Unlike federal environmental laws, many of which have so-called “citizen suit” provisions, the Occupational Safety and Health Act—the nation’s primary law protecting workers—does not allow workers to sue their employers in court for failing to comply with health and safety standards. That deficiency in the law is especially problematic because, with approximately 9 million worksites in the United States and new health and safety challenges arising constantly, OHS agencies simply do not employ enough inspectors to keep a close watch on employers’ compliance. OHS agencies’ resource constraints are the root of the problem, but for reasons of politics, the federal government and the states seem unlikely to increase these agencies’ budgets.
So what is a worker to do when her employer fails to comply with the basic rules set out by state or federal OHS standards? To take preventive action before she or a coworker is injured, the best available option is to file a complaint with an OHS agency, which will trigger an inspection if the complaint alleges a violation of an OHS standard with sufficient specificity. But even here, agency resources constrain responses. It is rare that an inspection instigated by a complaint will result in a “wall to wall” approach of the sort that would identify hazards that are not immediately visible.
What’s the Solution?
In any state that oversees its own health and safety program under a plan approved by federal OSHA (a state-plan state), the legislature could update the state law to add a “citizen suit” provision to the state OHS plan. This would empower workers by giving them the right to file lawsuits demanding compliance with OHS laws, similar to the right to file citizen suits on violations of environmental laws.
To exercise the right, the person intending to file the lawsuit would first have to provide the employer and the state OHS agency a “notice of intent to sue” identifying the alleged violations. Upon receipt, the agency should treat such a notice as a formal complaint. The notice gives the employer an opportunity to correct the problem or—if it fails to do so—gives the state-plan OHS agency the opportunity to open an investigation and issue citations. Other key elements of an effective citizen suit law would:
Clarify that a person who files a notice of intent to sue is presumptively included in the inspection as a worker representative and allowed to participate in settlement negotiations and intervene in litigation if the employer contests any citation or abatement order;
Specify that employees, independent contractors, temporary workers, and other third-party representatives with close ties to workers have standing to sue; and
Award reasonable attorney’s fees to individuals or organizations that initiate successful citizen suits or citizen suit-based inspections.
The Lack of Inspectors. For more information on the number of inspectors federal OSHA and each state-plan state employs, read AFL-CIO’s 2018 report, Death on the Job: The Toll of Neglect. With a combined inspection workforce that is rivalled in number by some suburban high schools’ student population, it is no wonder that major workplace disasters are often followed by media reports that the employer had rarely, if ever, seen an OHS inspector.
Citizen Suit Provisions in Federal Environmental Laws. The Clean Air Act (CAA) and Clean Water Act (CWA) provide the best examples of how a citizen suit provision can strengthen a public health statute.
Connecting to Other Policy Reforms. For workers, the biggest challenge with citizen suits will be dealing with retaliation. Unfortunately, the anti-retaliation provisions in many state and federal whistleblower laws rarely give workers sufficient protection. For this reason, campaigning for a strong whistleblower protection law would be an essential companion to a citizen suit law to enforce OHS standards. Advocates can read more about improving whistleblower laws on our whistleblower protection page.