The facts in case No. 264 were substantially as follows: On June 20, 1896, complaint was made to a justice of the peace of Salt Lake City that the petitioner, Holden, had unlawfully employed ‘one John Anderson to work and labor as a miner in the underground workings of the Old Jordan Mine, in Bingham canon, in the county aforesaid, for the period of ten hours each day; and said defendant, on the date aforesaid and continuously since said time, has unlawfully required said John Anderson, under and by virtue of said employment, to work and labor in the underground workings of the mine aforesaid for the period of ten hours each day, and that said employment was not in case of an emergency, or where life or property was in imminent danger,-contrary,’ etc.

Defendant, Holden, having been arrested upon a warrant issued upon said complaint, admitted the facts set forth therein, but said he was not guilty, because he is a native-born citizen of the United States, residing in the state of Utah; that the said John Anderson voluntarily engaged his services for the hours per day alleged; and, that the facts charged did not constitute a crime, because the act of the state of Utah which creates and defines the supposed offense is repugnant to the constitution of the United States in these respects:

‘It deprives the defendant and all employers and employés of the right to make contracts in a lawful was, and for lawful purposes.

‘It is class legislation, and not equal or uniform in its provisions.

‘It deprives the defendant and employers and employés of the equal protection of the laws, abridges the privileges and immunities of the defendant as a citizen of the United States, and deprives him of his property and liberty without due process of law.’

The court, having heard the evidence, found the defendant guilty as charged in the complaint, imposed a fine of $50 and costs, and ordered that the defendant be imprisoned in the county jail for a term of 57 days, or until such fine and costs be paid.

Thereupon petitioner sued out a writ of habeas corpus from the supreme court of the state; annexing a copy of the proceedings before the justice of the peace, and praying his discharge. The supreme court denied his application, and remanded him to the custody of the sheriff, whereupon he sued out this writ of error, assigning the unconstitutionality of the law.

***

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.

This case involves the constitutionality of an act of the legislature of Utah entitled ‘An act regulating the hours of employment in underground mines and in smelters and ore reduction works.’ The following are the material provisions:

‘Section 1. The period of employment of workingmen in all underground mines or workings shall be eight hours per day, except in cases of emergency where life or property is in imminent danger.

‘Sec. 2. The period of employment of workingmen in smelters and all other institutions for the reduction or refining of ores or metals shall be eight hours per day, except in cases of emergency where life or property is in imminent danger.

‘Sec. 3. Any person, body corporate, agent, manager, or employer, who shall violate any of the provisions of sections one and two of this act, shall be guilty of a misdemeanor.’

The supreme court of Utah was of opinion that, if authority in the legislature were needed for the enactment of the statute in question, it was found in that part of article 16 of the constitution of the state which declared that ‘the legislature shall pass laws to provide for the health and safety of employees in factories, smelters and mines.’ As the article deals exclusively with the rights of labor, it is here reproduced in full, as exhibiting the authority under which the legislature acted, and as throwing light upon its intention in enacting the statute in question (Laws 1896, p. 219):

‘Section 1. The rights of labor shall have just protection through laws calculated to promote the industrial welfare of the state.

‘Sec. 2. The legislature shall provide by law for a board of labor, conciliation and arbitration which shall fairly represent the interests of both capital and labor. The board shall perform duties and receive compensation as prescribed by law.

‘Sec. 3. The legislature shall prohibit:

‘(1) The employment of women, or of children under the age of fourteen years, in underground mines.

‘(2) The contracting of convict labor.

‘(3) The labor of convicts outside prison grounds, except on public works under the direct control of the state.

‘(4) The political and commercial control of employees.

‘Sec. 4. The exchange of blacklists by railroad companies, or other corporations, associations or persons is prohibited.

‘Sec. 5. The right of action to recover damages for injuries resulting in death shall never be abrogated, and the amount recoverable shall not be subject to any statutory limitation.

‘Sec. 6. Eight hours shall constitute a day’s work on all works or undertakings carried on or aided by the state, county or municipal governments; and the legislature shall pass laws to provide for the health and safety of employees in factories, smelters and mines.

‘Sec. 7. The legislature, by appropriate legislation, shall provide for the enforcement of the provisions of this article.’

The validity of the statute in question is, however, challenged upon the ground of an alleged violation of the fourteenth amendment to the constitution of the United States, in that it abridges the privileges or immunities of citizens of the United States, deprives both the employer and the laborer of his property without due process of law, and denies to them the equal protection of the laws.

An examination of … [the] classes of cases under the fourteenth amendment will demonstrate that, in passing upon the validity of state legislation under that amendment, this court has not failed to recognize the fact that the law is, to a certain extent, a progressive science; that, in some of the states, methods of procedure which, at the time the constitution was adopted, were deemed essential to the protection and safety of the people, or to the liberty of the citizen, have been found to be no longer necessary; that restrictions which had formerly been laid upon the conduct of individuals, or of classes of individuals, had proved detrimental to their interests, while, upon the other hand, certain other classes of persons (particularly those engaged in dangerous or unhealthful employments) have been found to be in need of additional protection.

…Of course, it is impossible to forecast the character or extent of these changes; but in view of the fact that, from the day Magna Charta was signed to the present moment, amendments to the structure of the law have been made with increasing frequency, it is impossible to suppose that they will not continue, and the law be forced to adapt itself to new conditions of society, and particularly to the new relations between employers and employés, as they arise.

…This court has never attempted to define with precision the words ‘due process of law,’ nor is it necessary to do so in this case. It is sufficient to say that there are certain immutable principles of justice, which inhere in the very idea of free government, which no member of the Union may disregard, as that no man shall be condemned in his person or property without due notice, and an opportunity of being heard in his defense. What shall constitute due process of law was perhaps as well stated by Mr. Justice Curtis in Murray’s Lessees v. Land Co., 18 How. 272, 276, as anywhere. He said: ‘The constitution contains no description of those processes which it was intended to allow or forbid. It does not even declare what principles are to be applied to ascertain whether it be due process. It is manifest that it was not left to the legislative power to enact any process which might be devised. The article is a restraint on the legislative as well as on the executive and judicial powers of the government, and cannot be so construed as to leave congress free to make any process ‘due process of law’ by its mere will. To what principles, then, are we to resort to ascertain whether this process enacted by congress is due process? To this the answer must be twofold: We must examine the constitution itself, to see whether this process be in conflict with any of its provisions. If not found to be so, we must look to those settled usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition, by having been acted on by them after the settlement of this country.’

… As the possession of property, of which a person cannot be deprived, doubtless implies that such property may be acquired, it is safe to say that a state law which undertakes to deprive any class of persons of the general power to acquire property would also be obnoxious to the same provision. Indeed, we may go a step further, and say that as property can only be legally acquired, as between living persons, by contract, a general prohibition against entering into contracts with respect to property, or having as their object the acquisition of property, would be equally invalid.

The latest utterance of this court upon this subject is contained in the case of Allgeyer v. Louisiana, 165 U. S. 578, 591, 17 Sup. Ct. 427, in which it was held that an act of Louisiana which prohibited individuals within the state from making contracts of insurance with corporations doing business in New York was a violation of the fourteenth amendment. In delivering the opinion of the court, Mr. Justice Peckham remarked: ‘In the privilege of pursuing an ordinary calling or trade, and of acquiring, holding, and selling property, must be embraced the right to make all proper contracts in relation thereto; and, although it may be conceded that this right to contract in relation to persons or property, or to do business within the jurisdiction of the state, may be regulated, and sometimes prohibited, when the contracts or business conflict with the policy of the state as contained in its statutes, yet the power does not and cannot extend to prohibiting a citizen from making contracts of the nature involved in this case, outside of the limits and jurisdiction of the state, and which are also to be performed outside of such jurisdiction.’

This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous or so far detrimental to the health of employés as to demand special precautions for their well-being and protection, or the safety of adjacent property. While this court has held that the police power cannot be put forward as an excuse for oppressive and unjust legislation, it may be lawfully resorted to for the purpose of preserving the public health, safety, or morals, or the abatement of public nuisances, and a large discretion ‘is necessarily vested in the legislature, to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests.’ Lawton v. Steele, 152 U. S. 133, 136, 14 Sup. Ct. 499.

The extent and limitations upon this power are admirably stated by Chief Justice Shaw in the following extract from his opinion in Massachusetts v. Alger, 7 Cush. 84.

‘We think it a settled policy, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified his title, holds it under the implied liability that its use may be so regulated that it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth, as well in the interior as that bordering on the tide waters, is derived directly or indirectly from the government, and held subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitation in their enjoyment as will prevent them from being injurious, and to such reasonable restraints and regulations by law as the legislature, under the government and controlling power vested in them by the constitution, may think necessary and expedient.’

This power, legitimately exercised, can neither be limited by contract nor bartered away by legislation.

While this power is necessarily inherent in every form of government, it was, prior to the adoption of the constitution, but sparingly used in this country. As we were then almost purely an agricultural people, the occasion for any special protection of a particular class did not exist. Certain profitable employments, such as lotteries and the sale of intoxicating liquors, which were then considered to be legitimate, have since fallen under the ban of public opinion, and are now either altogether prohibited, or made subject to stringent police regulations. The power to do this has been repeatedly affirmed by this court.

While the business of mining coal and manufacturing iron began in Pennsylvania as early as 1716, and in Virginia, North Carolina, and Massachusetts even earlier than this, both mining and manufacturing were carried on in such a limited way, and by such primitive methods, that no special laws were considered necessary, prior to the adoption of the constitution, for the protection of the operatives; but, in the vast proportions which these industries have since assumed, it has been found that they can no longer be carried on, with due regard to the safety and health of those engaged in them, without special protection against the dangers necessarily incident to these employments. In consequence of this, laws have been enacted in most of the states designed to meet these exigencies, and to secure the safety of persons peculiarly exposed to these dangers. Within this general category are ordinances providing for fire escapes for hotels, theaters, factories, and other large buildings; a municipal inspection of boilers; and appliances designed to secure passengers upon railways and steamboats against the dangers necessarily incident to these methods of transportation. In states where manufacturing is carried on to a large extent, provision is made for the protection of dangerous machinery against accidental contact; for the cleanliness and ventilation of working rooms; for the guarding of well holes, stairways, elevator shafts; and for the employment of sanitary appliances. In others, where mining is the principal industry, special provision is made for the shoring up of dangerous walls; for ventilation shafts, bore holes, escapement shafts, means of signaling the surface; for the supply of fresh air, and the elimination, as far as possible, of dangerous gases; for safe means of hoisting and lowering cages; for a limitation upon the number of persons permitted to enter a cage; that cages shall be covered; and that there shall be fences and gates around the top of  shafts, besides other similar precautions. Sand. & H. Dig. Ark. p. 1149; Rev. St. Cal. §§ 5045-5062; Supp. Mills’ Ann. St. Colo. c. 85; Gen. St. Conn. 1888, §§ 2645-2647, 2263-2272; Rev. St. Ill. 1889, p. 980; Thornt. Ind. St. 1897, c. 98, p. 1652; 2 Gen. St. Kan. 1897, pp. 813-824; Ky. St. (Barbour & Carroll) c. 88. p. 951; Supp. Pub. St. Mass. 1889-95, pp. 582, 746, 1163; How. Ann. St. Mich. § 9209b et seq.; 3 Gen. St. N. J. p. 1900 et seq.; 2 Rev. St. (Code & Gen. Laws N. Y.) p. 2069; Supp. Bright. Purd. Dig. Pa. p. 2241 et seq.

These statutes have been repeatedly enforced by the courts of the several states; their validity assumed; and, so far as we are informed, they have been uniformly held to be constitutional.

In Daniels v. Hilgard, 77 Ill. 640, it was held that the legislature had power, under the constitution, to establish reasonable police regulations for the operating of mines and collieries, and that an act providing for the health and safety of persons employed in coal mines, which required the owner or agent of every coal mine or colliery employing 10 men or more to make or cause to be made an accurate map or plan of the workings of such coal mine or colliery, was not unconstitutional, and that the question whether certain requirements are a part of a system of police regulations adopted to aid in the protection of life and health was properly one of legislative determination, and that a court should not lightly interfere with such determination, unless the legislature had manifestly transcended its province. See, also, Coal Co. v. Taylor, 81 Ill. 590.

In Pennsylvania v. Bonnell, 8 Phila. 534,Pennsylvania v. Bonnell, 8 Phila. 534, a law providing for the ventilation of coal mines, for speaking tubes, and the protection of cages, was held to be constitutional, and subject to strict enforcement. Pennsylvania v. Conyngham, 66 Pa. St. 99; Durant v. Coal Co., 97 Mo. 62.

But, if it be within the power of a legislature to adopt such means for the protection of the lives of its citizens, it is difficult to see why precautions may not also be adopted for the protection of their health and morals. It is as much for the interest of the state that the public health should be preserved as that life should be made secure. With this end in view, quarantine laws have been enacted in most, if not all, of the states; insane asylums, public hospitals, and institutions for the care and education of the blind established; and special measures taken for the exclusion of infected cattle, rags, and decayed fruit. In other states laws have been enacted limiting the hours during which women and children shall be employed in factories; and while their constitutionality, at least as applied to women, has been doubted in some of the states, they have been generally upheld. Thus, in the case of Com. v. Hamilton Mfg. Co., 120 Mass. 383, it was held that a statute prohibiting the employment of all persons under the age of 18, and of all women laboring in any manufacturing establishment more than 60 hours per week, violates no contract of the commonwealth implied in the granting of a charter to a manufacturing company, nor any right reserved under the constitution to any individual citizen, and may be maintained as a health or police regulation.

Upon the principles above stated, we think the act in question may be sustained as a valid exercise of the police power of the state. The enactment does not profess to limit the hours of all workmen, but merely those who are employed in underground mines, or in the smelting, reduction, or refining of ores or metals. These employments, when too long pursued, the legislature has judged to be detrimental to the health of the employés; and, so long as there are reasonable grounds for believing that this is so, its decision upon this subject cannot be reviewed by the federal courts.

While the general experience of mankind may justify us in believing that men may engage in ordinary employments more than eight hours per day without injury to their health, it does not follow that labor for the same length of time is innocuous when carried on beneath the surface of the earth, where the operative is deprived of fresh air and sunlight, and is frequently subjected to foul atmosphere and a very high temperature, or to the influence of noxious gases generated by the processes of refining or smelting.

We concur in the following observations of the supreme court of Utah in this connection:

‘The conditions with respect to health of laborers in underground mines doubtless differ from those in which they labor in smelters and other reduction works on the surface. Unquestionably, the atmosphere and other conditions in mines and reduction works differ. Poisonous gases, dust, and impalpable substances arise and float in the air in stamp mills, smelters, and other works in which ores containing metals, combined with arsenic or other poisonous elements or agencies, are treated, reduced, and refined, and there can be no doubt that prolonged effort, day after day, subject to such conditions and agencies, will produce morbid, noxious, and often deadly effects in the human system. Some organisms and systems will resist and endure such conditions and effects longer than others. It may be said that labor in such conditions must be performed. Granting that, the period of labor each day should be of a reasonable length. Twelve hours per day would be less injurious than fourteen, ten than twelve, and eight than ten. The legislature has named eight. Such a period was deemed reasonable. * * * The law in question is confined to the protection of that class of people engaged in labor in underground mines, and in smelters and other works wherein ores are reduced and refined. This law applies only to the classes subjected by their employment to the peculiar conditions and effects attending underground mining and work in smelters, and other works for the reduction and refining of ores. Therefore it is not necessary to discuss or decide whether the legislature can fix the hours of labor in other employments. Though reasonable doubts may exist as to the power of the legislature to pass a law, or as to whether the law is calculated or adapted to promote the health, safety, or comfort of the people, or to secure good order or promote the general welfare, we must resolve them in favor of the right of that department of government.’ 46 Pac. 1105.

The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employés, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce to be detrimental to their health or strength. In other words, the proprietors lay down the rules, and the laborers are practically constrained to obey them. In such cases self-interest is often an unsafe guide, and the legislature may properly interpose its authority.

It may not be improper to suggest in this connection that although the prosecution in this case was against the employer of labor, who apparently, under the statute, is the only one liable, his defense is not so much that his right to contract has been infringed upon, but that the act works a peculiar hardship to his employés, whose right to labor as long as they please is alleged to be thereby violated. The argument would certainly come with better grace and greater cogency from the latter class. But the fact that both parties are of full age, and competent to contract, does not necessarily deprive the state of the power to interfere, where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. ‘The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.’

