Washington D.C. Employment Law Update : Washington D.C. Employment Lawyer & Attorney : Littler Mendelson Law Firm : Virginia, Tyson's Corner

Jordan Barab, Deputy Assistant Secretary of Labor for OSHA, testified (pdf) that the Administration “strongly supports” PAWA’s whistleblower protections, which would strengthen the OSH Act’s anti-retaliation provision by “including the full range of procedures and remedies available under the more modern statutes and by codifying certain provisions, such as exemplary damages and the right to refuse work that could result in serious injury or illness, which have been available but not expressly authorized by current statute.” The amendments would also increase the existing 30-day deadline for filing a retaliation complaint to 180 days. Barab also praised PAWA’s adoption of the “contributing factor” test for determining when illegal retaliation has occurred. This test, Barab explained, is less stringent than the current “motivating factor” test OSHA uses to evaluate the employer’s decision to take adverse action against the employee following whistleblower activity. The new provisions would also allow both the DOL and the complainant to file a civil action for enforcement of an order providing relief for retaliation violations in federal court.

In addition to PAWA’s current provisions, Barab suggested further amending the OSH Act to provide for assessment of civil penalties against employers that violate the whistleblower provisions. Barab called for subjecting these employers to “civil penalties of not less than $10,000 and not more than $100,000 for each occurrence of a violation.”

Other witnesses, however, questioned (pdf) the need for these enhanced whistleblower provisions, which they believed do not directly relate to improving worker safety, but rather enhance a complainant’s position during the litigation process. In addition, the provision that would prohibit the discharge or any other form of discrimination against an employee “for refusing to perform the employee’s duties if the employee has a reasonable apprehension that performing such duties would result in serious injury to, or serious impairment of the health of, the employee, or other employees” is written too broadly, according to an employment attorney. Under PAWA, a complainant seeking protection under this provision must simply conclude, as a “reasonable person” would, that there is “bona fide danger of a serious injury, or serious impairment of health, resulting from the circumstances.” Under current OSH regulations already in place to protect against worker discrimination, an employee who refuses to work must demonstrate that he or she has refused to work in “good faith,” and that a reasonable person would agree that there exists “a real danger of death or serious injury.” In addition, employees must take certain steps to place the employer on notice of any workplace danger before refusing to work. According to the witness, “PAWA’s ‘reasonable apprehension’ standard and its failure to incorporate the employer protections contained in the OSHA regulations have the potential to encourage excessive litigation and false claims,” in addition to unnecessary work stoppages.

With respect to Section 306 of PAWA, which address victim’s rights, a witness testifying (pdf) on behalf of the U.S. Chamber of Commerce emphasized that “further clarification of the rights, duties and responsibilities of the entities covered under discussion draft Section 306, which purports to address Victim’s Rights, is necessary to truly advance the interests of safety and health in the workplace.” For instance, the witness claimed, a “representative of the victim” described in the legislation should be defined so as not to include a private attorney who is involved in third-party litigation related to the matter.

A complete list of witnesses and their testimony can be found here.

Meanwhile, Sen. Mike Enzi (R-WY) has introduced a bill – the Voluntary Protection Program Act (S. 3257) – that would effectively reauthorize OSHA’s Voluntary Protection Programs (VPP) initiative, and expand it to include more small businesses. As stated in an OSHA fact sheet (pdf) on the VPP, businesses partner with OSHA to “develop and implement systems to effectively identify, evaluate, prevent, and control occupational hazards to prevent employee injuries and illnesses.” During a recent web chat, OSHA officials noted that due to limited resources, the agency plans to shift its focus from VPP to enforcement efforts. To that end, less money was requested for VPP in OSHA’s 2011 proposed budget. To restore the necessary funding to carry out VPP, Sen. Enzi’s bill would provide the DOL with “such sums as may be necessary for fiscal year 2010 and each succeeding fiscal year.”

Photo credit:  Lkmorlan

With respect to the penalty provisions under PAWA, the minimum civil penalty for willful violations would increase from $5,000 to $8,000, and the maximum penalty would increase from $70,000 to $120,000. For serious violations, the maximum penalty would increase from $7,000 to $12,000. The legislation would also create a new penalty structure that would range from a minimum of $50,000 ($25,000 for small employers) to a maximum of $250,000 for a worker’s death caused by a repeat or willful violation. A death caused by a serious violation would result in a penalty ranging from $20,000 ($10,000 for small employers) to $50,000. In addition, PAWA would remove the requirement that a workplace death must occur before criminal penalties can attach, as well as providing for felony charges as a result of an employer’s repeated and willful violations which result in a worker’s death or serious injury. Criminal penalties would increase from a minimum of six months in prison to 10 years for a first offense and from a maximum of one year to a maximum of 20 years for repeat offenses. If a willful violation causes serious bodily injury but does not cause death, criminal penalties may include imprisonment for up to 5 years for a first offense, and 10 years for a repeat violation.

