Currently, state and local governments are explicitly excluded from the term “employer” as defined under Section 3 of the Occupational Safety and Health Act (the “OSH Act”), 29 U.S.C. § 651 et seq. However, this could change if Representative Lynn Woolsey and Senator Edward Kennedy have their way. On April 26, 2007, these two members of Congress introduced identical bills in their respective houses, both bearing the title “Protecting America’s Workers Act,” that would, among other things, amend Section 3(5) of the OSH Act to define “employer” as “a person engaged in a business affecting commerce who has employees, including the United States, a State, or a political subdivision of a State.” If signed into law, the bills — H.R.2049 and S.1244 — would mandate coverage under the OSH Act for over 8.5 million state, county, and municipal workers.
The 2007 House and Senate versions of the Protecting America’s Workers Act are identical to legislation that was introduced in 2005 and died in committee in the Republican-controlled 109th Congress. Although the legislation is the same, the power structure in Congress has shifted. Now, with the Democratic Party holding a majority of seats in the 110th Congress, H.R.2049 and S.1244 have received far more support in little over a month than their 2005 counterparts ever received. The 2005 versions of the bill had only five co-sponsors in the House and ten co-sponsors in the Senate when they were referred to and died in committee. However, the 2007 House version of the bill was supported by twelve Representatives when it was referred to the House Committee on Education and Labor on April 26, 2007 and has subsequently gained eighteen additional cosponsors. The Senate version of the bill currently has the support of twenty-three Senators.
The increase in support garnered by the proposed Protecting America’s Workers Act is not surprising in light of the recent resurrection and successful passage of the bill to increase the federal minimum wage. In just five months time, the majority-Democrat 110th Congress passed minimum wage legislation that had repeatedly failed during five years of majority-Republican Congresses. Because the history of and support for the minimum wage increase resemble those of the Protecting America’s Workers Act, state and local government employers should brace themselves for the potential passage of legislation expanding coverage under the OSH Act to all public-sector employers.