We have no disposition to criticise the many authorities which hold that state statutes restricting the hours of labor are unconstitutional. Indeed, we are not called upon to express an opinion upon this subject. It is sufficient to say of them that they have no application to cases where the legislature had adjudged that a limitation is necessary for the preservation of the health of employés, and there are reasonable grounds for believing that such determination is supported by the facts. The question in each case is whether the legislature has adopted the statute in exercise of a reasonable discretion, or whether its action be a mere excuse for an unjust discrimination, or the oppression or spoliation of a particular class…

We are of opinion that the act in question was a valid exercise of the police power of the state, and the judgments of the supreme court of Utah are therefore affirmed.

Mr. Justice BREWER and Mr. Justice PECKHAM dissented. [no dissenting opinion is posted]

This is a writ of error to the county court of Oneida county, in the state of New York … convicting the defendant of a misdemeanor on an indictment under a statute of that state, known, by its short title, as the labor law. The section of the statute under which the indictment was found is § 110…[1]

Mr. Justice Peckham, after making the foregoing statement of the facts, delivered the opinion of the court:

The indictment, it will be seen, charges that the plaintiff in error violated the 110th section of article 8, chapter 415, of the Laws of 1897, known as the labor law of the state of New York, in that he wrongfully and unlawfully required and permitted an employee working for him to work more than sixty hours in one week. There is nothing in any of the opinions delivered in this case, either in the supreme court or the court of appeals of the state, which construes the section, in using the word 'required,' as referring to any physical force being used to obtain the labor of an employee. It is assumed that the word means nothing more than the requirement arising from voluntary contract for such labor in excess of the number of hours specified in the statute. There is no pretense in any of the opinions that the statute was intended to meet a case of involuntary labor in any form. All the opinions assume that there is no real distinction, so far as this question is concerned, between the words 'required' and 'permitted.' The mandate of the statute, that 'no employee shall be required or permitted to work,' is the substantial equivalent of an enactment that 'no employee shall contract or agree to work,' more than ten hours per day; and, as there is no provision for special emergencies, the statute is mandatory in all cases. It is not an act merely fixing the number of hours which shall constitute a legal day's work, but an absolute prohibition upon the employer permitting, under any circumstances, more than ten hours' work to be done in his establishment. The employee may desire to earn the extra money which would arise from his working more than the prescribed time, but this statute forbids the employer from permitting the employee to earn it.

The statute necessarily interferes with the right of contract between the employer and employees, concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the 14th Amendment of the Federal Constitution. Allgeyer v. Louisiana, 165 U. S.578, 41 L. ed. 832, 17 Sup. Ct. Rep. 427. Under that provision no state can deprive any person of life, liberty, or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment, unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each state in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts. Those powers, broadly stated, and without, at present, any attempt at a more specific limitation, relate to the safety, health, morals, and general welfare of the public. Both property and liberty are held on such reasonable conditions as may be imposed by the governing power of the state in the exercise of those powers, and with such conditions the 14th Amendment was not designed to interfere. The state, therefore, has power to prevent the individual from making certain kinds of contracts, and in regard to them the Federal Constitution offers no protection. Contracts in violation of a statute, either of the Federal or state government, or a contract to let one's property for immoral purposes, or to do any other unlawful act, could obtain no protection from the Federal Constitution, as coming under the liberty of person or of free contract. Therefore, when the state, by its legislature, in the assumed exercise of its police powers, has passed an act which seriously limits the right to labor or the right of contract in regard to their means of livelihood between persons who are sui juris (both employer and employee), it becomes of great importance to determine which shall prevail,--the right of the individual to labor for such time as he may choose, or the right of the state to prevent the individual from laboring, or from entering into any contract to labor, beyond a certain time prescribed by the state.

This court has recognized the existence and upheld the exercise of the police powers of the states in many cases which might fairly be considered as border ones, and it has, in the course of its determination of questions regarding the asserted invalidity of such statutes, on the ground of their violation of the rights secured by the Federal Constitution, been guided by rules of a very liberal nature, the application of which has resulted, in numerous instances, in upholding the validity of state statutes thus assailed.

Among the later cases where the state law has been upheld by this court is that of Holden v.Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383. A provision in the act of the legislature of Utah was there under consideration, the act limiting the employment of workmen in all underground mines or workings, to eight hours per day, 'except in cases of emergency, where life or property is in imminent danger.' It also limited the hours of labor in smelting and other institutions for the reduction or refining of ores or metals to eight hours per day, except in like cases of emergency. The act was held to be a valid exercise of the police powers of the state. It was held that the kind of employment, mining, smelting, etc., and the character of the employees in such kinds of labor, were such as to make it reasonable and proper for the state to interfere to prevent the employees from being constrained by the rules laid down by the proprietors in regard to labor. 'The law in question is confined to the protection of that class of people engaged in labor in underground mines, and in smelters and other works wherein ores are reduced and refined. This law applies only to the classes subjected by their employment to the peculiar conditions and effects attending underground mining and work in smelters, and other works for the reduction and refining of ores. Therefore it is not necessary to discuss or decide whether the legislature can fix the hours of labor in other employments.' * * *

The latest case decided by this court, involving the police power, is that of Jacobson v. Massachusetts, decided at this term and reported in 197 U. S. 11, 25 Sup. Ct. Rep. 358, 49 L. ed.643. It related to compulsory vaccination, and the law was held valid as a proper exercise of the police powers with reference to the public health. It was stated in the opinion that it was a case 'of an adult who, for aught that appears, was himself in perfect health and a fit subject of vaccination, and yet, while remaining in the community, refused to obey the statute and the regulation, adopted in execution of its provisions, for the protection of the public health and the public safety, confessedly endangered by the presence of a dangerous disease.' That case is also far from covering the one now before the court.

It must, of course, be conceded that there is a limit to the valid exercise of the police power by the state. There is no dispute concerning this general proposition. . . In every case that comes before this court, therefore, where legislation of this character is concerned, and where the protection of the Federal Constitution is sought, the question necessarily arises: Is this a fair, reasonable, and appropriate exercise of the police power of the state, or is it an unreasonable, unnecessary, and arbitrary interference with the right of the individual to his personal liberty, or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family? Of course the liberty of contract relating to labor includes both parties to it. The one has as much right to purchase as the other to sell labor.

This is not a question of substituting the judgment of the court for that of the legislature. If the act be within the power of the state it is valid, although the judgment of the court might be totally opposed to the enactment of such a law. But the question would still remain: Is it within the police power of the state? and that question must be answered by the court.

The question whether this act is valid as a labor law, pure and simple, may be dismissed in a few words. There is no reasonable ground for interfering with the liberty of person or the right of free contract, by determining the hours of labor, in the occupation of a baker. There is no contention that bakers as a class are not equal in intelligence and capacity to men in other trades or manual occupations, or that they are not able to assert their rights and care for themselves without the protecting arm of the state, interfering with their independence of judgment and of action. They are in no sense wards of the state. Viewed in the light of a purely labor law, with no reference whatever to the question of health, we think that a law like the one before us involves neither the safety, the morals, nor the welfare, of the public, and that the interest of the public is not in the slightest degree affected by such an act. The law must be upheld, if at all, as a law pertaining to the health of the individual engaged in the occupation of a baker. It does not affect any other portion of the public than those who are engaged in that occupation. Clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.

It is a question of which of two powers or rights shall prevail,--the power of the state to legislate or the right of the individual to liberty of person and freedom of contract. The mere assertion that the subject relates, though but in a remote degree, to the public health, does not necessarily render the enactment valid. The act must have a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor.

***

We think the limit of the police power has been reached and passed in this case. There is, in our judgment, no reasonable foundation for holding this to be necessary or appropriate as a health law to safeguard the public health, or the health of the individuals who are following the trade of a baker. If this statute be valid, and if, therefore, a proper case is made out in which to deny the right of an individual, sui juris, as employer or employee, to make contracts for the labor of the latter under the protection of the provisions of the Federal Constitution, there would seem to be no length to which legislation of this nature might not go. The case differs widely, as we have already stated, from the expressions of this court in regard to laws of this nature, as stated in Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383, and Jacobson v.Massachusetts, 197 U. S. 11, 25 Sup. Ct. Rep. 358, 49 L. ed.----.

We think that there can be no fair doubt that the trade of a baker, in and of itself, is not an unhealthy one to that degree which would authorize the legislature to interfere with the right to labor, and with the right of free contract on the part of the individual, either as employer or employee. In looking through statistics regarding all trades and occupations, it may be true that the trade of a baker does not appear to be as healthy as some other trades, and is also vastly more healthy than still others. To the common understanding the trade of a baker has never been regarded as an unhealthy one. Very likely physicians would not recommend the exercise of that or of any other trade as a remedy for ill health. Some occupations are more healthy than others, but we think there are none which might not come under the power of the legislature to supervise and control the hours of working therein, if the mere fact that the occupation is not absolutely and perfectly healthy is to confer that right upon the legislative department of the government. It might be safely affirmed that almost all occupations more or less affect the health. There must be more than the mere fact of the possible existence of some small amount of unhealthiness to warrant legislative interference with liberty. It is unfortunately true that labor, even in any department, may possibly carry with it the seeds of unhealthiness. But are we all, on that account, at the mercy of legislative majorities? A printer, a tinsmith, a locksmith, a carpenter, a cabinetmaker, a dry goods clerk, a bank's, a lawyer's, or a physician's clerk, or a clerk in almost any kind of business, would all come under the power of the legislature, on this assumption. No trade, no occupation, no mode of earning one's living, could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid, although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employees. Upon the assumption of the validity of this act under review, it is not possible to say that an act, prohibiting lawyers' or bank clerks, or others, from contracting to labor for their employers more than eight hours a day would be invalid. It might be said that it is unhealthy to work more than that number of hours in an apartment lighted by artificial light during the working hours of the day; that the occupation of the bank clerk, the lawyer's clerk, the realestate clerk, or the broker's clerk, in such offices is therefore unhealthy, and the legislature, in its paternal wisdom, must, therefore, have the right to legislate on the subject of, and to limit, the hours for such labor; and, if it exercises that power, and its validity be questioned, it is sufficient to say, it has reference to the public health; it has reference to the health of the employees condemned to labor day after day in buildings where the sun never shines; it is a health law, and therefore it is valid, and cannot be questioned by the courts.

It is also urged, pursuing the same line of argument, that it is to the interest of the state that its population should be strong and robust, and therefore any legislation which may be said to tend to make people healthy must be valid as health laws, enacted under the police power. If this be a valid argument and a justification for this kind of legislation, it follows that the protection of the Federal Constitution from undue interference with liberty of person and freedom of contract is visionary, wherever the law is sought to be justified as a valid exercise of the police power. Scarcely any law but might find shelter under such assumptions, and conduct, properly so called, as well as contract, would come under the restrictive sway of the legislature. . . The act is not, within any fair meaning of the term, a health law, but is an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts. Statutes of the nature of that under review, limiting the hours in which grown and intelligent men may labor to earn their living, are mere meddlesome interferences with the rights of the individual, and they are not saved from condemnation by the claim that they are passed in the exercise of the police power and upon the subject of the health of the individual whose rights are interfered with, unless there be some fair ground, reasonable in and of itself, to say that there is material danger to the public health, or to the health of the employees, if the hours of labor are not curtailed.

This interference on the part of the legislatures of the several states with the ordinary trades and occupations of the people seems to be on the increase.. . It is impossible for us to shut our eyes to the fact that many of the laws of this character, while passed under what is claimed to be the police power for the purpose of protecting the public health or welfare, are, in reality, passed from other motives. . .It is manifest to us that the limitation of the hours of labor as provided for in this section of the statute under which the indictment was found, and the plaintiff in error convicted, has no such direct relation to, and no such substantial effect upon, the health of the employee, as to justify us in regarding the section as really a health law. It seems to us that the real object and purpose were simply to regulate the hours of labor between the master and his employees (all being men, Sui juris), in a private business, not dangerous in any degree to morals, or in any real and substantial degree to the health of the employees. Under such circumstances the freedom of master and employee to contract with each other in relation to their employment, and in defining the same, cannot be prohibited or interfered with, without violating the Federal Constitution.

The judgment of the Court of Appeals of New York, as well as that of the Supreme Court and of the County Court of Oneida County, must be reversed and the case remanded to the County Court for further proceedings not inconsistent with this opinion.

Reversed.

Mr. Justice Holmes dissenting:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we as legislators might think as injudicious, or if you like as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by school laws, by the Postoffice, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The 14^th Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U. S. 11, . . .But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar, or novel, and even shocking, ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

Mr. Justice Harlan (with whom Mr. Justice White and Mr. Justice Day concurred) dissenting: While this court has not attempted to mark the precise boundaries of what is called the police power of the state, the existence of the power has been uniformly recognized, equally by the Federal and State courts.

All the cases agree that this power extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights.. . So, as said in Holden v. Hardy, 169 U. S. 366, 391, 42 L. ed. 780, 790, 18 Sup. Ct. Rep. 383, 388: 'This right of contract, however, is itself subject to certain limitations which the state may lawfully impose in the exercise of its police powers. While this power is inherent in all governments, it has doubtless been greatly expanded in its application during the past century, owing to an enormous increase in the number of occupations which are dangerous, or so far detrimental, to the health of employees as to demand special precautions for their well-being and protection, or the safety of adjacent property.

* * In Jacobson v. Massachusetts, 197 U. S. 11, 25 Sup. Ct. Rep. 358, 49 L. ed. ----, we said that the power of the courts to review legislative action in respect of a matter affecting the general welfare exists only 'when that which the legislature has done comes within the rule that, if a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is, beyond all question, a plain, palpable invasion of rights secured by the fundamental law.’ * * *

Let these principles be applied to the present case. By the statute in question it is provided that 'no employee shall be required, or permitted, to work in a biscuit, bread, or cake bakery, or confectionery establishment, more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employee shall work.'

It is plain that this statute was enacted in order to protect the physical well-being of those who work in bakery and confectionery establishments. It may be that the statute had its origin, in part, in the belief that employers and employees in such establishments were not upon an equal footing, and that the necessities of the latter often compelled them to submit to such exactions as unduly taxed their strength. Be this as it may, the statute must be taken as expressing the belief of the people of New York that, as a general rule, and in the case of the average man, labor in excess of sixty hours during a week in such establishments may endanger the health of those who thus labor.. .

I submit that this court will transcend its functions if it assumes to annul the statute of New York…

Professor Hirt in his treatise on the 'Diseases of the Workers' has said: 'The labor of the bakers is among the hardest and most laborious imaginable, because it has to be performed under conditions injurious to the health of those engaged in it. It is hard, very hard, work, not only because it requires a great deal of physical exertion in an overheated workshop and during unreasonably long hours, but more so because of the erratic demands of the public, compelling the baker to perform the greater part of his work at night, thus depriving him of an opportunity to enjoy the necessary rest and sleep,--a fact which is highly injurious to his health.' Another writer says: 'The constant inhaling of flour dust causes inflammation of the lungs and of the bronchial tubes. The eyes also suffer through this dust, which is responsible for the many cases of running eyes among the bakers. The long hours of toil to which all bakers are subjected produce rheumatism, cramps, and swollen legs. The intense heat in the workshops induces the workers to resort to cooling drinks, which, together with their habit of exposing the greater part of their bodies to the change in the atmosphere, is another source of a number of diseases of various organs. Nearly all bakers are palefaced and of more delicate health than the workers of other crafts, which is chiefly due to their hard work and their irregular and unnatural mode of living, whereby the power of resistance against disease is greatly diminished. The average age of a baker is below that of other workmen; they seldom live over their fiftieth year, most of them dying between the ages of forty and fifty. During periods of epidemic diseases the bakers are generally the first to succumb to the disease, and the number swept away during such periods far exceeds the number of other crafts in comparison to the men employed in the respective industries. When, in 1720, the plague visited the city of Marseilles, France, every baker in the city succumbed to the epidemic, which caused considerable excitement in the neighboring cities and resulted in measures for the sanitary protection of the bakers.'

In the Eighteenth Annual Report by the New York Bureau of Statistics of Labor it is stated that among the occupations involving exposure to conditions that interfere with nutrition is that of a baker. (p. 52.) In that Report it is also stated that, 'from a social point of view, production will be increased by any change in industrial organization which diminishes the number of idlers, paupers, and criminals. Shorter hours of work, by allowing higher standards of comfort and purer family life, promise to enhance the industrial efficiency of the wage-working class,--improved health, longer life, more content and greater  intelligence and inventiveness.' (p. 82.)