In her opening statement, (pdf) Rep. Woolsey claimed that “it is clear that without a change in the penalty structure of the statute, they will never be high enough to be an effective deterrent, especially for those employers who are repeat violators.” She further noted that:

PAWA also makes needed changes to the criminal penalties, including making top management liable for criminal misconduct. Under current law, only corporations and not corporate officials, can be criminally liable for willful violations, and this liability is limited only to cases where a worker has died. . . . PAWA changes that: employers – including top executives – can serve up to 10 years in jail for criminal behavior, which causes the death or serious injury of a worker.

David Michaels, Assistant Secretary of Labor for the Occupation Safety and Health Administration (OSHA), testified (pdf) that “serious violations of the OSH Act that result in death or serious bodily injury should be felonies like insider trading, tax crimes, customs violations and anti-trust violations.” He also emphasized that the Act would amend the OSH Act to change the burden of proof from “willfully” to “knowingly,” and lauded PAWA’s expansion of potential criminal liability to any responsible corporate officer or director, and coverage to include all public employees, among other provisions.

Not surprising, witnesses John Cruden, (pdf) Acting Assistant Attorney General of the Department of Justice’s Environment and Natural Resources Division, and Eric Frumin, (pdf) Health and Safety Coordinator for Change to Win, also endorsed PAWA’s tougher criminal and civil penalties.

In contrast, Jonathan Snare, an attorney speaking on behalf of the U.S. Chamber of Commerce, testified (pdf) that PAWA would have “unintended consequences and may not achieve” the intent behind the bill. Specifically, Snare claimed that PAWA’s revision of the OSH Act with enforcement-only sanctions “appears to be driven by the conduct of the few outlier employers who fail in their workplace safety and health obligations,” adding that the proposed increase in penalties “will do nothing to assist employers to understand their obligations for workplace safety and health, such as the small business owner who is trying to understand how to comply with applicable requirements.”

Snare also criticized PAWA’s requirement that an employer immediately abate hazards pending contests of citations, which he claims “will reduce or eliminate the ability of an employer to challenge a citation through the [Occupational Safety and Health Review Commission] administrative process by requiring immediate abatement.” Such a requirement, he testified, would be akin to “asking a criminal or civil defendant to pay a fine or serve a sentence before the trial is held.”

Criticism was also directed at PAWA’s expanded whistleblower requirements and modification to the level of intent necessary for the imposition of criminal penalties from the current “willful” to “knowing.” Such a change, Snare testified, would “upend decades of OSHA law.” Snare suggested increasing OSHA’s compliance assistance, outreach, and training would better serve to prevent workplace injuries than after-the-fact penalties. 

Photo credit: Matt Collingwood

In essence, PAWA would amend several provisions of the OSH Act as it relates to government and private employers. Notably, PAWA would increase the civil penalties under the OSH Act. For example, the minimum civil penalty for willful violations would increase from $5,000 to $8,000, and the maximum penalty would increase from $70,000 to $120,000. For serious violations, the maximum penalty is increased from $7,000 to $12,000. The legislation would also create a new penalty structure that would range from a minimum of $50,000 ($25,000 for small employers) to a maximum of $250,000 for a worker’s death caused by a willful violation. A death caused by a serious violation would result in a penalty ranging from $20,000 ($10,000 for small employers) to $50,000. In addition, PAWA would remove the requirement that a workplace death must occur before criminal penalties can attach, as well as providing for felony charges as a result of an employer’s repeated and willful violations which result in a worker’s death or serious injury. Criminal penalties would increase from a minimum of six months in prison to 10 years for a first offense and from a maximum of one year to a maximum of 20 years for repeat offenses. If a willful violation causes serious bodily injury but does not cause death, criminal penalties may include imprisonment for up to 5 years for a first offense, and 10 years for a repeat violation.

In addition, according to a press release issued by co-sponsor and Chairman of the House Committee on Education and Labor George Miller (D-Calif), PAWA would also accomplish the following:

• Expand OSH coverage to airline and railroad employees, as well as Department of Energy contractors
• Require OSHA to investigate all cases of death and serious injuries (i.e. incidents that result in the hospitalization of 2 or more employees)
• Improve whistleblower protections
• Create regulations that give workers the right to refuse to do hazardous work
• Clarify that employees cannot be discriminated against for reporting injuries, illnesses or unsafe conditions, and bring the procedures for investigating and adjudicating discrimination complaints into line with other safety and health and whistleblower laws
• Provide workers and employee representatives the right to contest OSHA’s failure to issue citations, classification of its citations, and proposed penalties.
• Give injured workers, their families and families of workers who died in work-related incidents the right to meet with investigators, receive copies of citations, and to have an opportunity to make a statement before any settlement negotiations
• Clarify that the time spent by an employee accompanying an OSHA inspector during an investigation is considered time worked, for which a worker must be compensated
• Prohibit OSHA from designating a citation as an “unclassified citation” where an employer can avoid the potential consequences of a “willful” violation, the most serious violation
• Allow any worker or their representative to object to a modification or withdrawal of a citation, and entitle them to a hearing before the Occupational Safety and Health Review Commission

PAWA has been referred to the House Committee on Education and Labor. Many employers are already facing increased scrutiny under the new Administration, and passage of the PAWA could have a significant effect on their operations. Our governmental affairs team will continue to keep you updated.