Federal OSHA and California OSHA — No Preemption under Solutus Indus. Innovations, LLC v. Sup. Ct. (2018) 4 Cal. 5th 316.

The California Supreme Court recently held that a UCL claim based on workforce safety regulations is not preempted.

The federal Occupational Safety and Health Act of 1970, 29 U.S.C. section 651 et seq. (the “Federal OSH Act”) establishes a comprehensive regulatory scheme for workplace safety and health. In enacting the Federal OSH Act, Congress gave the states the option to “assume responsibility for development and enforcement of occupational safety and health standards” (29 U.S.C. § 667(b)) provided the state plan is approved by the federal Secretary of Labor.

In California, worker safety is governed generally by the California Occupational Safety and Health Act, LC section 6300 et seq.

In Solutus Indus. Innovations, LLC v. Sup. Ct. (2018) 4 Cal.5th 316 the California Supreme Court reversed the court of appeal and held that the Federal OSH Act does not preempt unfair competition and consumer protection claims based on workplace safety and health violations. The complaint in Solutus was “based on the same worker health and safety standards placed at issue in the administrative [Cal/OSHA] proceedings.” (Id. at 325.) The Court held that “[t]he district attorney’s use of UCL and [False Advertising Law, B&PC § 17500 et seq. “FAL”] causes of action does not encroach on a field fully occupied by federal law, nor does it stand as an obstacle to the accomplishment of the federal objective of ensuring a nationwide minimum standard of workplace protection. In addition, the federal act’s structure and language do not reflect a clear purpose of Congress to preempt such claims.” (Id. at 324.)

Cal/OSHA Regulations Will Support Duty for Negligence/Tort Claims

“In general, plaintiffs may use Cal-OSHA provisions to show a duty or standard of care to the same extent as any other regulation or statute, whether the defendant is their employer or a third party.” (Elsner v. Uveges (2004) 34 Cal. 4th 915, 935-936.)

Cal/OSHA, the Privette Doctrine, and Independent Contractors (Privette v. Superior Court (1993) 5 Cal. 4th 689)

The statute providing that the California Occupational Safety and Health Act (Cal-OSHA) provisions are "applicable to proceedings against employers for the exclusive purpose of maintaining and enforcing employee safety" does not in any way abrogate the doctrine that a hirer of a contractor is liable to the contractor's employee only insofar as the hirer's exercise of retained control affirmatively contributes to the employee's injuries, nor does it expand a general contractor's duty of care to an injured employee of a subcontractor. (Madden v. Summit View, Inc. (2008) 165 Cal. App. 4th 1267 (referring to Lab. Code, § 6304.5).)

In Toland v. Sunland Housing Group (1998) 18 Cal. 4th 253, the Privette rule was extended to recognize that the hirer “has no obligation to specify the precautions an independent contractor should take for the safety of the contractor’s employees.” (Toland, 18 Cal. 4th at 261).

In SeaBright Ins. Co. v. US Airways, Inc. (2011) 52 Cal.4th 590, the Court stated that the previous cases “establish[] that an independent contractor’s hirer presumptively delegates to that contractor its tort law duty to provide a safe workplace for the contractor’s employees.” (Id. at 600.)

The SeaBright court thus agreed with the trial court’s granting of the motion for summary judgment, noting that “plaintiffs ... cannot recover in tort from defendant US Airways on a theory that employee Verdon’s workplace injury resulted from defendant’s breach of what plaintiffs describe as a nondelegable duty under Cal-OSHA regulations to provide safety guards on the conveyor.” (Id.)