Statistics show that the average daily working time among workingmen in different countries is, in Australia, eight hours; in Great Britain, nine; in the United States, nine and three-quarters; in Denmark, nine and three- quarters; in Norway, ten; Sweden, France, and Switzerland, ten and one-half; Germany, ten and one-quarter; Belgium, Italy, and Austria, eleven; and in Russia, twelve hours.

We judicially know that the question of the number of hours during which a workman should continuously labor has been, for a long period, and is yet, a subject of serious consideration among civilized peoples, and by those having special knowledge of the laws of health. Suppose the statute prohibited labor in bakery and confectionery establishments in excess of eighteen hours each day. No one, I take it, could dispute the power of the state to enact such a statute. But the statute before us does not embrace extreme or exceptional cases. It may be said to occupy a middle ground in respect of the hours of labor. What is the true ground for the state to take between legitimate protection, by legislation, of the public health and liberty of contract is not a question easily solved, nor one in respect of which there is or can be absolute certainty. There are very few, if any, questions in political economy about which entire certainty may be predicated. One writer on relation of the state to labor has well said: 'The manner, occasion, and degree in which the state may interfere with the industrial freedom of its citizens is one of the most debatable and difficult questions of social science.' Jevons, 33.

We also judicially know that the number of hours that should constitute a day's labor in particular occupations involving the physical strength and safety of workmen has been the subject of enactments by Congress and by nearly all of the states. Many, if not most, of those enactments fix eight hours as the proper basis of a day's labor.

I do not stop to consider whether any particular view of this economic question presents the sounder theory. What the precise facts are it may be difficult to say. It is enough for the determination of this case, and it is enough for this court to know, that the question is one about which there is room for debate and for an honest difference of opinion. There are many reasons of a weighty, substantial character, based upon the experience of mankind, in support of the theory that, all things considered, more than ten hours' steady work each day, from week to week, in a bakery or confectionery establishment, may endanger the health and shorten the lives of the workmen, thereby diminishing their physical and mental capacity to serve the state and to provide for those dependent upon them.

If such reasons exist that ought to be the end of this case, for the state is not amenable to the judiciary, in respect of its legislative enactments, unless such enactments are plainly, palpably, beyond all question, inconsistent with the Constitution of the United States. We are not to presume that the state of New York has acted in bad faith. Nor can we assume that its legislature acted without due deliberation, or that it did not determine this question upon the fullest attainable information and for the common good. We cannot say that the state has acted without reason, nor ought we to proceed upon the theory that its action is a mere sham. Our duty, I submit, is to sustain the statute as not being in conflict with the Federal Constitution, for the reason--and such is an all-sufficient reason--it is not shown to be plainly and palpably inconsistent with that instrument. Let the state alone in the management of its purely domestic affairs, so long as it does not appear beyond all question that it has violated the Federal Constitution. This view necessarily results from the principle that the health and safety of the people of a state are primarily for the state to guard and protect.

** A decision that the New York statute is void under the 14th Amendment will, in my opinion, involve consequences of a far-reaching and mischievous character; for such a decision would seriously cripple the inherent power of the states to care for the lives, health, and wellbeing of their citizens. Those are matters which can be best controlled by the states. The preservation of the just powers of the states is quite as vital as the preservation of the powers of the general government. **

The judgment, in my opinion, should be affirmed.

[1] FN 1 § 110, Hours of labor in bakeries and confectionery establishments.--No employee shall be required or permitted to work in a biscuit, bread, or cake bakery or confectionery establishment more than sixty hours in any one week, or more than ten hours in any one day, unless for the purpose of making a shorter work day on the last day of the week; nor more hours in any one week than will make an average of ten hours per day for the number of days during such week in which such employee shall work.

This case concerns the constitutionality of RCW 49.46.130(2)(g), the provision exempting agricultural workers from the overtime pay requirement set out in the Washington Minimum Wage Act, ch. 49.46 RCW. At issue here is whether the trial court properly granted partial summary judgment to an affected class of agricultural workers who argued that the exemption violates article I, section 12 of our state constitution and the equal protection clause. For the following reasons, we affirm as to article I, section 12.

BACKGROUND

Jose Martinez-Cuevas and Patricia Aguilar worked for DeRuyter Brothers Dairy as milkers. DeRuyter milkers used mechanized equipment to milk close to 3,000 cows per shift, 24 hours a day, three shifts a day, 7 days a week.

In 2016, Martinez-Cuevas and Aguilar filed the present class action suit along with about 300 fellow DeRuyter dairy workers. The amended complaint claimed that DeRuyter failed to pay minimum wage to dairy workers, did not provide adequate rest and meal breaks, failed to compensate pre- and post-shift duties, and failed to pay overtime. The complaint also sought a judgment declaring RCW 49.46.130(2)(g)^[1] unconstitutional.

Martinez-Cuevas and Aguilar moved for summary judgment. They alleged that class members generally worked over 40 hours per week without receiving overtime pay and labored in dangerous conditions. The workers claimed that the agricultural industry was powerful while the agricultural workers were poor, and the exemption was racially motivated to impact the Latinx population, which constitutes nearly 100 percent of Washington dairy workers. Consequently, the workers argued, the agricultural exemption for overtime pay violates article I, section 12 of the Washington State Constitution because it grants a privilege or immunity to the agricultural industry pursuant to a law implicating a fundamental right of state citizenship—the right of all workers in dangerous industries to receive workplace health and safety protections.

The workers further argued that RCW 49.46.130(2)(g) violates the equal protection guaranty of the Washington Constitution. Because the Minimum Wage Act was based on the Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-219, which allegedly used race as the basis for exempting farmworkers from overtime compensation, the workers claim that the Minimum Wage Act incorporated the racist motivations underlying the federal statute. These motivations are unrelated to protecting the health and safety of workers; because health and safety protections are a fundamental right under article II, section 35, the workers argue that strict scrutiny applies and that RCW 49.46.130(2)(g) fails this and any other level of scrutiny.^[2]

DeRuyter and the intervenors filed cross motions for summary judgment. They argued that RCW 49.46.130(2)(g) implicates no fundamental right and does not benefit one class over another or violate equal protection. DeRuyter and intervenors disputed the dairy workers’ evidence regarding racial bias against Latinx, arguing the agricultural exemption could not be motivated by racial bias because when it was originally passed in 1959, most agricultural workers were white.

After oral argument, the trial court issued a letter order granting in part and denying in part the workers’ motion for summary judgment. Eschewing the contention that article II, section 35 creates a fundamental right of state citizenship to employee protection laws, the court instead found in favor of the workers based on a different fundamental right—the right to work and earn a wage. The trial court noted that the right to work “treats a class of workers in a significantly different fashion than other wage earners engaged in the business of selling their labor.” CP at 1213-14.

The court reserved for trial the question of whether the legislature had a reasonable ground for providing a privilege or immunity to the agricultural industry in the form of the overtime exemption and did not rule on the constitutionality of RCW 49.46.130(2). As a result, the court denied summary judgment for DeRuyter and the intervenors, denied motions to strike portions of the workers’ briefing, and certified the summary judgment order for discretionary review. Martinez-Cuevas and Aguilar moved for discretionary review here, which we granted.

ANALYSIS

At issue is whether RCW 49.46.130(2)(g) violates the privileges or immunities clause or equal protection, article I, section 12 of the Washington State Constitution. We review the constitutionality of a statute de novo. As with a court’s construction of statutes, interpreting the meaning of constitutional provisions begins with the plain language of the text. …

Article I, section 12

“No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” WASH. CONST. art. I, § 12. Passed during a period of distrust toward laws that served special interests, the purpose of article I, section 12 is to limit the sort of favoritism that ran rampant during the territorial period. 

Washington courts have at times interpreted article I, section 12 consistent with the federal equal protection clause, but we have also recognized that the text and aims of article I, section 12 are different… Historically, this court has read the antifavoritism framework of article I, section 12 as limited to fundamental rights of state citizenship. These fundamental rights, according to the dissent, were recognized in Corfield v. Coryell as Lockean “natural rights.” 6 F. Cas. 546, 551-52 (C.C.E.D. Pa. 1823) (No. 3,230).

[discussion of 14th Amendment omitted here]

Where the Fourteenth Amendment to the United States Constitution was generally intended to prevent discrimination against disfavored individuals or groups, article I, section 12 was intended to prevent favoritism and special treatment for a few to the disadvantage of others. … The independent analysis applies only where a law implicates a “privilege or immunity” as defined in our early cases distinguishing the fundamental rights of state citizenship. If the answer is yes, then we ask whether there is a “reasonable ground” for granting that privilege or immunity. 

Benefits triggering this analysis are only those implicating fundamental rights of state citizenship.

The Washington Constitution protects employees working in certain especially dangerous industries. Article II, section 35 states:

The legislature shall pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health; and fix pains and penalties for the enforcement of the same.

(Emphasis added.) Martinez-Cuevas and Aguilar argue that article II, section 35 establishes the fundamental right to statutory protection for citizens working in extremely dangerous conditions. DeRuyter counters that the provision provides legislative discretion to set penalties for worker protection and, thus, creates no fundamental right. Yet article II, section 35 states that the legislature “shall” pass necessary laws, and the word “shall” is “presumptively imperative and operates to create a duty, rather than to confer discretion.” In re Parental Rights to K.J.B., 187 Wash.2d 592, 601, 387 P.3d 1072 (2017) (citing State v. Bartholomew, 104 Wash.2d 844, 848, 710 P.2d 196 (1985)). No contrary intent appears in the provision, thus article II, section 35 requires the legislature to pass appropriate laws for the protection of workers. The discretion to fix penalties concerns the way in which a law is made to operate; it has no bearing on the requirement to enact the law in the first instance. See Afoa v. Port of Seattle, 176 Wash.2d 460, 470, 296 P.3d 800 (2013) (stating that article II, section 35 “requires the legislature” to enact laws protecting employees working in dangerous conditions). Article II, section 35 mandates legislative action and constitutes a fundamental right of Washington workers to health and safety protection.

DeRuyter milkers constitute the type of workers protected by article II, section 35 because they worked long hours in conditions dangerous to life and deleterious to their health. DeRuyter milking facilities were operated around-the-clock in order to service 3,000 cows. DeRuyter’s employment policy required milkers to stay until all cows were milked and to help clean the barn, unless excused early. Martinez-Cuevas, Aguilar, and the class as a whole worked over 40 hours per week over 80 percent of the time they were employed by DeRuyter.

Moreover, dairy work is some of the most hazardous in the United States. In 2015, the injury rate for Washington’s dairy industry was 121 percent higher than all other state industries combined and 19 percent higher than the entire agricultural sector. Milkers are exposed to physical strains, respiratory hazards, toxic chemicals, and risk of contracting diseases and injuries from animals; this exposure has led to cancer, respiratory disease, and neurological conditions. Martinez-Cuevas and Aguilar both suffered injuries while working at DeRuyter’s dairy farm. Overtime work is particularly injurious, resulting in increased injuries, illness, and mortality. CP at 314, 318 (overtime results in 61 percent higher injury hazard rate). DeRuyter does not dispute that the dairy industry is dangerous to the health of dairy workers. See CP at 750-55, 909 (only material fact in dispute was allegedly racist history of agricultural exemption); Opening Br. of Resp’ts/Cross-Appellants at 7.

The extremely dangerous nature of dairy work entitles dairy workers to the statutory protection set out in article II, section 35. See Macias v. Dep’t of Labor & Indus., 100 Wash.2d 263, 274, 668 P.2d 1278 (1983) (noting that farmworkers engage in “an extremely dangerous occupation”).

The legislature enacted this very protection in the form of the Minimum Wage Act. Necessary to safeguard the health, safety, and general welfare of Washington citizens, the act establishes a minimum wage and provides overtime protections. RCW 49.46.005(1); LAWS OF 1959, ch. 294, § 3. The act’s general rule requires an employer to pay its employees for time worked in excess of 40 hours per week, subject to certain exemptions. Though farmworkers were eventually included in the minimum wage provision, LAWS OF 1989, ch. 1, § 1, they continued to be exempt from RCW 49.46.130’s overtime compensation requirement.

Article II, section 35 creates the fundamental right of state citizenship to laws such as the Minimum Wage Act that protect the health and safety of dairy workers.^[3] Our article I, section 12 case law bolsters this conclusion. We have expressly identified fundamental rights of state citizenship, but we have never characterized this list as comprehensive or limited to only those enumerated rights. See Vance, 29 Wash. at 458, 70 P. 34. Vance recognizes the fundamental right to “enforce other personal rights,” id., and the phrase “privileges and immunities” has been historically understood to encompass a broad range of rights such as “protection by the government.” Corfield, 6 F. Cas. at 551, quoted in Madison v. State, 161 Wash.2d 85, 119, 163 P.3d 757 (2007) (J.M. Johnson, J., concurring). The right to statutory protection for health and safety pursuant to article II, section 35 contemplates the fundamental “personal rights” of Vance and “[p]rotection by the government” in Corfield.

The Minimum Wage Act excludes agricultural workers from the definition of employee and results in an exemption from the act’s overtime requirement. RCW 49.46.130(1), (2)(g). RCW 49.46.130(2)(g)’s exemption grants dairy farmers a privilege or immunity from paying otherwise mandatory overtime pay. RCW 49.46.130(1).

…[W]e conclude that article II, section 35 provides the dairy workers the fundamental right to health and safety protections of the Minimum Wage Act. We therefore agree with the trial court that RCW 49.46.130(2)(g) implicates a fundamental right and grants a privilege or immunity, satisfying the first prong of the privileges analysis.

The legislature lacked reasonable grounds for granting the overtime exemption to agricultural employers

The article I, section 12 reasonable ground test is more exacting than rational basis review. Under the reasonable ground test, a court will not hypothesize facts to justify a legislative distinction. Rather, the court will scrutinize the legislative distinction to determine whether it in fact serves the legislature’s stated goal. Speculation may suffice under rational basis review, but article I, section 12’s reasonable ground analysis does not allow it. If we are to uphold RCW 49.46.130(2)(g)’s overtime exemption, the provision must be justified in fact and theory…

DeRuyter asserts that lawmakers found the seasonal nature of farming and changes in weather, crop growth, commodity market prices, and husbandry rendered agricultural work ill suited to the 40-hour workweek and overtime pay under the Minimum Wage Act. The record, however, does not support these assertions.

First, while milking may slow in summer months, it occurs year-round. Indeed DeRuyter dairy workers milk thousands of cows per shift, 24 hours a day, 7 days a week. CP at 845, 849 (audit noting that DeRuyter employed only two seasonal workers). This constant, factory-like work is unlike that of piece-rate seasonal workers. Further, other industries employing seasonal workers, such as retail, are not exempt from the overtime protections. Next, the legislative history offered by DeRuyter does not reference seasonality or the variations of agricultural work as considered during the passage of the Minimum Wage Act. The history instead references unemployment insurance for agricultural workers, the consequences of increased operating costs, and legislative changes to the Washington Industrial Safety and Health Act of 1973 (WISHA), ch. 49.17 RCW. DeRuyter provides no link between WISHA and the Minimum Wage Act exemption. The history of unrelated issues and statutes offers little in the way of legislative intent.

DeRuyter does not offer, and we have not found, any convincing legislative history that illustrates a reasonable ground for granting the challenged overtime pay exemption. The stated purpose of the Minimum Wage Act is to protect the health and safety of Washington workers, as required by article II, section 35. See RCW 49.46.005(1). This purpose underlies the entirety of the act, including the overtime pay protections and exemptions. In the face of this clear purpose and constitutionally mandated protection, the exemption in RCW 49.46.130(2)(g) is an impermissible grant of a privilege or immunity under article I, section 12 of Washington’s constitution.

[in a footnote, the court declined to address the workers’ constitutional claim of equal protection.]

CONCLUSION

RCW 49.46.130(2)(g) violates article I, section 12 of the Washington State Constitution as applied to dairy workers. We affirm and remand to the trial court for further proceedings consistent with this opinion.

González, J. (concurring)

Farmworkers across our state and our nation labor for subpoverty wages under dangerous working conditions to supply food for our tables. But since the 1930s, they have been excluded from many labor protections guaranteed to virtually all workers in other industries. Today, farmworkers continue to be excluded from the overtime protection of Washington’s Minimum Wage Act (MWA). This exclusion is unconstitutional on its face because it violates our state constitution’s promise of equality under the law. See WASH. CONST. art. I, § 12. The exemption denies an important right to a vulnerable class, and defendants have not demonstrated it serves important governmental objectives. The plaintiffs are entitled to summary judgment.

