The OSHA Mission — Found and Lost
A Public Reminder
A Report from the Center for Study of Responsive Law
THE OSHA REFORM PROVISIONS1
29 USC 654 Is modified to read2:
Section Title: Duties
29 USC 654
(a) Each employer –
(1) shall furnish to each of his employees or others acting under his supervision employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;
(2) shall comply with occupational safety and health standards promulgated under this Act.
(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct.
Comments: Purpose is to thwart attempts by employers to classify those working for them as “independent contractors,” rather than “employees” to whom they owe a duty under the OSH Act.
29 USC 655 (b)(2) is modified to read:
(2)(A) The Secretary shall publish a proposed rule promulgating, modifying, or revoking an occupational safety or health standard in the Federal Register and shall afford interested persons a period of thirty days after publication to submit written data or comments. Where an advisory committee is appointed and the Secretary determines that a rule should or should not be issued, he shall publish the proposed rule within sixty days after the submission of the advisory committee’s recommendations or the expiration of the period prescribed by the Secretary for such submission.
(B) If the Secretary receives a recommendation for a standard from an advisory committee, the Secretary of Health and Human Services, or the Administrator of the Environmental Protection Agency, or a petition from an interested person stating with reasonable particularity the facts which the person claims warrant the promulgation, modification or revocation of such a standard, then the Secretary shall, within 90 days after receipt of such recommendation or petition, publish in the Federal Register a response, stating what action the Secretary intends to take in response to the recommendation.
Comments: One of the gravest problems facing the OSH Act is the slow promulgation of needed safety standards. The goal of the amended provisions is to set a precise time table within a finite period during which the Secretary must take a definite position, and thus allow interested parties the opportunity to advance their contentions for or against a proposed standard, which in turn would speed up the process of standard promulgation.
29 USC 655 is amended by adding at the end:
(h) Any person who may be adversely affected by a determination by the Secretary under this section (b)(2) not to propose a rule promulgating, modifying, or revoking a standard may, within sixty days after such determination is published in the Federal Register, file a petition seeking review of such determination with the United States Court of Appeals for the Circuit in which such person resides or has a principal place of business. The Secretary. s determination shall be set aside if found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.
Comments: The goal is to allow interested parties some recourse and a measure of relief from possible abuses of discretion and/or capriciousness or other actions by the administrators of OSHA which might go against the purpose of the OSH Act in protecting workers. safety
29 USC 657(c)(2) is modified to read:
(2) The Secretary, in cooperation with the Secretary of Health, Education and Welfare, shall prescribe regulations requiring employers to maintain accurate records of, and to make periodic reports on, work-related deaths, injuries and illnesses, and all incidents in which an emergency medical response team is sent to the workplace, other than minor injuries requiring only first aid treatment and which do not involve medical treatment, loss of consciousness, restriction of work or motion, or transfer to another job.
Comments: The goal is to allow OSHA the opportunity to proactively monitor workplaces for possible indicia of future harm and take action before actual harm befalls the workers.
29 USC 660(c) is modified to read:
(c)(1) No employer shall discharge or in any manner discriminate against any employee or other person under his supervision because such employee or person under the employer. s supervision has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee or person under the employer. s supervision on behalf of himself or others of any right afforded by this Act.
(2) Any person who believes that he has been discharged or otherwise discriminated against by any person in violation of this subsection may, within one hundred and eighty days after such violation occurs, file a complaint with the Secretary alleging such discrimination. Upon receipt of such complaint, the Secretary shall cause such investigation to be made as he deems appropriate. In any such action the United States district courts shall have jurisdiction, for cause shown to restrain violations of paragraph (1) of this subsection and order all appropriate relief including rehiring or reinstatement of the employee to his former position with triple back pay. Within 90 days of the filing of a complaint, the Secretary shall:
(A) elect to file suit on behalf of the complainant to enforce the provisions of 29 USC 660(c)(1), or (B) notify the complainant that the Secretary will not file suit on behalf of the complainant, and that the complainant may bring a private action in US district court to enforce rights protected by 29 USC 660(c)(1) as alleged in the complaint. The complainant shall have 90 days from the issuance of such notification to file a complaint in the appropriate US district court.
