ELR Citation: ELR 20404
No(s). 189 (N.Y. Oct 16, 1990)

The court holds that the Occupational Safety and Health Act (OSH Act) does not expressly or implicitly preempt the enforcement of New York penal law against employers for conduct arising out of the failure to maintain a safe work environment. Corporate officers of a thermometer manufacturing company were cited under the OSH Act for workplace safety violations related to mercury contamination. They were later convicted by a jury under New York criminal laws of conspiracy, falsifying business records, and assault in connection with a clandestine mercury reclamation operation. The court holds that the broad language of the savings clause in §4(b)(4), which preserves rights, duties, and liabilities under state common and statutory law, together with the historic presumption against preemption of state police powers, demonstrates that the OSH Act's scheme for regulation of workplace safety does not expressly preempt state enforcement of criminal laws to punish an employer's conduct in failing to provide a safe workplace. The court notes that §18(b), which permits states to assume responsibility for regulating workplace safety by submitting a plan for federal approval, relates only to standards for workplace safety and does not speak to state penal law enforcement. The court holds that because state criminal laws do not require that conditions be met or that practices be adopted, they are not the equivalent of workplace safety standards. Unlike OSH Act standards that are intended to prevent workplace illnesses and accidents, state criminal laws are triggered only by the commission of proscribed acts, wherever they may occur. Thus, the court concludes that the enforcement of state penal law is sufficiently discrete in relation to the enforcement of OSH Act standards to warrant its continued viability in the federally regulated workplace.

The court next rules that state prosecution is not implicitly preempted. The court holds that the Act's provision that states assume the fullest responsibility for workplace safety regulation, together with the detailed provisions in §18 for state jurisdiction over workplace issues, demonstrates that federal regulation of occupational health and safety does not occupy the field. The court notes that the comprehensiveness of a federal statute or regulation does not conclusively indicate that Congress intended it to have preemptive effect. Congress' intent that states exercise jurisdiction in the absence of an adopted federal standard and impose stricter health and safety standards by submitting a state plan for federal approval is reflected in §18's careful balancing of the state's interest in regulating workplace concerns against the need for enacting minimum national health and safety standards. Thus, the court concludes that any overlap between conduct subject to state penal law enforcement and conduct already subject to federal regulation is entirely consistent with the Act's purpose of ensuring workplace safety, and state prosecution may even cause employers to pay stricter attention to OSH Act standards. Additionally, the court holds that the OSH Act's skeletal penalty provisions do not preempt state criminal law; rather, they operate as a floor that states can supplement with sanctions authorized by their own criminal laws. Finally, the court rules that enforcement of state criminal law is not preempted by any conflict with the OSH Act's comprehensive scheme for workplace regulation. Congress' foremost purpose in drafting the OSH Act was not to ensure uniformity of workplace safety standards. The court notes that the legislative history demonstrates Congress' intent to ensure a minimal level of workplace safety through a multiplicity of regulatory approaches. Statements from the Congressional Record reveal an effort to prevent the race for the bottom that occurred when states were responsible for setting their own workplace safety standards. Economic disadvantages that attached to aggressive state workplace safety regulation—such as losing industry to states with less stringent standards—left the states with no incentive to adopt strict legislation. Thus, the court concludes that state criminal prosecutions further the OSH Act's goals by deterring future criminal conduct by employers. Additionally, because the OSH Act does not require an employer to engage in conduct that is prohibited by state law, the court holds that the second ground for conflict preemption—that compliance with both state and federal law is impossible—does not apply.

Counsel for Appellants
Albert J. Brackley
16 Court St., Brooklyn NY 11241
(718) 625-5884

Counsel for Respondent
Nancy Stearns, O. Peter Sherwood, Lawrence S. Kahn
Department of Law
State Capitol, Albany NY 12224
(518) 474-7330