Our state constitution provides that “[n]o law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” WASH. CONST. art. I, § 12. This provision prohibits both special interest favoritism and discrimination. … If a law disadvantages a suspect class or infringes on a fundamental right, we apply strict scrutiny and require the State to demonstrate its classification has been narrowly tailored to serve a compelling governmental interest.  We also apply a form of heightened scrutiny to laws that single out politically powerless and marginalized groups for differential treatment with respect to important rights. Under this intermediate scrutiny standard, we uphold the classification only if it furthers an important governmental objective.

The statutory exclusion of farmworkers from overtime pay deserves at least intermediate scrutiny. Farmworkers labor in arduous and dangerous conditions. Farmworkers are exposed to pesticides, use hazardous machinery, and work long hours in extreme heat and cold. Eric Hansen, MD, and Martin Donohoe, MD, Health Issues of Migrant and Seasonal Farmworkers, 14 J. HEALTH CARE FOR POOR & UNDERSERVED, 153, 155-57 (2003). Farmworkers are at risk of heat-related illness, bacterial and parasitic infections, toxic chemical injuries, certain types of cancer, and chronic musculoskeletal problems. Id. at 157-59. Yet, since the 1930s, lawmakers have systematically excluded them from health and safety protections, including overtime pay, afforded to workers in other dangerous industries.

When federal lawmakers passed major labor reforms during the New Deal, they excluded farmworkers across the board. See Juan F. Perea, The Echoes of Slavery: Recognizing the Racist Origins of the Agricultural and Domestic Worker Exclusion from the National Labor Relations Act, 72 OHIO ST. L.J. 95, 104 (2011). Farmworkers were excluded from the organizing and collective bargaining rights secured in the National Labor Relations Act of 1935 (NLRA), 29 U.S.C. §§ 151-169; from the minimum wage protections in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 203; and from old-age benefits and unemployment insurance in the Social Security Act of 1935, 42 U.S.C. ch.7. Id. at 109-124. Racism directly influenced these exclusionary policies. Id. at 104. Plantation agriculture, which dominated the southern economy, depended on the exploitation of a black labor force. Id.; CP at 934-39 (MARC LINDER, MIGRANT WORKERS AND MINIMUM WAGES: REGULATING THE EXPLOITATION OF AGRICULTURAL LABOR IN THE UNITED STATES 8-13 (1992)). To obtain the support of Southern Democrats, proponents of President Roosevelt’s New Deal agenda made compromises to preserve a quasi-captive, nonwhite labor force and perpetuate the racial hierarchy in the South by excluding agricultural workers. Perea, supra, at 98-99; CP at 939.

Farmworkers were also excluded when lawmakers enacted additional worker protections in the early 1970s. In 1971, Congress created the Occupational Safety and Health Administration (OSHA) to set and enforce workplace safety and health standards. Despite pesticides amounting to a major occupational hazard for farmworkers, Congress did not give OSHA the authority to regulate farmworker pesticide exposure. See Alexis Guild and Iris Figueroa, The Neighbors Who Feed Us: Farmworkers and Government Policy—Challenges and Solutions, 13 HARV. L. & POL’Y REV. 157, 178 (2018). Instead, Congress gave exclusive regulatory power to the United States Environmental Protection Agency (EPA), which, unlike OSHA, must conduct a cost-benefit analysis—taking into account interests other than worker safety—before passing workplace pesticide standards. Id.; Keith Cunningham-Parmeter, A Poisoned Field: Farmworkers, Pesticide Exposure, and Tort Recovery in an Era of Regulatory Failure, 28 N.Y.U. REV. L. & SOC. CHANGE 431, 448-52 (2004).

When adopting and adapting parallel state programs to protect workers, many state lawmakers continued to exclude farmworkers from minimum wage, overtime, and workers’ compensation laws. When the Washington legislature enacted the MWA in 1959, it looked to the FLSA and imported wholesale the exclusion of farmworkers from minimum wage and overtime protections. LAWS OF 1959, ch. 294, § 3. It was not until 1989, and only through the initiative process, that farmworkers gained coverage under the MWA’s minimum wage provision. LAWS OF 1989, ch. 1, § 1. Washington’s workers’ compensation law also excluded all farmworkers when it was originally enacted, and then it failed to cover farmworkers on equal terms with other workers until this court held that an exclusion for some seasonal farmworkers was unconstitutional. Macias, 100 Wash.2d at 264, 668 P.2d 1278.

Disparate treatment of farmworkers under labor laws endures. Farmworkers still rely on the EPA, rather than OSHA, for pesticide safety standards. Farmworkers remain excluded from the NLRA’s protections for organizing and bargaining, and only about two percent of farmworkers belong to unions. While the FLSA’s minimum wage requirements now apply to most agricultural workers, farmworkers are still excluded from the right to overtime pay, workers on small farms are not entitled to receive minimum wage, and children as young as 12 are legally allowed to work in fields.

Poverty, fear of deportation, and barriers to health care and education persist in farmworker communities. Farmworkers remain among the poorest workers in the nation and often live in substandard housing conditions. Almost three-quarters of farmworkers in the country are immigrants, the overwhelming majority from Mexico.  Almost three-quarters of farmworkers are most comfortable speaking in Spanish, and 43 percent speak little or no English at all. In Washington, 99 percent of farmworkers are Latino, and more than three-quarters of farmworkers do not read or write in English.  Very few farmworkers have health insurance or adequate access to medical care. The average farmworker has completed an eighth-grade education. Farmworkers experience shorter life expectancy, experience higher incidences of disease and disability, and experience high rates of sexual harassment.  Farmworkers remain some of the most impoverished and socially excluded members of our society. It is no coincidence the law continues to disfavor them.

Subjugated to second-class worker status, farmworkers are precisely the type of politically powerless minority whose interests are a central concern of equal protection…

The exclusion of farmworkers from overtime pay deprives them of an important health and safety protection that is afforded to other workers. The framers of our state constitution directed the legislature to enact health and safety protections for workers in dangerous industries. See WASH. CONST. art. II, § 35. The legislature did so when it enacted minimum wage and overtime requirements to protect workers from the harmful effects of low wages and long hours. Farmworkers are no less in need of this protection than workers in other industries.

The exclusion of farmworkers can be justified only if it furthers an important governmental interest. DeRuyter argues the exemption, by sparing agricultural employers from the costs of overtime, furthers the government’s interest in supporting the agricultural industry. But the desire to spare employers in one industry from costs cannot, by itself, justify excluding some workers from the health and safety protections afforded to others. If it could, workers’ equal protection rights would be subject to unrestricted legislative license, and equal protection would be an empty promise.

DeRuyter’s appeal to the general welfare also does not save the law. DeRuyter contends the prosperity of the agricultural industry is vital to the welfare of Washingtonians. But the promise of equal protection does not tolerate laws that aim to advance the general welfare at the expense of a permanent underclass. … Excluding farmworkers from health and safety protections cannot be justified by an assertion that the agricultural industry, and society’s general welfare, depends on a caste system that is repugnant to our nation’s best self.

CONCLUSION

Today we face a global pandemic, and while many others stay home, farmworkers continue to go to work because they are recognized as essential. But they go to work on unequal terms. They deserve better.

STEPHENS, C.J. (dissenting)

This case concerns a statutory benefit granted only at the discretion of the legislature: overtime pay. A class of affected agricultural workers argue that the provision of Washington’s Minimum Wage Act (MWA), ch. 49.46 RCW, exempting them from overtime pay violates article I, section 12 of the Washington Constitution on both legislative favoritism grounds and equal protection grounds. The majority declares the exemption unconstitutional, despite the fact that entitlement to overtime pay is not a fundamental right implicating our state privileges and immunities clause. Nor does the legislative policy decision to exempt agricultural workers, among other worker groups, from overtime protections evidence discrimination in violation of the equal protection clause. …I respectfully dissent.

Article I, section 12 provides, “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” …Under the antifavoritism framework, the terms “privileges” and “immunities” “pertain alone to those fundamental rights which belong to the citizens of the state by reason of such citizenship.” This constitutional limitation recognizes the legislature “may[ freely exercise its police power] to promote the public welfare and safety and to safeguard life, health, property and morals, regulate businesses, professions and callings.” 

…

Article II, section 35 provides, “PROTECTION OF EMPLOYEES. The legislature shall pass necessary laws for the protection of persons working in mines, factories and other employments dangerous to life or deleterious to health; and fix pains and penalties for the enforcement of the same.” This provision is not self-executing and creates no fundamental right.

Article II, section 35’s plain language gives the legislature broad discretion to enact (amend or repeal) “necessary laws.” It likewise gives the legislature discretion to “fix pains and penalties for the enforcement of the same.”  But article II, section 35 does not grant workers in dangerous jobs particular rights under any particular statutory enactment. The legislature has plenary power to determine what “laws” are “necessary” to protect people working in these jobs.

In 1973, “in keeping with the mandates of [a]rticle II, section 35 of the state Constitution,” the legislature enacted the Washington Industrial Safety and Health Act (WISHA), ch. 49.17 RCW. RCW 49.17.010; LAWS OF 1973, ch. 80 § 1. WISHA aims to “to assure, insofar as may reasonably be possible, safe and healthful working conditions for every man and woman working in the state of Washington, [and] the legislature in the exercise of its police power ... declares its purpose ... to create, maintain, continue, and enhance the industrial safety and health program of the state.” RCW 49.17.010. Consistent with its statutory framework, the Washington Department of Labor and Industries has promulgated many health and safety regulations specifically related to farmworkers. See generally ch. 296-307 WAC (safety standards for agriculture). The legislature thus met its article II, section 35 duty to “pass necessary laws” with this enactment. See generally WASH. CONST. art. II, § 35; ch. 49.17 RCW. But its actions do not elevate specific statutory measures to constitutional rights.

Our case law confirms article II, section 35 does not create a fundamental right of state citizenship given legislative discretion on worker health and safety law. … Under the umbrella of its police power, the legislature has plenary power to enact, amend, or repeal laws it considers necessary (or unnecessary) to protect employees in jobs dangerous to life or harmful to health. If the legislature repealed the overtime statute during the next legislative session, no Washington citizen would have a personal or private common-law right to insist on overtime pay—absent an employment contract with a term promising the same.

Despite our views on the benefits of overtime pay, we must recognize there is no constitutional mandate, as the overtime statute “does not involve a fundamental attribute of an individual’s national or state citizenship” under article I, section 12…The history of article II, section 35 provides some further insight:

[Article II, section 35] was taken from the constitutions of Colorado and Illinois. As a corollary to restrictions on corporations, particularly in Article XII, the convention sought to provide for the protection of labor. During the time preceding the convention there had been violent disturbances at mining camps in Roslyn and Newcastle when mining companies hired armed guards to attack striking miners. The working conditions at some industrial concerns in the territory were notoriously dangerous, and organized labor lobbied for a constitutional provision requiring the legislature to enact health and safety laws.

ROBERT F. UTTER & HUGH D. SPITZER, THE WASHINGTON STATE CONSTITUTION 82 (2d ed. 2013) (citations omitted). The framers’ historical objective of protecting employee health and safety thus reflects the establishment of a constitutional safeguard in the form of a public right to laws protecting the same. This does not amount to a privately enforceable fundamental right to such laws.

Still more, the structure of the constitution shows that article II, section 35 does not create the sort of personal or private right that existed at common law. Article I—the declaration of rights—contains several examples of personal or private fundamental civil rights and liberties citizens enjoyed at common law (e.g., the right to life, liberty and property, due process, protection from discrimination, the right to petition and assembly, and the freedom of speech and religion). Article II, in contrast, governs the legislative department, recognizing, guiding, or restraining its plenary power to enact laws. The framers’ placement of the directive for employee protection legislation in article II, rather than article I, provides added evidence of the intent to grant the legislature full discretion over worker health and safety laws. And we have not considered statutory benefits granted only at the discretion of the legislature to be fundamental. Indeed, to do so would constitutionalize all protective legislation and wrongly suggest that anytime the legislature limits the scope of protective legislation in employment, it implicates article I, section 12.^[4]

 …

In sum, I would hold that the agricultural exemption from overtime pay does not confer a privilege or immunity under article I, section 12 because no fundamental right is at issue. Article II, section 35 does not embody a fundamental right, as the legislature may determine what laws it deems “necessary” to protect workers in dangerous employments… There is no need to consider whether the legislative exemption rests on reasonable grounds, as it does not implicate the privileges and immunities clause at all.

The workers also contend agricultural exemption violates the state equal protection clause under any level of scrutiny, though they urge us to apply strict scrutiny. The concurrence would accept the workers’ argument, applying intermediate scrutiny. I believe it is unsustainable under our precedent. I would hold rational basis review applies here and conclude that the statutory overtime exemption does not violate article I, section 12 on state equal protection grounds.

I recognize it is of no solace to these workers that “Washington has a ‘long and proud history of being a pioneer in the protection of employee rights.’ ” Hill v. Xerox Bus. Servs., LLC, 191 Wash.2d 751, 760, 426 P.3d 703 (2018) (internal quotation marks omitted) (quoting Int’l Ass’n of Fire Fighters, Local 46 v. City of Everett, 146 Wash.2d 29, 35, 42 P.3d 1265 (2002)). We were “one of the first states to enact a statewide minimum wage for women and minors.” Id. Despite our progressive history in the context of employee rights, we have upheld legislative distinctions between different classes of workers.

Equal protection requires similarly situated individuals receive similar treatment under the law. See U.S. CONST. amend. XIV, § 1; WASH. CONST. art. I, § 12. It does not require “complete equality among individuals or classes of individuals.” Harris v. Charles, 171 Wash.2d 455, 462, 256 P.3d 328 (2011). To determine whether a law violates the state or federal equal protection clause, we use one of three tests: strict scrutiny, intermediate scrutiny, or rational basis review. Id. (quoting State v. Harner, 153 Wash.2d 228, 235-36, 103 P.3d 738 (2004)) “[T]he appropriate level of scrutiny depends on the nature of the classification or rights involved.” Am. Legion Post No.149, 164 Wash.2d at 608, 192 P.3d 306.

… The workers argue the agricultural exemption from the statutory benefit of overtime pay impermissibly discriminates based on race and is therefore subject to strict scrutiny. Recognizing the exemption is facially neutral, they point us to Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977) (“Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face.”). They urge us to conclude that racial bias motivated the legislature’s enactment of the agricultural exemption and that there is a clear pattern of discrimination against Latinx farmworkers unexplainable on grounds other than race. To support their argument, the workers offer evidence showing the agricultural exemption currently has a disparate impact on Latinx farmworkers, evidence disputed by DeRuyter.

I believe our decision in Macias v. Department of Labor & Industries, 100 Wash.2d 263, 668 P.2d 1278 (1983) controls. There, several migrant Latinx farmworkers challenged the constitutionality of their exclusion from workers’ compensation benefits on equal protection grounds. Relevant here, they argued that the statute impermissibly discriminated based on race thus triggering strict scrutiny. They introduced statistical evidence of disparate impact, alleging 73 percent of the individuals affected were Latinx, but no evidence of purposeful discrimination or intent. This court rejected their claim. Relying on Washington v. Davis, 426 U.S. 229, 96 S. Ct. 2040, 48 L. Ed. 2d 597 (1976), we held “statistics alone will not trigger strict scrutiny, unless there is some evidence of purposeful discrimination or intent.” Macias, 100 Wash.2d at 270, 668 P.2d 1278.

The workers here try to distinguish Macias, arguing this case exemplifies a “dramatic impact” warranting strict scrutiny because they allege almost 100 percent of Washington farmworkers are now Latinx. In Macias, 100 Wash.2d at 270-71, 668 P.2d 1278, we distinguished two cases involving the kind of “dramatic impact” required to warrant strict scrutiny: Yick Wo v. Hopkins, 118 U.S. 356, 6 S. Ct. 1064, 30 L. Ed. 220 (1886) and Gomillion v. Lightfoot, 364 U.S. 339, 81 S. Ct. 125, 5 L. Ed. 2d 110 (1960). But these cases do not support the workers’ claim here.

[discussion of these two cases omitted]

Based on the record before us, this case does not present a situation as stark as Yick Wo or Gomillion. These cases did not merely involve statutory schemes with a “dramatic impact” on a racial minority—they reeked of racial animus. …Even accepting the workers’ statistics as correct (though on summary judgment we must view the evidence in the light most favorable to DeRuyter), there is no evidence showing the Washington legislature had any discriminatory purpose or intent in enacting the overtime exemption. The workers argue that racial animus drove Congress to include the agricultural exemption in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. §§ 201-219, and Washington law is based on FLSA. But this historical link provides insufficient grounds to conclude (as a matter of law, no less) that our legislature enacted the MWA’s agricultural exemption with discriminatory purpose or intent. Although the evidence presented appears to show the demographics of agricultural workers in Washington have changed since the MWA’s enactment, the parties’ dispute this evidence and genuine issues of material fact on this question exist. That said, we need not accept or reject the evidence showing a disparate statistical impact because it is constitutionally insufficient..