(C) If the Secretary fails to file suit or issue a notification under (2)(B), the complainant may bring a private action to enforce rights protected by 29 USC 660(c)(1). Such action must be brought within 360 days of the alleged violation.
(D) No private action to enforce rights under 29 USC 660(c)(1) may be brought unless a complaint has been timely filed with the Secretary and the provisions of this subsection have been complied with. (3)(A) A violation of paragraph (1) or (2) may be determined to have occurred only if the complainant demonstrates that the exercise of a right protected by such paragraph was a contributing factor in the discharge or discrimination alleged in the complaint.
(B) Relief may not be ordered if the employer named in the complaint demonstrates by clear and convincing evidence that the employer would have taken the same unfavorable action against the complainant in the absence of the complainant. s exercise of such protected rights.
(4) Any person who brings a fraudulent claim under the provisions of (c)(2) of this section shall be subject to the penalties of 29 USC 666(g).
(d) This Act shall not preempt stricter state workplace safety laws.
Comments: 1. The goal of the “or other person under his supervision” language in 660(c)(1) is to bring under the protection of the whistle blower provision employees whom employers might attempt to exclude from the protections of the OSH Act by the mere act of labeling them “independent contractors.”
2. The goal of the triple back pay language in 660(c)(2) is to act as a punitive deterrent to intentional employer discrimination against whistle blowers exercising the rights granted them under the OSH Act.
3. The driving force behind 660(c)(2) (A), (B), (C) and (D) is that employees who have been discriminated against for acting as whistle blowers deserve to be given the opportunity to assert their rights if the Secretary lacks the resources to litigate on those employees. behalf. No employee who has been discriminated against ought be left without a remedy or recourse merely because the administrators of the OSH Act lack the resources to challenge employer retaliation against whistle blowers.
4. The goal of 660(c)(4) is to penalize fraudulent claims by disgruntled employees whose sole purpose is to harass former employers, rather than seek to remedy genuine grievances.
5. The goal of 660(d) is to allow the states to afford their workforce additional protections should they so choose.
29 USC 666(e) is modified to read:
(e)(i) Any employer or any officer, management official, or supervisor having direction, management, control, or custody of any place of employment who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused death to any employee or person subject to the employer. s supervision, shall, upon conviction, be punished by a fine of not more than $100,000 or by imprisonment for not more than ten years, or by both; except that if the conviction is for a violation committed after a first conviction of such person, punishment shall be by a fine of not more than $200,000 or by imprisonment for not more than twenty years, or by both.
(ii) Any employer and any officer, management official, or supervisor having direction, management, control, or custody of any place of employment who willfully violates any standard, rule, or order promulgated pursuant to section 6 of this Act, or of any regulations prescribed pursuant to this Act, and that violation caused serious bodily injury resulting in an employee or person under the employer. s supervision being maimed, disabled, or
rendered chronically ill, shall, upon conviction, be punished by a fine of not more than $50,000 or by imprisonment for not more than five years, or by both
Comments: 1. The goal of the inclusion of “any officer, management official, or supervisor having direction, management, control or custody of any place of employment” in 666(e) within the purview of those punishable for harm befalling employees attempts to address teh difficulty in criminally sanctioning corporations, especially through imprisonment.
2. The goal of increasing the penalty for willful violations leading to death in 666(e)(i) is to act as a stronger deterrent to the knowing and deliberate violation of the OSH Act by some employers, particularly when such deliberate violation results in the very harm which the OSH Act seeks to avert.
3. The goal of 666(e)(ii) is analogous to that in comment 2, above. The current OSH Act contains no criminal punishment for deliberate violations leading to serious bodily injury
29 USC 666(g) is modified to read:
(g) Whoever knowingly, or recklessly makes any false statement, representation, or certification in any application, record, report, plan, or other document filed or required to be maintained pursuant to this Act shall, upon conviction, be punished by a fine of not more than $60,000, or by imprisonment for not more than six years, or by both.
Endnotes:1. Modeled and based generally on proposed H.R. 3160, H.R. Rep. 102-663, pt. 1, at 6-38 (1992).
2. The modifications are in underlined italics