appeals if OSHA decides to cede safety and health jurisdiction to another agency. § 102.
PAW would be the most important change in OSHA law in 40 years, and would significantly increase the power of OSHA—and employees—in occupational safety and health matters. The bill warrants close attention from American employers as it moves forward in the House and Senate.
Gibson Dunn partner Jason Schwartz testified today, April 30, before the U.S. House of Representatives Workforce Protections Subcommittee regarding OSHA’s Enhanced Enforcement Program and other OSHA enforcement priorities. The text of his prepared statement is available here: http://edlabor.house.gov/documents/111/pdf/testimony/20090430JasonSchwartzTestimony.pdf.
Gibson Dunn & Crutcher lawyers have significant experience counseling employers to ensure compliance with OSHA requirements, representing employers in OSHA investigations, and representing companies’ interests during the OSHA rulemaking process. If you would like to discuss these or other labor and employment law issues, please contact the Gibson Dunn lawyer with whom you work or any of the following lawyers in the firm’s
Labor and Employment Practice Group:
Baruch A. Fellner – Washington, D.C. (202-955-8591, [email protected])
Eugene Scalia – Practice Co-Chair, Washington, D.C. (202-955-8206, [email protected])
Jason C. Schwartz – Washington, D.C. (202-955-8242, [email protected])
Pamela Hemminger – Los Angeles (213-229-7274, [email protected])
Michael D. Billok – Washington, D.C. (202-887-3500, [email protected])
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