Third Circuit: No OSHA Investigation? No OSHA Litigation

Posted on: February 13, 2023
In: Labor & Employment

By: Lewis Brisbois' Labor & Employment Team

Upon the conclusion of OSHA’s standard enforcement procedures and absent a finding of an imminent threat in the workplace, an employee’s private action for allegedly unsafe conditions cannot stand.

In a matter of first impression, the Court of Appeals for the Third Circuit recently confirmed that the Occupational Safety and Health Act of 1970 (OSH Act) mandates the dismissal of an employee’s action against the Secretary of Labor once the Department of Labor has completed its standard enforcement proceedings. Doe v. Scalia (3d Cir. Jan. 31, 2021, No. 21-2057) 2023 U.S. App. LEXIS 2421, at *1. The court explored the contours of Section 13(d) of the OSH Act, 29 U.S.C § 662(d), which affords employees a private right of action against the Secretary of Labor to seek relief from “imminent danger(s)” in the workplace when the Secretary arbitrarily or capriciously fails to seek injunctive relief for those dangers. 29 U.S.C § 662(d).

As reference, under standard enforcement procedure, OSHA stands in the place of private litigants to assure workplace safety, and safety grievances are channeled through OSHA’s administrative process. First, employees who suspect a violation of safety standards may request an inspection of their workplace. Thereafter, OSHA conducts its investigation and renders the final determination whether to issue employers citations, which may be subsequently contested by employers or employees. 

The issue in Scalia arises from an expedited procedure afforded under section 662 of the Act. Under this section, when an employee believes there is an imminent danger, and a preliminary OSHA inspection reveals such an immediate threat upon inspection, OSHA will recommend that the Secretary of Labor file an action in district court to remedy the “imminent danger[s]” via injunction or temporary restraining order. However, if an OSHA inspector finds an imminent danger upon inspection, and the Secretary “arbitrarily or capriciously fail[s]” to act, section 662(d) grants employees a limited right of action to compel the Secretary through writ of mandamus to seek such an order. Section 662(b) provides district courts with “jurisdiction to grant such injunctive relief or temporary restraining order pending the outcome of an enforcement proceeding pursuant to this chapter.” 

In Scalia, the plaintiffs were employees at a Pennsylvania meatpacking plant who sought relief under section 662(d) to remedy allegedly inadequate COVID-19 protocols at the plant. However, OSHA conducted an inspection at the plant and found that the workplace conditions did not constitute an imminent danger. OSHA therefore did not recommend that the Secretary take immediate action to obtain expedited relief pursuant to section 662. Nevertheless, OSHA’s standard enforcement proceedings continued.

While standard enforcement proceedings remained pending, the plaintiffs filed a complaint and emergency petition for emergency mandamus relief in the U.S. District Court for the Middle District of Pennsylvania under section 662(d), claiming that OSHA failed to take action to remedy insufficient COVID-19 measures. OSHA moved to dismiss the complaint on the basis that employee-initiated relief is only proper when the Secretary “arbitrarily and capriciously” fails to take legal action. While the motion to dismiss remained pending, OSHA completed its standard enforcement proceedings without issuing a citation. The agency then filed a “Suggestion of Mootness” in light of OSHA’s investigation findings. Over the plaintiff’s opposition, the court dismissed the complaint on March 30, 2021. The district court held that although the case was not moot, section 662(d) only grants employees relief when the Secretary fails to act on a finding of imminent danger by an OSHA inspector. Here, because the OSHA inspector did not present the Secretary with a finding of imminent danger, there was no related Secretary decision to review.

On appeal, the Court of Appeals for the Third Circuit affirmed the dismissal. Relying on traditional tenets of statutory construction, it clarified that per section 662(b), employee-driven relief under section 662(d) is available only during the pendency of OSHA’s standard enforcement proceedings. In other words, if OSHA’s more lengthy standard enforcement proceedings do not uncover a safety issue, then there was certainly no imminent danger to remedy through expedited measures. Further, the court explained that an “arbitrary” or “capricious” decision by the Secretary not to act on a finding of imminent danger by an OSHA inspector was indeed a condition precedent to maintain such an action. Absent any such finding, there was no related decision of the Secretary for the court to examine. 

While this opinion does not impose any new obligations on employers, it bears note that the statutory framework indeed provides employees a mechanism to pursue litigation to expediate OSHA’s standard enforcement procedures. The opinion also provides clarity on the extent to which a court may render an opinion in such a case. 

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