As a fallback position, the workers argue we should apply intermediate scrutiny on the premise that overtime pay is an important right and the workers are a semisuspect class. … The application of intermediate scrutiny in the concurrence rests on identifying agricultural workers as a vulnerable class. This analysis would cause a tectonic shift in federal and state equal protection jurisprudence. The equal protection doctrine has long recognized that governments can make incremental decisions about social and economic policy “one step at a time.”  Williamson, 348 U.S. at 489, 75 S.Ct. 461. Showing that farmworkers generally, or the class of dairy workers here, have been treated unfavorably in protective legislation does not make them a vulnerable class for purposes of heightened equal protection scrutiny.

Because overtime statutes constitute economic legislation, traditional rational basis review applies. Our equal protection inquiry therefore begins with the presumption that the legislature’s decision to enact social or economic protective legislation subject to certain exemptions is rational.  

First, the legislature exempted all agricultural workers from overtime pay and thus treated these similarly situated workers alike. Second, agricultural work, which is often seasonal or requires focused efforts to harvest products quickly, provides a rational basis for treating agricultural workers differently from those outside the class. Third, the legislature enacted ch. 49.46 RCW, which governs minimum wage requirements and labor standards, “for the purpose of protecting the immediate and future health, safety and welfare of the people of this state.” RCW 49.46.005(1).^[5] “[T]he legislature endeavors ... to establish a minimum wage for employees of this state to encourage employment opportunities within the state.” Id. We must therefore consider that the legislation serves policy concerns beyond direct employee protection and may limit some protections to promote other public welfare values.

Applying rational basis review, the legislature could have rationally concluded that lower operation costs may decrease the overall cost of agricultural commodities and these benefits may be passed on to Washington consumers.⁹ The legislature’s police power provides broad discretionary authority over this kind of social and economic policy.  Because the agricultural exemption is rationally related to legitimate governmental policy, I would hold RCW 49.46.130(2)(g) does not violate article I, section 12 on state equal protection grounds. 

[1] RCW 49.46.130(1) requires employers to compensate employees for work in excess of 40 hours. Subsection (2)(g) exempts certain employees, such as individuals employed on farms, from receiving this compensation.

[2] RCW 49.46.130(2)(g) grants agricultural employers a privilege or immunity from providing overtime protections guaranteed to dairy workers under article II, section 35

[3] The dissent concludes that dairy workers have no fundamental rights in this case because the statutory protection for employees in dangerous conditions is a discretionary exercise of the legislature’s police power. This conclusion, however, ignores the critical fact that our state constitution expressly protects workers in such conditions under article II, section 35. Had the authors of our constitution omitted this provision, the legislature would still have the authority to enact worker protections under its police power. Thus, to agree with the dissent renders article II, section 35 meaningless. Under the provision, the legislature is required to enact statutory protections for workers in dangerous and deleterious conditions. Far from granting broad discretion, article II, section 35 imposes a duty. The legislature acted to meet this duty by passing the Minimum Wage Act. Once the legislature elected to offer overtime pay to all Washington workers, the exclusion of dairy workers from overtime pay is a violation of article I, section 12 unless reasonable grounds exist.

[4] Note 7 in text: The majority seems to conclude that whenever the legislature passes legislation that has the effect of protecting employees in jobs dangerous to life or harmful to health, article II, section 35 automatically entitles workers to such protections. See majority at –––– n.3. But in doing so, the majority renders critical constitutional language meaningless. The majority is correct that article II, section 35 imposes a duty on the legislature to “pass necessary laws” to protect employees in such jobs. By implication, the legislature determined overtime pay is not “necessary” to protect the health and safety of agricultural workers. Article II, section 35 gives the legislature broad discretion to make these types of policy determinations—it does not give this court discretion to determine which laws are “necessary.” “ ‘We are not a super legislature.’ ” Davison v. State, ––– Wash.2d ––––, 466 P.3d 231, 237 (2020), https://www.courts.wa.gov/opinions/pdf/967661.pdf (quoting Aetna Life Ins. Co. v. Wash. Life & Disability Ins. Guar. Ass’n, 83 Wash.2d 523, 528, 520 P.2d 162 (1974)).

[5] [note 8 in text] “Since the enactment of Washington’s original minimum wage act, the legislature and the people have repeatedly amended [chapter 49.46 RCW] to establish and enforce modern fair labor standards, including periodically updating ... the right to overtime pay.” RCW 49.46.005(2).

The risks associated with workplace hazards have been recognized for centuries. There is evidence in the Greek and Roman periods that attention was given to various risks.  As early as 1713, Italian physician Bernardino Ramazzini, sometimes called "the father of occupational medicine," published De Morbis Artificum Diatriba (The Diseases of Workmen), carefully documenting the perils of unhealthy workplaces.  

Regulatory efforts often have come in the wake of written exposes or industrial disasters. The focus on workplace hazards grew exponentially as the Industrial Revolution brought increasing numbers of people into hazardous factories and mines. Legislative interest in the area of industrial safety began at the state level, but often followed written exposes or industrial disasters. In 1877, Massachusetts passed a work safety statute requiring the guarding of hazardous parts of machinery, such as shafts and gears. By 1890, 21 states had passed some kind of occupational safety and health law. By 1920, nearly every state had an industrial safety law and a law providing industrial accident insurance to injured workers.

Unfortunately, these laws were weak and provided neither significant protection from hazards nor adequate compensation for work injuries. Workers were injured and killed in large numbers, and injured workers had no job protections if they became disabled

At the turn of the twentieth century, the human toll exacted by industry began to provoke a great public outcry that soon stirred the national conscience. Work-accident statistics told a grim story.  As one writer put it in 1912:

As many men are killed each fortnight in the ordinary course of work as went down with the “Titanic.” This single spectacular catastrophe appalled the civilized world and compelled government action in two hemispheres; while the ceaseless, day-by-day destruction of the industrial juggernaut excites so little attention that few states take the trouble to record the deaths and injuries.

The year 1907 was particularly tragic. There were 3,242 fatalities in the anthracite and bituminous coal mines. On December 6, 361 men were killed in a mine explosion in Monongah, West Virginia. Thirteen days later, a mine explosion in Jacobs Creek, Pennsylvania, claimed 239 lives. In 1907, 4,534 railroad workers were killed on the job.

Crystal Eastman’s book, Work-Accidents and the Law, published in 1910, became a best seller and helped fuel popular indignation….Statistics told only part of the story. Knowledge about industrial diseases, for example, was scant and often rudimentary. (“Printers die fast and die young” was a conclusion of one early study of health problems of members of the International Typographical Union of North America.) Also, it was a matter of common knowledge that a substantial number of work injuries and deaths were unreported. Who could forget this passage from Upton Sinclair’s classic, The Jungle, a work of fiction, yet totally consonant with the facts of the day:

It was said by the boss at Durham’s that he had gotten his week’s money and left there. That might not be true, of course, for sometimes they would say that when a man had been killed, it was the easiest way out for all concerned. When, for instance, a man had fallen into one of the rendering tanks and had been made into pure leaf lard and peerless fertilizer, there was no use letting the fact out and making his family unhappy.

The first decade of the twentieth century was the golden age of muckraking in American magazines, and a talented corps of writers went to work describing in the most vivid terms the unsafe, unhealthy conditions of the nation’s factories and workshops. They particularly deplored the financial hardship suffered by disabled workers and their families… The reason injured workers had to deplete their own meager savings and even turn to public relief to defray the costs of accidents was that the legal system virtually insulated employers from liability for work injuries and deaths…

Despite a lack of substantial preventive legislation, in the early 1900s the states made the first efforts to relieve the hardship of industrial accidents from individual workers and their families. Many states enacted employer liability laws that modified the common law and made it easier for injured employees to recover from their employers. Before these laws, the doctrines of contributory negligence, assumption of risk, and fellow servant had often prevented employees from recovering for their injuries. By 1921, 46 states had some form of workers' compensation law.

At the federal level there was little meaningful activity during this period. In 1865, the first bill was submitted to create a Federal Mining Bureau, although it was not until 1891 that the first coal mine legislation was enacted. In 1893, safety equipment was specified for railroad cars and engines. In 1902, the Public Health Service was established and Congress passed an elementary safety act that merely regulated the sale and control of viruses, serums, and toxins. The Bureau of Mines was established in the Department of the Interior in 1910. In 1912, the Esch Act was passed, which placed a prohibitive tax on phosphorous; by curtailing the use of phosphorous in match factories, phosphonecrosis ("phossy jaw"), a painful facial disease, was eliminated.

Although direct federal safety legislation was slow to be enacted, other congressional enactments in the field of labor law had indirect effects on workplace safety and health. In 1916, Congress enacted the first federal child labor law, although this act and subsequent attempts to regulate child labor were declared unconstitutional. The Fair Labor Standards Act of 1938 contained the first child labor regulations to be upheld by the Supreme Court.

During the 1930s federal labor legislation focused on union organization and collective bargaining. Even though the National Industrial Recovery Act (NIRA) was held unconstitutional, the National Labor Relations Act (NLRA) (also known as the Wagner Act), passed in 1935, was declared constitutional. The Davis-Bacon Act of 1931 dealt with wage rates for laborers and mechanics working on public buildings, but took no effective steps toward remedying industrial accidents.

In 1936, Congress enacted the Walsh-Healey Public Contracts Act, which limited working hours, child and convict labor, and set mild standards for working conditions in factories. The Walsh-Healey Act required that contracts entered into by any agency of the United States for the manufacture or furnishing of materials in any amount exceeding $10,000 must contain a stipulation that the working conditions of the contractor's employees must not be unsanitary, hazardous, or dangerous to health and safety. The Walsh-Healey Act, however, had limited coverage and failed to provide and enforce strict industrial health and safety standards.[1]

The Labor Management Relations Act (Taft-Hartley Act), passed in 1947 over President Truman's veto, contained a provision (section 502) permitting employees to walk off a job if it was "abnormally dangerous." In 1948, President Truman called the first Presidential Conference on Industrial Safety. Although these meetings continued throughout the Eisenhower years, the only noticeable outcome was a bill introduced by Senator Hubert Humphrey in 1951. The Humphrey Bill, which attempted to establish an accident prevention bureau, led Congresswoman Lenore K. Sullivan to ask Labor Secretaries James P. Mitchell and Willard Wirtz for their support of legislation to ensure proper standards for handling hazardous materials in industry.

In the area of mine safety, Congress was more inclined to take action after the occurrence of a tragic accident. For example, the death of 119 miners in West Frankfort, Illinois, in December 1951 led to the passage of a Coal Mine Safety Act in 1952. Six years later, the Maritime Safety Act was passed, which amended the Longshoremen's and Harbor Workers' Compensation Act.

During the mid and late 1960s, Congress continued to enact specialized or limited safety statutes. In 1965, the McNamara-O'Hara Public Service Contract Act was passed to provide labor standards for the protection of employees of contractors performing maintenance service for federal agencies. Also in 1965, the National Foundation on the Arts and Humanities Act was passed, conditioning receipt of federal grants on the maintenance of safe and healthful working conditions for performers, laborers, and mechanics.

Congress took its first significant step in job safety and health when it passed the Metal and Nonmetallic Mine Safety Act of 1966. In January 1968, President Johnson proposed the nation's first comprehensive occupational safety and health program. Although this bill never reached a vote, a later version of the bill was reported out of the House Education and Labor Committee's Select Subcommittee on Labor.

Later in 1968, a coal mine explosion in Farmington, West Virginia, killed 78 men and shocked Congress into realizing the need for new job safety legislation. Congress reacted by passing the Coal Mine Health and Safety Act of 1969. The Contract Work Hours and Safety Standards Act of 1969 (also known as the Construction Safety Act) established federal standards for construction on public works. In 1970, Congress enacted the Federal Railway Safety Act, designed primarily for passenger safety, but also containing employee safety provisions.  By 1970, interest in job safety and health had reached new heights. The initial industry-specific legislation had been enacted and many members of Congress were ready to give serious consideration to more comprehensive federal regulation of workplace safety and health. The result was the passage of the Occupational Safety and Health Act of 1970.

 [1] FN 2: In fiscal 1969, fewer than 3,000 of the estimated 75,000 companies covered by Walsh-Healey were inspected for job safety and health conditions. These inspections resulted in only 34 formal complaints and only 32 formal hearings. Joseph A. Page & Mary-Win O'Brien, Bitter Wages 100 (1973).

Globally, someone dies every 15 seconds from an occupational disease or fatal work-related injury. The International Labour Organization (ILO) estimates that more than 2.3 million deaths occur annually from work-related causes. Another 313 million incidents occur each year which result in serious and disabling injuries, and an economic burden of 4 percent on global Gross Domestic Product (ILO, n.d.).

According to the US Bureau of Labor Statistics (BLS), approximately 4500 American workers suffer fatal traumatic injuries on the job each year, and employers record more than three million serious occupational injuries annually on the injury and illness logs they are required by law to maintain. Recordable workplace injuries range in severity from those requiring care beyond first aid to fatal injuries.  Nearly half of recorded injuries require at least a day away from work, a job transfer or work restriction for recovery. The economic costs of occupational injuries are enormous.  The National Safety Council, for example, estimates that fatal and non-fatal work injuries in the US cost $198 billion in 2012.  To put this in perspective, these estimates are in the same range as the estimated costs of dementia or of diabetes.

Following a series of studies showing that employer logs did not contain a substantial portion of workplace injuries reported elsewhere (among, for example, workers' compensation claims or emergency department visits), it is now widely recognized that the government’s estimates of work-related injuries substantially understate the incidence of workplace injuries, probably by between 40 and 70%. This suggests that the actual costs of workplace injuries are also likely to be far higher than current estimates.

Even less is known about the extent of work-related illnesses, since there is usually a lag time (known as a latent period) between hazardous exposures and the development of symptoms of most occupational illnesses.  In part because of this latency, most illnesses with an occupational cause or contribution are not recognized as work-related. However, several studies have estimated that approximately 50,000 annual US deaths are attributable to past workplace exposure to hazardous agents such as asbestos, silica and benzene with another 400,000 workers suffering non-fatal illnesses.   In comparison, about 33,000 people died in traffic crashes in the US in 2013.

The workplace hazards that cause or contribute to injuries and illnesses differ depending on the industry and nature of the work. Garment and textile industry workers, for example, may be exposed to cotton dust which can cause lung disease and repetitive motion hazards which lead to carpal tunnel syndrome and other musculoskeletal disorders. They may work in close quarters, with fire hazards or poor ventilation. The 2013 Rana Plaza factory collapse in Bangladesh that killed more than 1,100 mostly women workers, was a harsh reminder that many people work in dangerous structures with building code violations. Factories where electronics are assembled, in contrast, must be clean and temperatures well-controlled. The global electronics industry employs vast numbers of workers. For example, one company, Foxconn, employs nearly two million workers in China alone to make cell phones, computers and other electronic products. Workers in electronics manufacturing may be exposed to a variety of chemical solvents that are associated with neurological symptoms and cancer, as well as to excessive work hours and production quotas.

While this is especially true for workers in developing countries, harsh working conditions continue for many US workers. About 250,000 workers in the US are employed in poultry processing plants. They face production line speeds from 140 to 175 birds per minute. They frequently suffer disabling musculoskeletal injuries from forceful, repetitive movements, respiratory symptoms from disinfecting agents and organic dusts, as well as lacerations and skin infections.

More than 500,000 workers employed in healthcare and social assistance are injured each year, the largest number in any industry.  The likelihood of a hospital worker being injured on the job is higher than that of a worker in construction or manufacturing. According to the BLS, almost one in every seven employees of state-run nursing or residential care facilities is injured each year. Other high hazard industries include agriculture, forestry, fishing and hunting; arts entertainment and recreation; and transportation and warehousing.

Perhaps the most common workplace hazards come from ways the body must act to perform the requirements of a job that is designed without adequate consideration of the health and safety of the worker. These hazards are called ergonomic hazards, characterized by the workers’ physical activities that combine requirements for repetitive and/or forceful motions and awkward posture and position.  Musculoskeletal disorders (MSDs), primarily caused by ergonomic hazards, account for one-third of all employer-recorded work-related injuries that result in days away from work; these conditions are prevalent across many industries and occupations.   

