Congress Eyes Measure for Employee Protection

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A measure pending in Congress that would increase federal penalties for workplace safety violations is a step in the right direction, says an Oklahoma City labor law attorney.

"I do think it's important to provide additional employee protections, particularly for refusing to do hazardous jobs," Mark Hammons said of the Protecting America's Workers Act of 2009. A new version of the measure was reintroduced in April.

The measure would allow workers to have input in Occupational Safety and Health Administration investigations and index some penalties to inflation, among other changes.

Hammons said that if an employer asks a worker to do something that is inappropriate or unsafe, the employee should be protected in such a situation.

"The remedies section on the bill is really pretty limited," he said. "You have to file an administrative complaint. You don't really get a jury trial."

He said a problem with administrative proceedings is that "they are not always worked as hard as they should be."

Hammons, with Hammons Gowens & Associates, said administrative agencies may not do a bad job on the whole, but they receive a lot of complaints.

"With an attorney involved, you've got someone looking a little bit more closely at the complaint," he said. "I worry a little bit about administrative enforcement not being probably as thorough, in terms of reviewing and developing what happens, as it would be if there was a private enforcement provision on it."

Hammons said the bill appears to be limited to compensatory damages, which would probably amount to wage loss in a workplace case.

"Because it's a new act, it's not clear, and there's not a committee report. I don't know whether that would include things like emotional distress," he said. "It does not appear to have any kind of a private penalties provision in it, like liquidated damages or punitive damages."

The measure would increase civil penalties for some violations, raising them from $7,000 to $12,000, and boost penalties for violations that result in death up to a potential $250,000. Civil penalties also would be indexed to inflation.

Criminal penalties could include a prison term of up to 10 years for a violation that causes the death of an employee, up to 20 years for a subsequent violation.

"On the whole, I think it's good," Hammons said of the bill. "But it is kind of a halfway measure. It looks like it's a compromise designed to provide remedies and additional protections for employees, but probably not the full range of remedies or full range of protections we see in a lot of private acts, like Title 7 or age discrimination or disability discrimination."

A study by the AFL-CIO determined that the average penalty for a violation deemed serious by OSHA was $970 last year. For a violation resulting in a worker's death, the average penalty was found to be $11,311.

"It's not much of a disincentive to correct an unsafe practice," Hammons said. …