Wednesday, July 29, 2020

Private Right of Action for OSHA

Michael Duff, , , and An excerpt from the executive summary:

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. . . .

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. . . .

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. . . .

Check it out!

Jeff Hirsch

https://lawprofessors.typepad.com/laborprof_blog/2020/07/private-right-of-action-for-osha.html

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