d90king
13th April 2009, 10:38
In March, 2004, the Oklahoma legislature passed a law holding employers criminally liable if they took any action against an employee for storing a firearm in a locked vehicle on company property. Various Oklahoma businesses subsequently filed suit seeking to enjoin the enforcement of the new Oklahoma laws, alleging they were (1) unconstitutionally vague; (2) an unconstitutional taking of private property, as well as a violation of Plaintiffs due process right to exclude others from their property; and (3) preempted by various federal statutes. The district court for the Northern District of Oklahoma held that the challenged laws were preempted by the Occupational Health and Safety Act (OSH Act) of 1970 and permanently enjoined enforcement of the new laws.
The U.S. Court of Appeals for the 10th Circuit recently reversed.
The issue in the case was preemption: whether the Occupational Safety and Health Act preempted state regulations pertaining to maintenance of a safe workplace. (Note: it was the big companies, seeking to assert property rights, who argued for government preemption.)
The statute reads:
BUSINESS OWNERS RIGHTS
A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, or business entity to control the possession of weapons on any property owned or controlled by the person or business entity.
B. No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.
21 Okla. Stat. 1289.7a & 1290.22.2 21 Okla. Stat. 1290.22
Here is the Court's reasoning (note the links to the OSHA web site):
The original impetus behind the OSH Act was danger surrounding traditional work-related hazards. See 29 U.S.C. 651(a) (noting the OSH Act arose from concern surrounding personal injuries and illnesses arising out of work situations); S. Rep. 91-1282, at 5178 (describing at length the problems of industrial accidents and occupational diseases, without referencing workplace violence). In recent years, however, OSHA has recognized workplace violence as a serious safety and health issue. See, e.g., Workplace Violence, http://www.osha.gov/SLTC/workplaceviolence/index.html (a section of OSHAs website devoted to workplace violence). To that end, OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries. See Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers and Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments, both available at http://www.osha.gov/SLTC/workplacevi...solutions.html. OSHA has not, however, promulgated any mandatory standards regarding workplace violence.
. . . .
Because the absence of any specific OSHA standard on workplace violence is undisputed, the district court correctly recognized that the only possible area of OSH Act preemption was under the general duty clause and the OSH Acts overarching purpose. Thus, in finding preemption, the district court held that gun related workplace violence was a recognized hazard under the general duty clause, and, therefore, an employer that allows firearms in the company parking lot may violate the OSH Act. We disagree. OSHA has not indicated in any way that employers should prohibit firearms from company parking lots. OSHAs website, guidelines, and citation history do not speak at all to any such prohibition. In fact, OSHA declined a request to promulgate a standard banning firearms from the workplace. See Standards Interpretations Letter, September 13, 2006, available at 2006 WL 4093048. I n declining this request, OSHA stressed reliance on its voluntary guidelines and deference to other federal, state, and local lawenforcement agencies to regulate workplace homicides. Id. OSHA is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard. Thus, we are not presented with a situation where the general duty clause applies because OSHA has been unable to promulgate a standard for an unanticipated hazard. . . .
The district courts conclusion is also belied by the only opinion issued by an Administrative Law Judge (ALJ) concerning a general duty clause violation due to workplace violence. See Megawest Fin., Inc., 1995 OSAHRC Lexis 80 (May 8, 1995). In Megawest, the Secretary of Labor cited the operator of an apartment community located in a rough neighborhood for failing to take steps to prevent residents violent acts. See id. at *1-2, *6-7. The ALJ reversed the Secretarys citation, ruling that potential violent behavior by residents did not constitute a recognized hazard within the meaning of the general duty clause. Id. at *32. In reversing the citation, the ALJ expressed the difficulties associated with requiring employers to abate hazards of random physical violence. See id. at *28 (recognizing that the hazard of physical assault . . . arises not from the processes or materials of the workplace, but from the anger and frustration of people). The ALJ stressed that an employees general fear that he or she may be subject to violent attacks is not enough to require abatement of a hazard under the general duty clause. See id. at *27; see also Pa. Power & Light Co. v. Occupational Health and Safety Review Commn, 737 F.2d 350, 354 (3d Cir. 1984) (recognizing that an employers duty does not extend to the abatement of dangers created by unforeseeable or unpreventable employee misconduct); Pratt & Whitney Aircraft v. Secy of Labor, 649 F.2d 96, 104 (2d Cir. 1981) (indicating the OSH Act only requires employers to guard against significant risks, not ephemeral possibilities); Natl Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commn, 489 F.2d 1257, 1266 (D.C. Cir. 1973) (noting that [a] demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime).
Undeterred by OSHAs and Megawests express restraint in policing social behavior via the general duty clause, the district court held firearms stored in locked vehicles on company property may constitute a recognized hazard. In so finding, the district court relied heavily on OSHAs general statement that employers may be cited for a general duty clause violation [i]n a workplace where the risk of violence and serious personal injury are significant enough to be recognized hazards. Standard Interpretations Letter, December 10, 1992, available at http://http://www.osha.gov/SLTC/workplacevi...standards.html. . The district court also relied on the ALJs indication in Megawest that it might be possible to violate the general duty clause for failure to prevent workplace violence. See id. at *29 (noting a high standard of proof is necessary to show that an employer recognized the hazard of workplace violence). Despite these general statements, OSHAs action (or inaction) regarding this matter undermines the district courts conclusion. The broad meaning of recognized hazard espoused by the district court is simply too speculative and unsupported to construe as the clear and manifest purpose of Congress. . . .
The U.S. Court of Appeals for the 10th Circuit recently reversed.
