The Occupational Safety and Health Administration's (OSHA) Whistleblower Protection Program (WPP) plays a vital role in protecting workers from employers who cut corners on safety or who violate other federal laws: It protects those workers who report such abuses from retaliation, making it harder for employers to get away with breaking the law. Or at least that's how it's supposed to work. The 23 separate federal statutes the program encompasses cover a wide range of corporate wrongdoing, including violations of clean air and drinking water standards, food safety standards, workplace health and safety standards, and much more. If an employer retaliates against an employee for taking any of the actions covered by these laws, the employee may file a retaliation complaint with OSHA for investigation.

OSHA's WPP is critical for ensuring workers have safe and healthy workplaces where they can raise concerns without fear of retaliation. But …

Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.

Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic – you can find the video here and do a text search for "workers' compensation" – I was especially pleased to hear workers' compensation immunity discussed at 1:14:20 to about 1:14:50. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought.

Coincidentally, I had been reading in The Atlantic as the Senate hearing was commencing an exceptionally good and sobering account of …

Originally published on Legal Planet. Reprinted with permission.

Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.

In this post, I'm going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.

Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant's business operation, that better precautions would have prevented the exposure, and that they weren't exposed elsewhere.

Tort lawyers may be …

Yesterday, a group of 20 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff joined a letter to House and Senate leaders calling on them to reject efforts to attach to future COVID-19 pandemic-related legislation provisions that would interfere with the ability of workers, consumers, and members of their families to hold businesses accountable when their unreasonably dangerous actions have caused workers or consumers to contract the virus. Instead, as the letter urges, lawmakers should ensure that our courthouse doors remain open to all Americans to pursue any meritorious civil justice claims for injuries they suffer arising from companies' failure to guard against the spread of the coronavirus.

The letter comes as the Senate Judiciary Committee is set to hold a hearing this afternoon on the topic of “Examining Liability During the COVID-19 Pandemic.” Insulating corporations against public accountability through the courts has long been …

In the latest episode of CPR Board President Rob Verchick's Connect the Dots podcast, he and CPR Member Scholars Michael Duff and Thomas McGarity explore worker safety issues in the era of the coronavirus.

McGarity begins the conversation with the story of Annie Grant, a 15-year veteran of the packing line at a Tyson Food poultry processing plant in Camilla, Georgia. One morning in late March, weeks after the nation had awakened to the danger of the coronavirus and states had begun locking down, she felt feverish. When her children urged her to stay home rather than work with a fever on the chilled poultry line, she told them that the company insisted that she continue to work. Furthermore, Tyson was offering a $500 bonus to employees if they worked for three months without missing a day. So, she went in to work, where she labored shoulder-to-shoulder …

This is an excerpt from an op-ed originally published in the Baltimore Sun. You can read the full op-ed here.

President Donald Trump invoked the Defense Production Act to order meat and poultry plants to continue operating despite COVID-19 outbreaks, exposing Maryland's poultry workers to enormous risks. Poultry processors haven't demonstrated they're able to keep workers safe and healthy, but they know that many of these low-wage workers will be forced to return. To top it all off, one of the president's goals with this order was to provide legal immunity to companies, so that they can't be sued by employees who are infected as a result of unsafe working conditions.

All the risks cascade down onto the workers. Many are from immigrant backgrounds and don't speak English. They're also exempted from vital protections, federal relief packages, and can't access COVID-19 treatment and care. We're standing in …

Update: The president's order has issued. I now have doubt as to whether the Defense Production Act provides immunity to tort actions (if that was the plan) to parties bound by it outside the context of military contractors. See In Re Aircraft Crash Lit. Frederick, Md., 752 F. Supp. 1326, 1330 n.2 (S.D. Ohio 1990); see In Re Agent Orange Product Liability Litigation, 597 F. Supp. 740, 843 n.27 (E.D.N.Y. 1984). As we used to say back in my ice hockey days, this could be a donnybrook.

When I was a young whipper-snapper, an airline supervisor once ordered me to put my rain gear on and enter an airplane baggage compartment into which "lavatory fluid" had discharged due to a malfunction. I told him to pound sand. That memory popped into my head when I read that the president was ordering …

Tomorrow, April 28, is Workers' Memorial Day, a day the labor movement established to mourn workers killed on the job and to renew the fight for the living. This year, as the coronavirus pandemic grinds on, taking its toll on workers and their families, we’re reminded more than ever of how critical it is to guarantee all workers the right to a safe and healthy workplace.

Even before COVID-19, a typical day in the United States saw 14 workers killed on the job – hardworking people who set out for work, never to return home. In 2018, 5,250 workers – one worker every 100 minutes – died on the job. Black and Latinx workers were hit hardest in 2018, with a 16 percent increase from 2017 in black worker deaths and a 6 percent increase in Latinx worker deaths. As in years past, tens of thousands of additional …

As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed.

Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts.

Since early March, unions, advocates, and workers have called on OSHA to take immediate action to adopt an emergency temporary standard and subsequent permanent standard …