There is much evidence that the prevalence of these conditions is greatly underestimated, especially in industries in which African-American and Latino workers are disproportionality employed.  When scientists from the National Institute for Occupational Safety and Health (NIOSH) surveyed workers employed in a large poultry processing plant in South Carolina, they found more than 40% of workers had evidence of carpal tunnel syndrome, an MSD associated with repetitive, forceful hand activities (like cutting chicken). Few if any of those cases made it onto the employer’s log of injuries and illnesses. 

Low and stagnant wages have forced some wage earners, especially those supporting a family, to hold two or more jobs.  Beyond its detrimental impact on family life, working long hours leads to worker fatigue and increases the risk of work-related and non-work related injuries, as well as motor vehicle crashes.

The law is more central to the successful prevention of occupational diseases and injuries than it is in most other public health arenas. Because occupational disease and injury often occur in the private sector, achievement of public health goals requires direct legal intervention in core economic activities.  Not surprisingly, political and legal barriers limit the government's ability to intrude into these activities.

The law balances individual and corporate rights against the best public health outcome. In this sense, the law serves both as an important tool for achieving public health objectives and, at times, as an obstacle.   In the case of occupational safety and health, this underlying tension is exacerbated by the fact that the right of workers to a safe working environment may be compromised by competing rights extended to their employers who are themselves entitled to due process and protection from excessive government intrusion. 

There are many manifestations of the legal tensions between the public health goals of the Occupational Safety and Health Act (29 U.S.C. §651 et seq.) and other principles that may be seen as limiting the promotion of public health.  For example, at its heart, the Act broadly mandates that every employer “shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or likely to cause death or serious physical harm to his employees.”  29 U.S.C.A. §654(a)(1).  In furtherance of this clear public health goal, the Act then authorizes the government to “enter without delay...and to inspect…” workplaces [29 U.S.C.A. §657(a)(1,2)].   But this broad right of entry was limited by a decision of the U.S. Supreme Court that balanced this public health principle against the Fourth Amendment right of employers to demand that the government seek a search warrant before searching premises.  See Marshall v. Barlow’s Inc., 436 U.S. 207 (1978).  In another example of this kind of balancing of interests, the OSHAct itself requires OSHA to get a court order before closing a work operation, even if the inspector finds an imminent (that is, “about to happen” [OED]) danger, resulting in critical delays to regulatory intervention [29 U.S.C.A. §662(a)(b)].  These limitations on the power of the law may vary, depending on specific circumstances.  For example, the Mine Safety and Health Act is more protective of public health because of the history of the mining industry and public recognition of the high level of risk.  Thus, mining inspectors may close an imminently dangerous mine without seeking court approval.

Legal Issues in the Prevention of Occupational Injury and Disease

In the sections below, I describe aspects of the legal environment that affect the prevention of occupational disease and injury…, possible legal interventions, and the particular model that is currently utilized in the United States.  

Direct Government Regulatory Intervention

Governments can set enforceable rules to govern health and safety conditions in workplaces. Regulation is an essential tool to achieve reduction of workplace risks because alternative methods (legal regulation of contracts, property, and liability for injuries) generally have failed to create adequate incentives for employers to assess and eliminate risks.  For example, much of the cost associated with death and disabilities resulting from occupational exposures in the United States is externalized from workplaces and therefore does not create sufficient incentives for employers to reduce risks. 

Effective regulatory intervention requires all of the following:

• A law that sets out the principles for regulation.

In the United States, general industry is governed by the Occupational Safety and Health Act (OSHAct) (29 U.S.C. §651 et seq.) and the mining industry is governed by the Mine Safety and Health Act (Mine Act) (30 U.S.C. §801 et seq.).  These laws have similar provisions but differ in their enforcement powers. For instance, most inspections under the OSHAct are discretionary, while most inspections under the Mine Act are mandatory.

The OSHAct covers the vast majority of private establishments in general industry, but excludes all public sector employers.  Federal employees are covered by a broad presidential Executive Order (Exec. Order No.  12196 [February 26, 1980]) that extends the provisions of OSHA to the federal employment sector.  Many states have state laws with similar provisions that cover state and local public employees.  A variety of less well known laws provide some health and safety coverage to workers in specified industries such as transportation and longshoring, or protection against particular exposures, such as use of radioactive nuclides.

The stated purpose of the OSHAct is to “assure as far as possible every working man and woman in the Nation safe and healthful working conditions” [29 U.S.C.A. §651(b)].   Employers are obligated to comply both with standards and with the “general duty clause” that requires every employer to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees”  [29 U.S.C. §654(a)(1)].  

• An agency with appropriate expertise.

To be effective in its regulatory role, a government agency must have expertise that will:

• • identify significant hazards;
  • evaluate the risks of illness or injury caused by these hazards;
  • design appropriate regulations;
  • inform affected employers, employees, and employee representatives of requirements;
  • enforce the regulations through workplace inspections and imposition of penalties; and
  • establish appropriate review processes for rule-making and enforcement activities.

For example, the OSHAct established the Occupational Safety and Health Administration (OSHA) and the Occupational Safety and Health Review Commission. Similarly, the Mine Act established the Mine Safety and Health Administration (MSHA) and the Mine Safety and Health Review Commission.  Both agencies have all of these responsibilities and powers. Both U.S. laws set out standard administrative procedures for rule-making and review of enforcement activities.  Both laws also set out internal appellate procedures and establish the federal courts as the judicial appellate bodies for review of agency decisions.

• A mechanism to decide what hazards warrant intervention.

Regulations generally target hazards that create an unacceptable risk of injury or disease for workers.  Both the decision to regulate a significant hazard, and the decision regarding the specific regulatory requirements, involve an assessment of whether the risk is excessive.  This determination will vary based upon who is making the determination and upon political and economic concerns.

Under the OSHAct, OSHA must show that any rule (called a standard in the statute) is “reasonably necessary or appropriate to provide safe or healthful employment and places of employment” [29 U.S.C. §652(8)].  In interpreting this language, the U.S. Supreme Court held that OSHA demonstrate that any standard is “reasonably necessary and appropriate to remedy a significant risk of material health impairment.”  Industrial Union Dept., AFL-CIO v. Marshall (“the benzene case”), 448 U.S. 607 (1980) (emphasis added). The Court also said that OSHA must “make a threshold finding that a place of employment is unsafe—in the sense that significant risks are present and can be eliminated or lessened by a change in practices” [Id].  In making this finding, OSHA must be prepared to estimate the number of injuries or illnesses that a regulation would prevent.  That is, the Court said that OSHA had to assess risk of injuries or illnesses, determine that the risk was significant, and determine that a proposed standard would reduce that risk to an acceptable level.  The Court specifically rejected the notion that the OSHAct required the creation of risk-free workplaces. 

• A defined basis for establishing the minimal level of protection that is to be required by any regulation.

In every regulatory system, there must be a decision regarding the level of protection that is required.  For example, feasibility is one measure of the appropriate level of minimum protection, and this is the measure adopted in the OSHAct.  But even if feasibility is the measure, there may not be general consensus as to the definition of feasibility.  Should feasibility be governed by currently available technology?  In the alternative, regulations can encourage the development of new and more protective technologies.  Should economic feasibility be a consideration for an industry or for any particular employer? What trade-offs are appropriate to consider?  For example, are cost–benefit analyses appropriate in the designing of health and safety regulations, and, if so, how does one measure the benefits or the costs of illness, injury, disability, and death?  Are there differences in the appropriate approach to safety risks (that may result in immediate death or injury) and health risks (where cumulative exposure over time may produce adverse health effects)?   How does one balance feasibility against the level of protection due to workers?

These questions are answered under the OSHAct as follows. Under the Act, regulation of all risks is subject to the “reasonably necessary or appropriate” language in Section 3(8).  In regulating a health hazard, OSHA is specifically required to set a standard that “most adequately assures, to the extent feasible, on the basis of the best available evidence, that no employee will suffer material impairment of health or functional capacity even if the employee has regular exposure to the hazard dealt with by such standard for the period of his or her working life” [29 U.S.C. §655(b)(5) (emphasis added)]. In addition to the attainment of the highest degree of health and safety protection for the employee, other factors are consideration of the latest available scientific data in the field, the feasibility of the standards, and experience gained under this and other health and safety laws [Id].

In interpreting these requirements, the U.S. Supreme Court endorsed the language that requires OSHA to demonstrate that compliance with a standard is feasible (that is, “capable of being done”) and rejected the argument that OSHA had to show that the benefits to be derived from a regulation must outweigh the costs of complying with it.  The court said, “Congress itself defined the basic relationship between costs and benefits, by placing the ‘benefit’ of worker health above all other considerations save those making attainment of this ‘benefit’ unachievable...[C]ost–benefit analysis is not required by the statute because feasibility analysis is” [American Textile Mfrs. Inst. v. Donovan, 452 U.S. 490, 508–09 (1981) (“cotton dust case”)].  Since this decision, courts that have reviewed OSHA standards have required OSHA to make detailed findings regarding feasibility of compliance with a standard.  Technological feasibility is therefore based upon the existence of currently available (not hoped-for) technology. 

OSHA (in response to a remand from a court) has set out principles that require a determination of feasibility for safety standards as well.  Under the regulations, safety standards must also set the most cost-effective means for achieving the goal [58 Fed. Reg. 16,612-23 (1993)].  Explicit cost benefit analysis is not required, however.

The specific requirements of health and safety rules can vary.  Health standards generally set permissible exposure levels (based upon time–weighted averages, short–term [15–minute] exposure limits, and ceiling levels), establish monitoring and reporting requirements, and provide for medical surveillance.  Safety standards can either set specification requirements (setting the precise requirements for compliance) or performance standards (allowing employers to design their specific compliance within guidelines). 

• Dissemination of information to affected employers and employees regarding the regulatory requirements.

In order to comply with a rule, people must be aware of it and understand it.  In the occupational safety and health field, both employers and employees need information.  In the United States, employers receive information directly from the regulating agencies, as well as through various trade and commercial associations. 

Four OSHA requirements provide access to information for employees. 

1. Employers must post information regarding the law in an accessible and visible place.

2. The Hazard Communication Standard requires training, warnings, and communication of information to workers who use hazardous chemicals [29 CFR §1910.1200]. Generally, employees must request the material safety data sheets (MSDSs) to which they have legal access under the Hazard Communication Standard.

3. The Access to Employee Exposure and Medical Records Standard gives employees access to records that are maintained by employers regarding their exposure to toxic substances or their own medical condition [29 CFR 1910.1020]. This rule requires only that the employer provide the records that are maintained; it does not establish any record keeping requirements. Both individual employees and unions may request information under this standard.  Unions can obtain access to individualized medical information only with the consent of the individual employee. 

4. Employees are allowed to view employers’ record of injuries and illnesses that employers must maintain under the regulations.

In addition, unionized employees have access to information from employers as part of the collective bargaining process.

• Enforcement methods to ensure adequate compliance to both general and specific regulatory requirements.

Regulatory intervention is based upon the assumption that employers (and, in some instances, employees) will comply with the required rules without the ongoing presence of an enforcement agent. This may function simply as a normative principle:  that is, people will sometimes comply with known rules without further action.  But effective enforcement of regulatory requirements substantially increases the likelihood of compliance with rules, particularly unpopular or costly rules, by creating incentives (in the form of inspections, oversight, and penalties). 

Once a rule is established, enforcement is designed to ensure compliance with the rule, not to reassess its feasibility. The rules are designed to reduce risks and therefore to prevent disease and injury.  While risk assessment occurs during the development of regulatory standards, enforcement involves risk management.

Because rules can be ignored if they are not enforced, effective enforcement is at the heart of effective health and safety regulation.  Enforcement is difficult because it requires both substantial resources and the political will to intrude into private workplaces. 

Enforcement activities need to encourage compliance at all times, not only at the time of inspection.  This is particularly important (and difficult) in the context of chronic health hazards, such as respirable dust or noise.  For these hazards, conditions can vary substantially from one day to another and risk of disease is the result of exposure over time, but inspections can only identify brief instances of continually changing conditions.

Effective enforcement requires:

1. Unambiguous communication of expectations and rules to employers and employees.

2. On–site presence of the regulatory agency. In general, this is achieved through inspections performed by health and safety professionals employed by the regulating agency.  The utility of on–site inspections can be enhanced by empowering workers and unions to request and participate in them.  Both OSHA and MSHA employ professionals who perform on–site inspections, but they differ markedly in the breadth and depth of their powers.  In relation to the number of workers and workplaces under its jurisdiction, OSHA employs relatively few compliance officers and there are no statutory requirements for regular inspections of any workplaces.  The agency must set priorities for inspections, but the majority of workplaces are never inspected.  Inspections are only required after serious injuries or fatalities.  In contrast, the Mine Act requires quarterly on-site inspections of underground mines and biennial inspections of surface mines, in addition to other inspections in response to specific concerns.  Evidence suggests that the MSHA model creates a more effective tool to encourage regulatory compliance to reduce workplace risks.

3. Specified powers for the on–site inspector or compliance officer. How extensive is the inspection? Can the inspector close down an operation or take other immediate on-site action?  Can the employees participate in the inspection?  The possible variations in on-site powers are illustrated by some of the key differences between the Mine Act and the OSHAct.  MSHA inspectors can perform full inspections of an entire workplace; they can close down an operation if it poses an imminent hazard; and miners are guaranteed the right to participate in the inspection and to be paid for their time.  In contrast, OSHA inspectors are often limited in the scope of an on-site inspection; they can only close down an operation by seeking intervention from a federal court (a cumbersome process); workers’ participation in inspections is not compensated; and inspections cannot be challenged based upon a failure to involve the workers at the site. 

4. Penalties for noncompliance. The incentive to comply with the regulatory requirements rises with both the amount of the penalty and the likelihood that a substantial penalty will be imposed.  OSHA sets penalties for serious, nonserious, and willful violations of both the rules and the general duty clause.  OSHA penalties are often relatively small and therefore provide little financial incentive, on their own, for risk reduction.  Additional economic incentive for compliance may derive from costs imposed by the market on employers who fail to comply, including the costs of OSHA appeal proceedings, higher insurance premiums, loss of contracts, or greater difficulty in raising capital.

5. Requirements for abatement of noncomplying conditions. How aggressively does the regulatory agency require the employer to remove unlawful hazards that are discovered? To what extent can the employer delay or eliminate a requirement for hazard removal through use of appeal procedures?  Can employers obtain “variances” that allow noncompliance without demonstrating the effectiveness of alternative strategies to reduce risk? Whenever OSHA issues a citation, it sets a period of abatement within which the employer is required to correct the hazard.  Under OSHA, however, this abatement period can be appealed.

6. Appeal processes by which agency enforcement actions are reviewed. Are these review procedures efficient?  Is the review conducted by individuals with expertise in health and safety matters?  Can employer delay abatement through use of these procedures?  Do appeals often result in substantially reduced fines, through negotiation or decisions?  These variables can dramatically impact the effectiveness of all components of enforcement activities. Under OSHA, employers can challenge the citation itself, the amount of the fine, and the period required for abatement.  During the period of the appeal, the employer will not be required to abate the hazard, despite the continued exposure of workers to the regulated risk. If the employer appeals, employees or their representatives can become parties to the proceedings.  If the employer does not appeal, however, employees may only challenge the period of abatement.

• Protection of workers who initiate and participate in enforcement activities.

Employees and unions provide critical information regarding health and safety conditions in workplaces and have vested interests in reducing workplace risks in order to maintain their own health and the viability of their continued employment. Effective protections require both substantive rights against retaliation and procedures that are speedy and accessible for employees.  The ability of workers to participate effectively in preventive activities depends upon their ability (without retaliation) to seek information from their employers in order to investigate health concerns; to inform the regulatory agency regarding hazards; to participate in inspections or post-inspection proceedings, thus ensuring the inspections are thorough; and to refuse imminently dangerous work.

In the United States, these protections are theoretically offered under the OSHAct and the Mine Act, as well as under the general labor laws (National Labor Relations Act), and under collective bargaining agreements (union contracts). The OSHAct’s specific anti-retaliation provisions are quite weak: workers only have 30 days to complain; the agency must agree to file the legal complaint in federal court; the remedy available to workers is limited to back pay and reinstatement.  Few cases are ever filed. While both MSHA and OSHA guarantee to workers the right to refuse imminently dangerous work, the enforcement provisions under OSHA make this a difficult right to enforce.  …

[Other] Legal Structures to Promote Prevention in the Workplace

Other than direct regulatory intervention, what other legal interventions might increase the likelihood that employers would reduce workplace risks?  At least two other critical aspects of the law will affect the likelihood that employers will work to reduce injuries.  The first involves the extent to which workers who are injured at work or who are active in health and safety organizing can maintain job security.  The second issue relates to the allocation of the costs of morbidity and mortality caused by occupational hazards.

