This is the second part of a series of follow-up blog posts relating to CDT’s July 2021 report, Warning: Bossware May Be Hazardous to Your Health. The report noted that one weakness of the Occupational Safety and Health Act (OSH Act), as compared with the Americans with Disabilities Act (ADA), is that the OSH Act includes only limited enforcement mechanisms.
This blog post expands on that point by discussing how the absence of a private right of action, reliance on modest fines, and limited protection for whistleblowers weaken employers’ incentives to comply with Occupational Safety and Health Administration (OSHA) standards, and limit the effectiveness of the OSH Act in preventing the health and safety threats that bossware poses to workers.
In CDT’s recent report on worker surveillance technology (“bossware”), we discuss some of the ways that the Occupational Safety and Health Administration (OSHA) could revise its regulations and enforcement standards to plug gaps that prevent it from addressing the health and safety threats posed by bossware. Specifically, we recommend that OSHA issue standards covering workers’ psychiatric health and repetitive motion injuries, backed by new congressional authorization to the extent necessary.
Unfortunately, as the report also suggests, even if OSHA plugs those substantive gaps, the limited enforcement mechanisms written into the Occupational Safety and Health Act (OSH Act) are a major impediment to preventing or mitigating bossware’s potential harms. Those enforcement mechanisms are so weak, in fact, that the OSH Act as currently constructed may prove inadequate to address the health and safety risks of bossware — even if OSHA issues the new standards that the report recommends.
Absence of a private right of action
The first and most fundamental weakness in the OSH Act’s enforcement regime is that it does not provide a private right of action (PRA) — the ability for a private individual to sue under the law. OSHA itself is the only entity or party empowered to investigate or enforce potential violations of the OSH Act or OSHA’s standards. This means that a single federal agency is solely responsible, to quote the OSH Act’s stated purpose, for “assur[ing] so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources.” This task would be monumental for even a well-funded agency led by experienced civil servants. From its inception, however, OSHA has suffered from underfunding, understaffing, and a revolving door of leaders, limiting the agency’s will and ability to take on complex investigations and enforcement actions.
The absence of a PRA, combined with OSHA’s chronic underfunding and understaffing, places workers at a severe disadvantage when it comes to the dangers that bossware generates. Employer surveillance is often invisible, and employers are under no obligation to notify either workers or OSHA when they deploy new workplace technologies. As a result, employers start with a huge information advantage when it comes to the risks (and the very existence) of the new technologies they deploy. A PRA would mitigate that information asymmetry by giving workers who experience health and safety threats access to the discovery process in civil litigation.
Additionally, creating a PRA would open an avenue for workers to file class-action complaints against companies, which would amplify the deterrent effect of OSH Act enforcement actions. Instead, the vesting of investigative and enforcement authority in OSHA alone means that workers must rely on the resources of a perpetually underfunded agency — one whose investigative activity has actually fallen in recent years — to vindicate their rights when their health and safety are threatened.
Reliance on modest fines
Other deficiencies in the OSH Act’s enforcement regime exacerbate the weaknesses generated by the absence of a PRA. OSHA has only limited authority to pursue injunctive relief, which would put a stop to certain employer behaviors, and instead relies on civil penalties to the OSH Act and its standards.
But those penalties are woefully inadequate to protect workers’ health and safety: some companies treat OSHA fines as a cost of doing business, and are not deterred even by repeated OSHA enforcement actions. In one particularly egregious case, Hagel Metal Fabrication received “23 citations including willful and serious citations for exposing workers to amputation injuries and machine guarding hazards” over a period of 24 years before an incident where a worker was fatally crushed by an automated laser-cutting machine.
Limited protection for whistleblowers
In all of federal labor and employment law, the OSH Act has perhaps the weakest whistleblower protections. Workers are theoretically protected from retaliation for filing OSHA complaints or raising workplace health and safety concerns with company management. But, as with violations of the OSH Act and substantive OSHA standards, OSHA alone is empowered to investigate and enforce retaliation claims under the OSH Act — and OSHA’s enforcement of whistleblower protections leaves much to be desired. To illustrate, an August 2020 analysis of OSHA’s public data by the National Employment Law Project showed that over half of COVID-related retaliation complaints filed since the beginning of the pandemic had been closed without investigation.
These weaknesses in OSHA’s enforcement regime reinforce each other, resulting in a system that seems almost designed to fall short when confronting the risks associated with bossware. When employers use bossware systems, they have a huge information advantage regarding the effect such systems have on illness and injury rates among workers. The only mechanism that the OSH Act provides for reducing that information asymmetry lies in the hands of a stretched-paper-thin enforcement agency. Shaky protection for whistleblowers makes it less likely that workers will even bother to report suspected threats to OSHA at all, particularly when even the complaints that OSHA does investigate and issue a citation in only result in modest fines as a consequence.
Strengthening OSHA standards and updating its enforcement guidelines, as CDT’s report suggests, is necessary but not sufficient. To fully address the threat that employers’ use of bossware poses to workers’ health and safety, the accommodation requirements and the much stronger enforcement framework of the Americans with Disabilities Act (ADA) holds more immediate promise in terms of forcing employers to address these new threats to workers’ well-being.
Ideally, however, the shortcomings of the OSH Act’s enforcement mechanisms will spur Congress to revise the statute by creating a private right of action, providing stronger protection to whistleblowers, granting OSHA greater resources, and giving OSHA and courts greater authority to force employers to cease practices that threaten workers’ health and safety. As new waves of workplace technologies threaten workers’ health and safety, those actions will give America’s workers more robust protections.