Labor Law

Liability in the Workplace

Workplace Safety

Under OSHA mandates, an employer is required to provide every employee "employment … free from recognized hazards that are likely to cause death or serious physical harm." Violations of OSHA standards can result in heavy employer penalties, potential criminal action against managers, and claims for damages from injured employees and wrongful death claims from family members of employees who died from work-related injuries.

In 1970 Congress passed the Occupational Safety and Health Act of 1970 to ensure that workplaces would be free of occupational hazards. Three administrative agencies were established to provide oversight and to enforce the standards of the act: the National Institute of Occupational Safety and Health (NIOSH), the Occupational Safety and Health Administration (OSHA), which is the federal agency that makes and enforces rules to ensure employees work in healthy, safe environments, and the Occupational Safety and Health Review Commission (OSHRC).

The secretary of labor is responsible for implementing the goals and objectives of these three administrative agencies. The secretary is also responsible for issuing temporary variances to businesses that do not have the technical ability or capacity to fix an occupational hazard in the time allowed. A temporary variance may be requested if technical personnel, materials, or equipment are temporarily unavailable, but the employer must demonstrate that steps are being taken to ensure worker safety in the meantime, and a plan for compliance must be developed.

Notice and comment is a process for federal rulemaking that makes the proposed rule available to the general public for comments. To institute a new standard, OSHA must first publish a proposed rule in the Federal Register. After that, the public has 30 days to request a hearing for the reasoning behind the change. Following the hearing, OSHA has 60 days to publish any changes. An employer or any person adversely affected by a standard may file an appeal with the U.S. Court of Appeals within 60 days, where the secretary of labor must present evidence that the new standard lessens the danger of the current occupational hazard. If the circuit court rules in OSHA's favor, then the new standard will go into effect unless there is an appeal, or request to a higher court for a decision to be reversed.

OSHA may inspect any business premises, and business records may be made available during normal hours of operation or at any time that the agency believes is appropriate. Employers must have records of employee injuries and illnesses.

If an employer is found to be in violation, then the director of OSHA will deliver a citation, which the employer has 15 days to contest. If the employer does not fix the issue, then penalties range from $5,000 to $70,000 per violation. Individual states may develop standards that address issues other than those addressed by the Department of Labor.

Workplace Safety

OSHA works to ensure safe working conditions. OSHA employees have access to workplaces and to certain employer files as part of their duties.

Immigration and Labor Laws

The U.S. Department of Homeland Security seeks civil and criminal penalties against employers who hire undocumented workers.
The Wage and Hour Division of the U.S. Department of Labor is responsible for administering parts of the Immigration and Nationality Act that protect nonimmigrant workers. The U.S. Department of Homeland Security, whose primary function is to prepare for, prevent, and respond to domestic emergencies, imposes civil and criminal penalties against employers who hire undocumented workers. An undocumented worker is someone who is not authorized to work in the United States. Often, the term refers to an undocumented person, which is someone who is in the country without any authorization; however, it also refers to those who have permission to be in the United States but lack permission to work there. Tourists and students may be authorized to be in the country, but they are not authorized to hold jobs because of that status.

Immigration Laws

Ensuring that employees have a legal right to work in the United States is a priority for the U.S. Department of Homeland Security and employers.
Employers must verify that each new hire is allowed to work in the United States. They do this by getting a copy of the I-9 form and supporting documents from every employee. The I-9 is a government form issued by the U.S. Department of Homeland Security and the U.S. Citizenship and Immigration Services. The I-9 is not filed with the government, and there is no fee to complete it. However, U.S. Citizenship and Immigration Services mandates that employers must maintain copies of the I-9 forms, along with the supporting documents, on file and separate from the personnel file for three years after the date of the hire or one year after the date of the end of employment, whichever is later. Compliance is required per federal regulations.

Acceptable supporting documents include a U.S. passport, a green card, and an employment authorization card. Any one of these is enough to prove identity and authorization. Other supporting documents include a U.S. state driver's license or state identification card, a school ID, a U.S. birth certificate, and a Social Security card. These documents often have fewer security measures, so the government requires employees to submit two of them.

Penalties for failing to verify employees can range from $110 to $1,100 per technical violation. These penalties can be higher for companies that have a large percentage of undocumented workers or a history of violations. Five factors are considered in determining penalty amounts:

  • the size of the business
  • a good-faith effort—that is, an honest and sincere attempt—to comply with regulations
  • the seriousness of the violation
  • whether the violation involved illegal workers
  • whether the company has a history of previous violations