• Job security for employees.

The basic (generally unwritten) contract of employment between an employer and an employee can substantially affect an employer’s incentive to provide a safe workplace.  If a worker can be discharged for engaging in health and safety activities, or if a worker can be discharged without cost when he or she becomes medically unfit to perform a job, the employment relationship provides little incentive for the employer to prevent injuries.  Conversely, if the employer must retain workers who raise concerns about health and safety and must pay the full costs associated with injury and disability, substantial incentives may exist to reduce health and safety hazards.  Thus, a lifetime contract irrespective of work-caused impairment would create the highest level of incentive to reduce the risks.  The least incentive exists when an employer can easily terminate employees for activism around health and safety or for inability to perform the pre-injury job at pre-injury performance levels. 

Unlike most industrialized countries, private sector employees in the United States are generally governed by the “employment-at-will” doctrine.  Under this rule, employers can terminate employees without justification and without offering an explanation.  The rule also presumes that an employer is free to change the conditions of employment unilaterally: if employees continue to work, they are deemed to have accepted the new terms of work.  This basic principle applies to health and safety conditions, subject to regulatory interventions.  Union contracts generally amend the general “at will” rule to require “just cause” for discharge and to give unions the right to bargain over changed conditions.  For a variety of complex reasons, however, the extent of unionization in the private sector workforce has fallen to under 9% in recent years in the United States.[1]  Public sector workers have greater basic legal protections from civil service systems, and are more likely to be unionized.  States have developed laws that provide some protection for nonunion workers who are discharged in violation of “public policy,” and these protections have been extended in a few states to include protection against retaliation for raising health and safety concerns.  But these protections are limited.

*** [Discussion of the Americans with Disabilities Act is omitted here as it has been superseded by the amendments to the ADA.  It remains true, however, that, despite provisions of the Americans with Disabilities Act (ADA), state anti-discrimination laws governing disability, limited protections for medical leave under the Family and Medical Leave Act, and some provisions of union contracts, many workers who are unable to work due to occupational injuries are not guaranteed continued employment by law.] 

The U.S. Supreme Court has also endorsed the principle that an employer can discharge an employee at risk for disease in order to achieve a safe workplace. In a case involving an employee with hepatitis C, the court relied on the employer’s obligation to provide a safe workplace under the OSHAct to uphold the employer’s right to terminate an employee because his liver disease would be exacerbated by continued exposure to toxins in an oil refinery  [Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002)]. While this decision endorses the general principle that employers have an obligation to provide a safe and healthy working environment for each and every worker, it also underscores the fact that public policy does not guarantee job security to individual workers with underlying chronic disease who are at risk at work.

• Allocating the costs associated with occupational injuries and illnesses.

The cost of injury, illness, and death can be borne by workers and their families, by employers, or by social insurance systems that spread the costs in a variety of ways.  Employers can be required to provide some form of benefits through public or private insurance schemes to cover medical costs, wage loss, and other economic and noneconomic losses. 

Alternatively, through a negligence-based tort system, employers may have to pay the costs of injuries if they should have prevented the injury and failed to do so. This system provides both compensation for the employee who is injured and financial incentives to the employers, who would have to pay the costs to the employee.  But these systems are also uncertain and fail to provide compensation to large numbers of injured workers who may not be able to provide the necessary legal proof regarding negligence or whose injuries are not sufficiently severe to warrant litigation. If insurance can be purchased by the employer to cover the costs, the costs are spread among a group, reducing the individual incentive to reduce risks.  Individually–based experience rating schemes correct for this to some extent.

Social insurance systems attempt to provide compensation more broadly and more efficiently.  The amount paid to individual workers is generally reduced, but the worker is not expected to provide proof of negligence.  The administrative structure in these systems is intended to be less complicated and provide speedier justice.  These systems tend to spread the costs more, dulling even further the specific employer incentives.

Most countries utilize systems that combine elements of these two approaches.  In the United States, most employees with work-related injuries are eligible for workers’ compensation benefits.  These benefits are established under state and some federal laws.  In the United States alone, there are more than 55 different systems of compensation, requiring different proof, with different procedures, and providing differing levels of benefits.  All of these systems provide medical benefits for the specific work-related injury, some replacement of lost wages, and some system for compensating for permanent impairments.  All of these systems provide some form of insurance system that spreads the costs of injuries among a class or group of employers (with a limited amount of adjustment of insurance rates based upon employer-specific experience).  Significantly, all of the state compensation systems are viewed as the exclusive remedy for workers who are injured at work.  They therefore replace tort liability, protecting the employer from lawsuits involving the injuries in almost all situations.  Workers’ compensation is therefore both a system of compensation for workers and an insurance system to protect employers from liability for negligently caused injuries.  If levels of compensation for workers in these programs are reduced, financial incentives for employers to reduce hazards are likewise reduced.

For a variety of reasons, workers’ compensation programs generally are much more effective at providing compensation for traumatic injuries (particularly those that do not result in long–term impairment) than for occupational diseases that result from exposure to health hazards over time. To the extent that these systems provide some incentive for employers to reduce risks, these incentives therefore tend to be relatively less effective in encouraging the reduction of health hazards.  

The amount of compensation provided by workers’ compensation programs does not replace all of the economic losses of the worker, and it does not compensate the worker for any noneconomic losses.  The costs that are not covered are borne by workers and their families and by other, more general, social insurance and social welfare programs.  For example, a worker with a significant injury who is unable to continue working may apply for benefits under the Social Security Disability program.  This program provides lifetime benefits to all individuals who have worked for a required period and who are permanently disabled from continuing to work, irrespective of the cause of their disability. 

Although most occupationally injured employees in the United  States cannot bring tort litigation directly against their employers, they can bring lawsuits against “third party” manufacturers of equipment or substances.  These manufacturers generally have legal duties to warn users of their products of hazards and to eliminate known defects.  These manufacturers are not protected by the exclusive remedy provisions of workers’ compensation.  Notably, however, this liability will not increase employers’ incentives to reduce risks in workplaces.

 

[1] Update note: 

The Bureau of Labor statistics updates these data annually. According to the statistics published January 2024: “The union membership rate—the percent of wage and salary workers who were members of unions—was 10.1 percent in 2022, down from 10.3 percent in 2021…The 2022 unionization rate (10.1 percent) is the lowest on record. In 1983, the first year where comparable union data are available, the union membership rate was 20.1 percent… The union membership rate of public-sector workers (33.1 percent) continued to be more than five times higher than the rate of private-sector workers (6.0 percent).” https://www.bls.gov/news.release/pdf/union2.pdf

§ 651. Congressional statement of findings and declaration of purpose and policy

(a) The Congress finds that personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to, interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.

(b) The Congress declares it to be its purpose and policy, through the exercise of its powers to regulate commerce among the several States and with foreign nations and to provide for the general welfare, to assure so far as possible every working man and woman in the Nation safe and healthful working conditions and to preserve our human resources—

(1) by encouraging employers and employees in their efforts to reduce the number of occupational safety and health hazards at their places of employment, and to stimulate employers and employees to institute new and to perfect existing programs for providing safe and healthful working conditions;

(2) by providing that employers and employees have separate but dependent responsibilities and rights with respect to achieving safe and healthful working conditions;

(3) by authorizing the Secretary of Labor to set mandatory occupational safety and health standards applicable to businesses affecting interstate commerce, and by creating an Occupational Safety and Health Review Commission for carrying out adjudicatory functions under this chapter;

(4) by building upon advances already made through employer and employee initiative for providing safe and healthful working conditions;

(5) by providing for research in the field of occupational safety and health, including the psychological factors involved, and by developing innovative methods, techniques, and approaches for dealing with occupational safety and health problems;

(6) by exploring ways to discover latent diseases, establishing causal connections between diseases and work in environmental conditions, and conducting other research relating to health problems, in recognition of the fact that occupational health standards present problems often different from those involved in occupational safety;

(7) by providing medical criteria which will assure insofar as practicable that no employee will suffer diminished health, functional capacity, or life expectancy as a result of his work experience;

(8) by providing for training programs to increase the number and competence of personnel engaged in the field of occupational safety and health;

(9) by providing for the development and promulgation of occupational safety and health standards;

(10) by providing an effective enforcement program which shall include a prohibition against giving advance notice of any inspection and sanctions for any individual violating this prohibition;

(11) by encouraging the States to assume the fullest responsibility for the administration and enforcement of their occupational safety and health laws by providing grants to the States to assist in identifying their needs and responsibilities in the area of occupational safety and health, to develop plans in accordance with the provisions of this chapter, to improve the administration and enforcement of State occupational safety and health laws, and to conduct experimental and demonstration projects in connection therewith;

(12) by providing for appropriate reporting procedures with respect to occupational safety and health which procedures will help achieve the objectives of this chapter and accurately describe the nature of the occupational safety and health problem;

(13) by encouraging joint labor-management efforts to reduce injuries and disease arising out of employment.

§654. Duties of employers and employees

(a) Each employer-

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

(b) Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.

*******

Section 654 (a)(1) is referred to as the “general duty clause.” Enforcement of this non-specific duty is complex, see below.

The OSHAct is fundamentally different from the other employment law statutes that you may have studied. It is conceptually closer to the EPA. Focused on the public health issues, it gives the responsibility for developing standards and for enforcing these standards and the “general duty” clause [Section (a)(1) above] to the Occupational Safety and Health Administration (OSHA), which is headed by an Assistant Secretary of Labor. The Mine Safety and Health Act similarly created a sister agency, the Mine Safety and Health Administration, also within the Department of Labor. Both acts also created adjudicatory agencies: the Occupational Safety and Health Review Commission (OSHRC) and the Mine Safety and Health Review Commission (MSHRC). Administrative law judges (ALJs) are responsible for the initial level of dispute adjudication between OSHA and a party charged with a violation of either a standard or the general duty clause. Three member Commissions, each appointed by the President, resolve appeals. Further appeals go to U.S. Circuit Courts of Appeals. In addition, the OSH Act created the National Institute for Occupational Safety and Health (NIOSH) as a federal research agency; it is currently housed in the Centers for Disease Control and Prevention of HHS.

With the exception of the railroad and mining industries (both covered under separate federal safety legislation), the OSHAct covers all private sector workers. OSHAct §4, 29 U.S.C. §653. Other agencies may have specific jurisdiction over specific work settings or hazards, however. For example, safety in the trucking industry is also regulated by the Department of Transportation.

Despite its broad jurisdiction, Congress has limited some aspects of enforcement activities for selected employers since 1977. For example, small employers with 10 or fewer employees with good safety records are exempt from regular inspections; small farms are entirely exempt from the Act. Federal employees are covered separately, but in a manner consistent with OSHA regulations. State, county and municipal employees are only covered if the state passes its own health and safety legislation; several states leave their own public sector workers without any statutory OSH protection. 

Enforcement of the OSHAct can be transferred to the states through a process in which the state applies to have a State Plan approved. Under approved State Plans, the federal agency contributes to the operating costs for the state. You can find a current list of approved state plans here: https://www.osha.gov/dcsp/osp/approved_state_plans.html. Although federal the OSH Act only applies to private sector employers, states must include public employees in the state plans. In fact, several states, including New York, Massachusetts, Connecticut, Illinois and New Jersey, have approved plans that cover only public employees; in these states, federal OSHA enforces the law for the private sector.  We will return to a discussion of the powers of states – both those with approved state plans and those without them – later in the course.

As noted above, employers must comply with “occupational safety health standards promulgated under this Act.”  OSHA standards consist of three types: interim, permanent, and emergency standards, described below.  Note that in general administrative law, standards might be referred to as “regulations.”  In OSHA parlance, regulations govern procedural and other aspects of the agency’s work; standards are subject to more stringent review under the statute, as you shall see when we read the cases that reviewed some of the key health standards.

Organizationally, it is the central DC office of OSHA that works on the development of standards.  In contrast, the regional offices focus on investigations and enforcement of existing standards, the general duty clause, and of various whistleblower provisions that are under OSHA’s umbrella.  

Standards are developed in response to an assessment that a hazard is sufficiently widespread, causes health problems or injuries, and can be regulated through technologically and economically feasible means. 

Interim Standards

When the Act was passed, Section 6(a) authorized the issuance of interim standards during the first two years of the Act (until April 27, 1973) without a requirement that the agency adhere to the formal rule-making procedure required for new permanent standards.  

Soon after the act because effective in 1971, the Secretary of Labor promulgated 4400 of these interim standards.These early interim standards were derived either from  existing federal standards (such as under the Walsh-Healy Act) or from “national consensus standards,” which were those already issued by a nationally recognized standards-producing organization such as ACGIH.  Once promulgated, the interim standards were to remain in effect until revoked or revised using the procedure for new permanent standards.  

Widespread criticism led OSHA to delete about 600 of the safety standards in 1978 on the grounds that the standards were either obsolete, directed to comfort rather than safety, or other quite valid grounds. Because there were developed as consensus standards -- that is, suggestions of best practices, not rules -- many of these standards contained advisory (“should”) language, rather than regulatory (“shall” or “must”) language.  When they were promulgated as interim standards, the language was changed to make the requirement mandatory (e.g. replacing "should" for "shall"). The courts struck down this approach, holding that the statutory grant of authority for interim standards required that OSHA use the identical language used in the consensus standards.  See Usery v. Kennecott Copper Corp., 577 F.2d 1113 (10^th Cir. 1977).  In 1984, OSHA formally removed 153 of the interim standards that were based on advisory consensus standards.

The remaining interim standards continue to constitute the bulk of OSHA standards that are currently in effect.This reflects, in part, the tremendous regulatory burden that faces the agency when it wants to develop and promulgate new standards. It means, however, that enforceable rules remain on the books that are obsolete. In some cases, the current consensus standard for a hazard, developed by trade associations or other consensus mechanisms (which may have been updated since the 1970s), is more protective than the existing OSHA standard. We will discuss the problems posed by these continuing PELs in greater depth later. 

Emergency Temporary Standards

Section 6(c) of the OSHAct authorizes OSHA to promulgate rules that become effective immediately upon publication in the Federal Register, without conducting hearings or using advisory committees if “employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards” if the standard “is necessary to protect employees from such danger.”  Arguably (although there is some debate about this) an ETS can only be in effect for six months. 

OSHA has issued only ten ETSs since 1971. Two of these were issued during the COVID pandemic. Of the ten, six were challenged and were vacated or stayed by the courts; one was challenged but went into effect when the court denied a stay; and the remaining three were never challenged and went into effect. We will return some of these ETSs later. 

We will look more closely at some of the issues around the promulgation of an ETS later.

Permanent Standards

The procedure for promulgating permanent standards follows specific steps, enumerated in Section 6(b) of the OSHAct, 29 U.S.C. § 655 (b).  These steps include publication of initial intent to engage in rulemaking ("notice of proposed rulemaking" or NPRM); publication of the proposed standard; an extensive period of comment and public hearing; and final rule promulgation with justification and response to the comments that were received.  

The development of standards by the expert agency was intended to be at the heart of the enforcement of health and safety regulation under the OSHAct.  After more than 40 years, however, OSHA has successfully promulgated only about 51 permanent health and safety standards under Section 6(b). Over the last two decades, standards were issued governing the safety of cranes and derricks in construction (2010), general working conditions in shipyards (2010), an update on the hazard communication rule (2012), a new recordkeeping rule (2014), exposure to silica dust (2016), and exposure to beryllium (2020). A proposed standard governing exposure to heat was issued in July 2024 and was not finalized as of December 2024.  

Commentators have repeatedly charged that OSHA is “ossified” – that it is completely hamstrung in its ability to issue standards, particularly those that govern exposures to health (as opposed to safety) hazards. The reasons for this will become obvious to you as we read through some of the leading cases in which the standards have been reviewed.  There is often strong political as well as legal resistance to the proposed regulations, in addition to the scientific arguments and uncertainty that may underlie the final regulation.  

