At present, only OSHA and state-plan agencies can pursue legal action under the Occupational Safety and Health Act by imposing citations and civil penalties against employers found to be in violation. But that could change soon.
Congress may make it possible for workers to file suit against their employers for OSHA safety violations, if union-backed workers’ rights advocates get their way.
OSHA relies on workers to inform the agency about unsafe working conditions and offers legal protection for those who do so. However, employees are not allowed what is termed a private right of action – filing a personal lawsuit, note attorneys Courtney Malveaux and Catherine Cano of the Jackson Lewis law firm.
“A private right of action under the OSH Act could have a significant impact on the balance of power between employers and employees and, potentially, independent contractors,” they say.
“Private litigation potentially could be available without the benefit of OSHA having conducted an inspection or even after OSHA investigated and determined there was no violation.”
One current proposal would give OSHA five days to conduct an inspection. The complaining party would have 90 days after OSHA’s failure to issue a citation to sue. The statute of limitations for suing would grow from six months to five years.
With other extensive labor law changes being contemplated by the Democrat-controlled Congress (AA, 3-1-21, P. 1) there is a good chance that this kind of reform could enter the legislative mix.
“The proposed incentives for workers and their attorneys only increase the risk of unfounded claims,” Malveaux and Cano assert.
“The threat of paying attorney’s fees (both to defend themselves and if a plaintiff succeeds) puts pressure on businesses to settle, regardless of the merits of a claim.”