Workplace Safety

OSHA, the Occupational Safety and Health Act of 1970, 29 U.S.C. §§651-78 (2018), addresses safety directly by setting and enforcing rules for safe workplaces. It does so through a top-down regulatory structure rather than through private enforcement or injury claims. Much OSHA litigation deals with whether regulations governing workplace safety are supported by substantial evidence--a difficult question when matters are scientifically uncertain.

We will focus instead on a different dimension of workplace safety: workers' compensation statutes. Workers' compensation statutes emerged from a crisis in the nineteenth century. As more workers moved out of agricultural jobs and into wage labor, many also worked in new industries, in mines, and on factory floors. But much of this work was dangerous, and workers increasingly became seriously injured or even died on the job. Tort law, which might have provided a remedy, precluded recovery in many cases because workers were deemed to have assumed a risk or to have been contributorily negligent.

Workers' compensation statutes, introduced in the states, were designed to strike a bargain between employers and employees: employers would cap their liability and limit their litigation costs, while workers would receive faster, more predictable payments--and pay less in the way of attorney's fees.

We will study the two core dimensions of a workers' comp claim: the arising out of employment and course of employment requirements.