The issue in the case was preemption: whether the Occupational Safety and Health Act preempted state regulations pertaining to maintenance of a safe workplace. (Note: it was the big companies, seeking to assert property rights, who argued for government preemption.)
The statute reads:
BUSINESS OWNERS RIGHTS
A. Except as provided in subsection B of this section, nothing contained in any provision of the Oklahoma Self-Defense Act, Section 1290.1 et seq. of this title, shall be construed to limit, restrict or prohibit in any manner the existing rights of any person, property owner, tenant, employer, or business entity to control the possession of weapons on any property owned or controlled by the person or business entity.
B. No person, property owner, tenant, employer, or business entity shall be permitted to establish any policy or rule that has the effect of prohibiting any person, except a convicted felon, from transporting and storing firearms in a locked vehicle on any property set aside for any vehicle.
21 Okla. Stat. 1289.7a & 1290.22.2 21 Okla. Stat. 1290.22
Here is the Court's reasoning (note the links to the OSHA web site):
The original impetus behind the OSH Act was danger surrounding traditional work-related hazards. See 29 U.S.C. 651(a) (noting the OSH Act arose from concern surrounding personal injuries and illnesses arising out of work situations); S. Rep. 91-1282, at 5178 (describing at length the problems of industrial accidents and occupational diseases, without referencing workplace violence). In recent years, however, OSHA has recognized workplace violence as a serious safety and health issue. See, e.g., Workplace Violence, http://www.osha.gov/SLTC/workplaceviolence/index.html (a section of OSHAs website devoted to workplace violence). To that end, OSHA has issued voluntary guidelines and recommendations for employers seeking to reduce the risk of workplace violence in at-risk industries. See Guidelines for Preventing Workplace Violence for Health Care and Social Service Workers and Recommendations for Workplace Violence Prevention Programs in Late-Night Retail Establishments, both available at http://www.osha.gov/SLTC/workplacevi...solutions.html. OSHA has not, however, promulgated any mandatory standards regarding workplace violence.
. . . .
Because the absence of any specific OSHA standard on workplace violence is undisputed, the district court correctly recognized that the only possible area of OSH Act preemption was under the general duty clause and the OSH Acts overarching purpose. Thus, in finding preemption, the district court held that gun related workplace violence was a recognized hazard under the general duty clause, and, therefore, an employer that allows firearms in the company parking lot may violate the OSH Act. We disagree. OSHA has not indicated in any way that employers should prohibit firearms from company parking lots. OSHAs website, guidelines, and citation history do not speak at all to any such prohibition. In fact, OSHA declined a request to promulgate a standard banning firearms from the workplace. See Standards Interpretations Letter, September 13, 2006, available at 2006 WL 4093048. I n declining this request, OSHA stressed reliance on its voluntary guidelines and deference to other federal, state, and local lawenforcement agencies to regulate workplace homicides. Id. OSHA is aware of the controversy surrounding firearms in the workplace and has consciously decided not to adopt a standard. Thus, we are not presented with a situation where the general duty clause applies because OSHA has been unable to promulgate a standard for an unanticipated hazard. . . .
The district courts conclusion is also belied by the only opinion issued by an Administrative Law Judge (ALJ) concerning a general duty clause violation due to workplace violence. See Megawest Fin., Inc., 1995 OSAHRC Lexis 80 (May 8, 1995). In Megawest, the Secretary of Labor cited the operator of an apartment community located in a rough neighborhood for failing to take steps to prevent residents violent acts. See id. at *1-2, *6-7. The ALJ reversed the Secretarys citation, ruling that potential violent behavior by residents did not constitute a recognized hazard within the meaning of the general duty clause. Id. at *32. In reversing the citation, the ALJ expressed the difficulties associated with requiring employers to abate hazards of random physical violence. See id. at *28 (recognizing that the hazard of physical assault . . . arises not from the processes or materials of the workplace, but from the anger and frustration of people). The ALJ stressed that an employees general fear that he or she may be subject to violent attacks is not enough to require abatement of a hazard under the general duty clause. See id. at *27; see also Pa. Power & Light Co. v. Occupational Health and Safety Review Commn, 737 F.2d 350, 354 (3d Cir. 1984) (recognizing that an employers duty does not extend to the abatement of dangers created by unforeseeable or unpreventable employee misconduct); Pratt & Whitney Aircraft v. Secy of Labor, 649 F.2d 96, 104 (2d Cir. 1981) (indicating the OSH Act only requires employers to guard against significant risks, not ephemeral possibilities); Natl Realty and Construction Co., Inc. v. Occupational Safety and Health Review Commn, 489 F.2d 1257, 1266 (D.C. Cir. 1973) (noting that [a] demented, suicidal, or willfully reckless employee may on occasion circumvent the best conceived and most vigorously enforced safety regime).
Undeterred by OSHAs and Megawests express restraint in policing social behavior via the general duty clause, the district court held firearms stored in locked vehicles on company property may constitute a recognized hazard. In so finding, the district court relied heavily on OSHAs general statement that employers may be cited for a general duty clause violation [i]n a workplace where the risk of violence and serious personal injury are significant enough to be recognized hazards. Standard Interpretations Letter, December 10, 1992, available at http://http://www.osha.gov/SLTC/workplacevi...standards.html. . The district court also relied on the ALJs indication in Megawest that it might be possible to violate the general duty clause for failure to prevent workplace violence. See id. at *29 (noting a high standard of proof is necessary to show that an employer recognized the hazard of workplace violence). Despite these general statements, OSHAs action (or inaction) regarding this matter undermines the district courts conclusion. The broad meaning of recognized hazard espoused by the district court is simply too speculative and unsupported to construe as the clear and manifest purpose of Congress. . . .