Reforming Occupational Enforcement

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Scholar proposes a method of enforcing American worker-protection laws and curbing employer retaliation.

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More than 22 percent of American workers say they would not report unsafe working conditions due to fears of employer retaliation. Yet, workplace regulation in the United States heavily relies on complaints that employees file.

How can a system that relies on employee complaints protect workers amid fears of workplace retaliation? One scholar claims it cannot.

In a recent article, Daiquiri Steele from the University of Alabama School of Law argues that increasing employer retaliation and recent court decisions have made it difficult for federal agencies to promote workplaces where employees feel comfortable voicing concerns. Steele proposes a new system for enforcing worker-protection statutes that emphasizes regular, proactive compliance checks rather than ad-hoc enforcement in response to employee complaints.

Agency enforcement actions against employers fall into two categories.

An agency may initiate a complaint internally without a formal complaint from an employee through “compliance audits.” The Occupational Safety and Health Administration (OSHA), for example, initiates close to 44 percent of its investigations internally.

An agency may also initiate an investigation in response to a complaint from an outside source through “individual complaint actions,” and most worker-protection statutes are enforced through such actions. The Equal Employment Opportunity Commission (EEOC), for example, internally initiated only 54 of their 73,000 investigations last year.

An agency’s mission typically dictates the balance between compliance audits or individual complaint actions, according to Steele. She claims that although some agencies that enforce workplace regulations, such as EEOC, have a more balanced approach to enforcement, occupational agencies, such as OSHA, mostly enforce their regulations by responding to individual complaints.

Steele argues that the individual complaint system insufficiently protects workers because it leaves employees vulnerable to retaliation, does not prevent future non-compliance, and is costly.

Employee fear of employer retaliation reduces the number of potentially meritorious complaints to federal agencies, which leads to the underenforcement of occupational safety and anti-discrimination laws, according to Steele. Indeed, the EEOC receives more complaints of employer retaliation than any other type of workplace discrimination.

Steele acknowledges that there are provisions in nearly every occupational safety and anti-discrimination statute designed to prevent employer retaliation, but she claims that courts have limited the ability for agencies and individuals to make retaliation claims.

For example, in University of Texas Southwestern Medical Center v. Nassar, the U.S. Supreme Court ruled that an employee has the burden of proving that an employer would not have taken an adverse action against them but for the existence of retaliatory motives. Lower courts have since ruled that retaliatory behavior such as negative performance appraisals, altering work schedules, and threatening to fire an employee do not constitute an adverse action against an employee.

Steele also argues that individual complaint actions are less effective at ensuring future compliance than compliance audits. She observes that businesses investigated under EEOC compliance audits were 70 percent more likely to comply in the future than businesses investigated after an individual complaint.

Furthermore, pursuing individual enforcement is costly, according to Steele. She claims that instead of efficiently targeting investigations toward the most problematic industries and companies, the existing enforcement regime forces agencies to spend time and resources sorting through thousands of complaints to discern which have merit.

Concluding that the existing regime is insufficient to protect worker’s rights in light of growing employer retaliation, Steele argues that agencies should not wait for congressional action to improve worker protections. Steele concedes that although congressional action could create a more uniform system of worker protection, the U.S. Congress has shown little appetite for reform.

Steele proposes that rather than relying on individual complaints for the majority of their enforcement actions, agencies could adopt a more proactive approach to enforcement.

Under Steele’s proposal, agencies would first increase mandatory employer reporting of compliance activities and conduct studies on employer non-compliance. Steele proposes that agencies should require companies to report any prior history of non-compliance and existing procedures to prevent non-compliance. She also suggests that agencies use these reports to assess whether marginalized groups are especially affected by current employer non-compliance.

These studies and compliance reports would allow agencies to analyze critically their existing enforcement activities and identify industries and employers to concentrate future compliance audits, Steele argues.

After federal agencies develop a better understanding of the scope of employer non-compliance, agencies would shift their enforcement focus away from actions in response to individual employee complaints and instead emphasize proactive compliance reviews, Steele suggests. Because proactive compliance audits do not rely on employee complaints, these audits would mitigate the problems that employer retaliation pose, Steele claims.

Steele argues that her proposed system would not cost any more than the existing system because it would provide for targeted enforcement rather than spending agency resources on sorting through meritless claims.

Steele offers the U.S. Department of Labor’s Office of Federal Contract Compliance as an example of a worker-focused agency that already emphasizes compliance audits over individual complaint investigation. She contends that other agencies, such as the EEOC and OSHA, have the existing authority to adopt an audit-centric approach to enforcement because their authorizing statutes permit them to initiate investigations internally.

Steele maintains that strategic investigation and enforcement of individual complaints would remain a critical part of her new model of occupational regulation, but agencies could better improve employer compliance and reduce employer retaliation if they shift their focus to compliance audits.

Absent a significant shift of the legal and political paradigm in Congress and the courts, Steele concludes her proposal is best suited to protect workers from discrimination and workplace injuries in the interim.