Moreover, the standard for judicial review of OSHA standards is relatively stringent. The usual standard for judicial review of policy level determinations by expert administrative agencies is “arbitrary and capricious” [see Administrative Procedure Act §702(2)].  In contrast, Section 6(f) of the OSHAct sets a higher bar, requiring that an OSHA standard be supported by “substantial evidence.” The reviewing courts have not applied this standard consistently.  The D.C. Circuit held that it would apply the substantial evidence test to the underlying facts only; when reviewing policy judgments, it would approach the reviewing task “with a flexibility informed and shaped by sensitivity to the diverse origins of the determinations that enter into legislative judgment.” Industrial Union Dept. v. Hodgson, 499 F.2d 467 (D.C. Cir. 1974).  In contrast, the Fifth Circuit applied the substantial evidence test to both OSHA’s policy decisions and its factual findings.  See National Grain & Feed Ass’n v. OSHA, 858 F.2d 1019 (5^th Cir. 1988), on reconsideration, 866 F.2d 717 (5^th Cir. 1989).

It is not clear what the effect of recent Supreme Court decisions will have on the way in which courts view this process. See Loper Bright Enterprises v. Raimondo, 144 S.Ct. 2244 (2024), overruling Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) and declining to extend deference to the expertise of agencies when reviewing regulations. 

But from the very beginning, attempts by OSHA to move away from the initial interim standards have met with litigation and opposition – sometimes by industry, sometimes by labor unions. This has been true for safety standards as well as for health standards.  You will soon read the benzene, cotton dust, and air contaminant cases.  These decisions illustrate the complex process that OSHA confronts in the promulgation of new health standards. These challenges predated recent Supreme Court decisions, and there is little question that these challenges will persist. 

Section 654 (a)(1) of the Act is referred to as the “general duty clause." In addition to compliance with standards, an employer has a general duty to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”  Given the slow process of rulemaking, this clause has particular significance within the OSHA enforcement scheme.  Hazards cited under this duty can be unique, and therefore not really a good target for a general regulation. For example, OSHA successfully cited SeaWorld after an animal trainer was mauled and drowned by a killer whale.  SeaWorld of FL v Perez, 748 F.3d 1202 (D.C. Cir. 2014).  But OSHA has also relied on the general duty clause to cite employers for more generalized serious hazards that are not governed by specific standards, including a high prevalence of ergonomic injuries, persistent incidents of workplace violence, and heat exposure. These materials return later to a discussion of the complexities of the enforcement of this "duty."

Note that, if there is a specific standard governing a hazard, OSHA may not cite an employer for that hazard under the general duty clause. Removal of the currently enforceable interim standards requires full administrative procedure. The result is that OSHA cannot cite employers for known unsafe conditions that comply with these archaic standards - the agency can only cite the employer for violation of the standard itself. 

The federal health and safety laws are all based on a concept of pre-inspection compliance. That is, the expectation is that employers will comply as a preventive matter, not that the agencies will be able to inspect every employer before something happens – or that deterrence will be achieved by post-injury punishment. The OSHAct does not have any requirement to inspect every employer.  MSHA, in contrast, is required to inspect every underground mining operation four times per year and every surface mine twice a year. 

In fact, requiring employers to comply with the OSH Act before an inspection is the only possible approach. The OSHA inspection force is tiny in comparison to the breadth of OSHA’s jurisdiction. According to the OSHA website (accessed December 11, 2024): "OSHA is a small agency; with our state partners we have approximately 1,850 inspectors responsible for the health and safety of 130 million workers, employed at more than 8 million worksites around the nation — which translates to about one compliance officer for every 70,000 workers."  According to an AFL-CIO study, OSHA can inspect each American workplace only once every 117 years with current staffing levels.

While pre-inspection compliance is the goal, the enforcement agencies are empowered to levy civil penalties and to bring criminal actions against employers for failing to comply either with standards or with the general duty clause (which is discussed in the next section of these materials).  The primary responsibility for direct enforcement of OSHA rests with Compliance Safety and Health Officers (CSHOs), known more colloquially as “inspectors” (though you will sometimes hear OSHA staff refer to them as “co-shos”). The main job of the CSHO is to conduct inspections of employer workplaces to determine whether employers are in compliance with all provisions of the Act.   

Note: OSHA's operating procedures are described in great detail in the Field Operations Manual, which contains guidelines for selecting employers for inspection, inspection procedures, citation preparation, penalty assessment, and other matters. The Manual can be found on the OSHA website: https://www.osha.gov/enforcement/directives/cpl-02-00-164

What brings a CSHO to a workplace?

Section 8 of the OSH Act (29 U.S.C. § 657) governs investigations.  As noted above, OSHA cannot possibly reach every workplace under its jurisdiction.  The Act sets out the following priorities for inspections:

(1) Imminent danger investigations. These inspections are almost always conducted within 24 hours of notification to the OSHA area office.  Imminent danger is defined by the Act as a danger "which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this Act." Section 13(a), 29 U.S.C. § 662 (a).

(2) Fatality and catastrophe investigations (three or more employees).  These investigations are conducted to determine if noncompliance with standards or the general duty clause caused the injuries.  When you hear about a fatality on the news, it is often followed by mention that OSHA will investigate.  Boston examples include the fire near Kenmore Square in which an N Star worker died; the fire on Beacon Street in which a firefighter died; and a scaffold collapse on Boylston Street. 

(3)  Investigation of complaints.  Complaints will lead to an inspection unless the person lodging the complaint does not establish reasonable grounds to believe that a violation threatening physical harm or an imminent danger exists; or a recent inspection or other objective evidence indicates that the hazard is not present or has been abated; or, of course, if the complaint is not within OSHA's jurisdiction.

In addition, OSHA has both National and Regional Emphasis Programs that target industries or hazards with particularly high rates of injuries. For example, targeted hazards have included combustible dust, hazardous machinery, hexavalent chromium, isocyanates, lead and crystalline silica; targeted industries have included nursing and residential care facilities, primary metal industries and shipbreaking; targeted processes have included process safety management in chemical facilities and petroleum refineries, and trenching and excavation.

OSHA relies on a site-specific targeting plan to schedule unannounced comprehensive inspections for high hazard work sites, based upon the annual survey of illnesses and injuries conducted by the Bureau of Labor Statistics.  OSHA also uses an “enhanced enforcement program” to target recalcitrant employers for priority investigations.  Some of the strategic targeting decisions are made at the regional level. 

Note that unlike the OSHAct, the Mine Safety and Health Act provides for a mandatory inspection cycle: four times a year for underground mines, twice a year for surface mines.  In addition, the federal-state partnership is designed quite differently under the MSHAct.  In mining, states can set up a parallel mine safety structure which does not displace any of the federal regulatory and enforcement processes.  In contrast, under OSHA, a state either has an approved state plan (and takes over the enforcement activities) or is under federal enforcement jurisdiction. For more about the federal:state relationship under OSHA, see Section 3.9 of these materials.

 What happens when the inspector is at the workplace?

The CSHO first presents credentials to the owner, operator, or agent in charge before proceeding with the inspection tour. The employer has a right to accompany the inspector on the tour.  In addition, an employee representative may participate in the walkaround, although inspections are not invalidated by the lack of an employee representative.  In general, workers assert their rights to participate in the walkaround more frequently in unionized workplaces. 

After the inspection, the CSHOs hold a closing conference, during which they and the employer discuss safety and health conditions and possible violations.  Citations are not issued at this point, because the CSHOs must confer with the OSHA area director before issuing a citation. CSHOs do not have the authority to shut down any operation, no matter how dangerous it is; under the OSHAct, OSHA must seek an order from the federal district court in order to shut down imminently dangerous worksites or processes.  This is another area in which the MSHAct is stronger:  mine inspectors do have shut down authority.

What are the possible penalties under the OSHAct?

See Section 3.9 of these materials for further information regarding civil and criminal penalties.

OSHA violations are categorized as anything from “other-than-serious” to willful or repeated. Penalties are assessed based on the seriousness of the violation and are adjusted annually in January of each year based on inflation. See https://www.osha.gov/penalties

A serious violation occurs where there is substantial probability that death or serious physical harm could result and that the employer knew, or should have known, of the hazard.  A willful violation occurs when the employer knowingly commits a violation involving a hazardous condition or operates with plain indifference to the law.  

Violations can be either to a specific health and safety standard that regulates specific hazards, to a standard that regulates general conduct (e.g. recordkeeping or hazard communication), or to the general duty clause. In considering the level of violation and the size of the penalty, the agency considers several factors: whether the employer was acting in “good faith”; the gravity of the violation; the employer's past history of compliance; and the size of the employer.  

Employers can also be charged with criminal misdemeanors under the statute.  When criminal charges are sought, OSHA works with the U.S. Department of Justice.  Three levels of criminal penalties are authorized under Section 17 of the OSHAct: for a willful violation resulting in death, a fine up to $70,000 plus a jail sentence up to six months; for giving advance notice of an inspection, a fine up to $1000 and imprisonment up to six months; and for knowingly making a false statement, fine up to $10,000 and imprisonment up to six months.  

What happens after the inspector leaves the workplace?

After the CSHO files a report, the area director decides whether to issue a citation, computes any penalties to be assessed, and sets the date by which the violation must be corrected, called the “abatement” period. If a citation is issued, it is sent to the employer, as soon as possible after the inspection, but in no event can it be more than six months after the alleged violation occurred. Citations must be in writing and must describe with particularity the violations alleged, including the relevant standards and regulations. If the citation does not meet these standards, it can be dismissed in subsequent proceedings.

Under the Act, an employer, an employee, or authorized employee representative can file a “notice of contest” within 15 working days.  Employers can challenge any aspect of the citation.  

In contrast, the rights of employees and their representatives to challenge the citation are very limited: if the employer does not challenge the citation, employees can only challenge the abatement period – the time allowed for correcting the violation.  If the employer does challenge the citation, however, the employees’ representative may seek party status in the proceedings that will follow. 

Notably, under the OSH Act, the employer has no obligation to abate the hazard during any pending challenge to the citation.  This again is in contrast to the MSH Act, which requires abatement during the proceedings.  The effect of this is that citations are often settled for reduced penalties in order to force the employer to address the hazard at the workplace more quickly. 

If the citation is not contested, it becomes final. 

If a notice of contest is filed, the agency will immediately forward it to the Occupational Safety and Health Review Commission (OSHRC), which is an independent administrative agency, set apart from OSHA.  It is comprised of three presidentially-appointed commissioners who serve staggered six-year terms. In cases before the Commission, OSHA has the burden of proving the validity of the citation. The hearing is presided over by an administrative law judge, who has broad authority to affirm, modify or vacate any aspect of the citation. The ALJ's decision then automatically goes before the OSHRC. An aggrieved party may file a petition for discretionary review, asking that the ALJ's decision be reviewed by the Commission, but even without a petition any Commission member may direct review of any part or all of the ALJ's decision. In this event, the Commission reconsiders the evidence and issues a new decision. If, however, no member of the Commission directs review within 30 days, the decision of the ALJ becomes final.

Any appeal from an OSHRC order goes to the U.S. court of appeals for the circuit in which the violation is alleged to have occurred or to the U.S. Court of Appeals for the District of Columbia Circuit.

Voluntary consultations vs compliance inspections

Recognizing the remarkable shortage of inspectors, and the vast number of workplace, there is also an effort to achieve voluntary compliance through a range of administrative programs.  On-site consultation services are available; priority is given to small business and businesses in hazardous industries.

In addition, OSHA has two programs that give special privileges to employers that pass through an approval process.  The Voluntary Protection Program (VPP) recognizes employers that have implemented effective safety and health management systems and maintain injury and illness rates below national Bureau of Labor Statistics averages for their industries. According to the OSHA website:

In VPP, management, labor, and OSHA work cooperatively and proactively to prevent fatalities, injuries, and illnesses through a system focused on: hazard prevention and control; worksite analysis; training; and management commitment and worker involvement. To participate, employers must submit an application to OSHA and undergo a rigorous onsite evaluation by a team of safety and health professionals. Union support is required for applicants represented by a bargaining unit. VPP participants are re-evaluated every three to five years to remain in the programs. VPP participants are exempt from OSHA programmed inspections while they maintain their VPP status.

VPP has come under considerable criticism from labor unions and others: both because it pulls resources away from other OSHA activities (the “rigorous onsite evaluation” takes a lot of time); because it gives employers an incentive to fail to report injuries; and because, according to some unions, employees of some VPP approved employers have had significant injuries, suggesting that the employers are not as attentive to safety as is suggested by the designation.

There is a similar program for small business called Safety and Health Achievement Recognition Program (SHARP) which recognizes small business employers that operate “an exemplary injury and illness prevention program.”  Acceptance into the program exempts the worksite from OSHA programmed inspections.  

The SBREFA has an impact on both the rule-making process and on enforcement for small businesses.  In the federal rule-making process, there is a required step for SBREFA review before a proposed rule can be published.  A regulatory flexibility analysis must accompany any notice of a rule that affects small businesses; agencies are required to develop “small entity compliance guides” for all standards that are issued.  

Passed initially as Subtitle E of the SBREFA, 5 U.S.C.A. § 801 et seq., the Congressional Review Act of 1996 (CRA), requires agencies to send a report containing any new standard to the House, Senate, and the General Accounting Office. Congress has 60 days to review the rule.  Congress can pass a joint resolution of disapproval. If signed by the President, a rejected rule cannot take effect or be reissued in substantially the same form except by an Act of Congress or a determination by the President that the rule is in the public interest.  Notably, although this authority is extremely broad, it was only used one time prior to 2017: to stop an OSHA standard governing ergonomics and musculoskeletal injuries (discussed below in Chapter 4 of these materials).  The CRA has been used more frequently in the last two federal administrations, first under President Trump to overturn regulations promulgated during the Obama presidency, and again under President Biden to address Trump era regulations. Federal agencies are now cautious about issuing rules that will span two administrations that might, based on timing, be subject to the CRA. 

The Department of Labor is organized with an internal legal office headed by the Solicitor of Labor (SOL).  For health and safety work, there are lawyers assigned to OSHA in Washington D.C. who work at the policy level, participate in standard development, and work on national litigation strategies.  In the field, both OSHA and SOL are divided into regional offices. The lawyers in SOL in the region are responsible for all litigation – both before the agency adjudicators and in the courts. For an organizational chart of the Department, see https://www.dol.gov/general/aboutdol/orgchart. 

The OSH Act is a regulatory scheme that is designed as a top-down “command and control” statute.  Rights of workers are limited within it. These rights, and how they fit within a broader view of the law governing workplaces, are explored later in these materials. Workers' rights under this Act include: a “right to know” about hazards; a right to participate in the inspection process, including walking around with the inspector; a right against retaliation under Section 11(c); a right to challenge the abatement period set out in a citation; and the right participate in the appeal process more generally if the employer challenges the citation.  In addition, some health standards give additional protections. 

Workers also have responsibilities under the Act.  Section 5(b), 29 U.S.C. § 654(b), provides:

Each employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct. 

Workers have additional rights under other parts of both federal and state legal regimes.  For example, under the National Labor Relations Act, 29 U.S.C. §§ 151-169, workers have the right to organize and, with some limitations, to strike over safety issues.  As part of their collective bargaining function, union representatives have the right of entry to workplaces; rights to obtain information; and rights to bargain over safety and health. Individual workers have rights against discrimination and disharge when they work with others to raise safety concerns in a nonunion workplace under NLRA sections 7 and 8(a)(1), 29 U.S.C. § 157 and § 158. 

State tort law, state law governing employment that is not preempted by the OSH Act or other federal work law, and state law governing health and safety in “state plan states” also affect the rights of workers with regard to health and safety.  Injured workers’ right to compensation is almost entirely under state jurisdiction, and the level and availability of benefits for injuries and illnesses arising out of employment varies considerably from one state to another.  The rights of injured workers to receive accommodation for on-going disability is governed by the Americans with Disabilities Act and by state laws governing disability discrimination.  We will be returning to these workers' legal rights and remedies later. See Chapter 7.

1. Susan, a neighbor of yours, is a 23 year old woman with a high school di She lives with a two year old daughter in a rented apartment. She is a single mother. She works at ABC fast food restaurant, where she flips burgers and cooks French fries. Susan’s job includes the following tasks: she is expected to clean the vent from the fryer on a regular basis; she is expected to empty the vat that holds the hot grease when it is too dirty to continue to use. Last Friday, Susan was badly burned by hot grease. She has been hospitalized since.

What are the key questions you would like to ask about what happened to Susan?  What do you think the concerns are of Susan? Of  her employer? What legal intervention do you think might be appropriate in this situation?

2. Norcor is a company that manufactures cleaning materials. Over the last year, five employees (out of a workforce of 100) have been diagnosed with a relatively uncommon form of lung cancer. None of them has a family history of this kind of cancer. Two of them have been smokers; one of them still smokes tobacco.

In addition to the issues you have identified in thinking about Problem (1), what additional issues need to be addressed? Would it matter to you whether this was a unionized or nonunionized company?