Worker Deaths: Federal Preemption Rejected by California Court

In a case against a company the Orange County district attorney said was responsible for the deaths of two employees, the Supreme Court of California found that the federal Occupational Safety and Health Act of 1970 (OSH Act) does not preempt workplace safety standards established by the state’s own occupational safety and health agency (Cal/OSHA).

“The district attorney’s use of the state’s [unfair competition law (UCL)] and [fair advertising law (FAL)] causes of action does not encroach on a field fully occupied by federal law, nor does it stand as an obstacle to the accomplishment of the federal objective of ensuring a nationwide minimum standard of workplace protection,” stated the Supreme Court. “In addition, the federal act’s structure and language do not reflect a clear purpose of Congress to preempt such claims against an employer.”

The Supreme Court’s opinion reversed a judgment for the company by a state Court of Appeal.

Absence of Safety Valve

The case involved Solus Industrial Innovations, LLC, which manufactures plastics at its Orange County facility. In 2007, the company installed an electric water heater at the facility. In 2009, the water heater exploded, killing two employees.

The California Division of Occupational Safety and Health investigated and subsequently charged Solus with five violations of state occupational safety and health regulations—failure to provide a proper safety valve; permitting unsafe operation of machinery and equipment; improper maintenance of machinery and equipment; failing to use good engineering practices; and permitting unqualified and untrained personnel to operate and maintain machinery and equipment. The Division also cited Solus with a willful violation for failing to maintain the water heater in a safe condition.

In 2012, the district attorney filed civil and criminal charges against Solus.

Implied Preemption

The Court of Appeal held that UCL and FAL claims are preempted by the federal OSH Act both expressly and through application of the principles of implied preemption. It concluded that Congress has essentially occupied the entire field of workplace safety regulation and enforcement other than workers’ compensation and the precise provisions of an approved state plan. It reasoned that “[b]ecause the [federal] OSH Act allows a state to avoid federal preemption only if it obtains federal approval of its own plan, it necessarily follows that a state has no authority to enact and enforce laws governing workplace safety which fall outside of that approved plan.”

In the view of the Court of Appeal, the district attorney’s use of UCL and FAL actions based on violations of approved Cal/OSHA standards was an attempt to govern workplace safety without securing approval by the federal secretary of Labor. In other words, UCL and FAL actions, upon which the district attorney based the case, were not explicitly approved by the federal government and, therefore could not be the legal basis for state action against Solus.

Preempted Field is Narrow

In disagreeing with this interpretation, the Supreme Court made the following points:

• In enacting the federal OSH Act, Congress entered a field that traditionally had been occupied by the states. But federal regulation of the workplace was not intended to be all-encompassing. Unlike some federal statutes, the OSH Act does not employ broad language preempting all state regulation, laws, or remedies relating to, concerning, or merely touching on the issue at hand, namely occupational safety and health.
• Various elements of the federal OSH Act indicate that the preempted field is narrow.  First, when there is no federal standard, there is no preemption. This is an acknowledgment that federal authority does not occupy the entire field.  Rather, states retain authority freely to apply their own law in the field of occupational safety or health when federal OSHA has not promulgated an applicable federal standard.
• Even when there are federal standards, states may assume responsibility for development and enforcement of state occupational safety and health standards provided the state submits and gains approval for a state plan. Under the terms of the statute, an approved state plan preempts federal standards.
• The federal OSH Act’s savings clause indicates that the field of implied preemption is narrow. That clause disclaims any intent to interfere with state law in a broad domain affecting occupational safety and health whether or not there is an approved state plan.

Conclusion

“The federal OSH Act allows a state with an approved plan to implement modifications or additions without prior approval of the plan change by federal OSHA,” concluded the Supreme Court. “In the absence of a clear and manifest congressional purpose to preempt claims such as the UCL and FAL claims asserted in this action, such claims are encompassed in the presumption against preemption that arises upon a state’s assumption of responsibility under the federal OSH Act to regulate worker safety and health.”

The California Supreme Court’s opinion in Solus v. Superior Court of Orange County is at http://www.courts.ca.gov/opinions/documents/S222314.PDF.