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DOL Warns of Worker Safety Case ‘Avalanche’ in Maid-Rite Lawsuit

July 29, 2020, 7:42 PM

The Labor Department wants a U.S. court to throw out a lawsuit filed by three anonymous workers at a Pennsylvania meat processing plant who are seeking an order forcing OSHA to inspect the company’s site for Covid-19 hazards.

In a motion to dismiss the case filed Tuesday, the Labor Department said that the suing Maid-Rite Specialty Foods workers failed to show the elements required to prove a case of imminent danger in their July 22 petition, warning that if the court allows the plaintiffs to prevail, an “avalanche” of worker suits could follow.

“If anonymous litigants could drag OSHA into court every time they disagreed with the agency’s investigatory conclusions, the agency would be severely limited in its ability to carry out its mission,” lawyers for the Labor Department said. “This court should decline Plaintiffs’ extraordinary invitation to use judicial intervention to hijack the Secretary’s enforcement discretion and priorities and second-guess OSHA’s judgment as it relates to occupational health and safety conditions at the Plant.”

The emergency petition from the three Jane Does and from Friends of Farmworkers Inc.—also known as Justice at Work—was filed against Labor Department Secretary Eugene Scalia last week at U.S. District Court for the Middle District of Pennsylvania in Scranton, Pa.

Maid-Rite produces pre-portioned frozen meat products for schools, universities, nursing homes, and military bases. A representative from the Dunmore, Pa.-based company didn’t immediately respond to a request for comment on the government’s motion. Maid-Rite isn’t a named defendant in the suit.

In its Tuesday filings, the Labor Department didn’t contest allowing the workers to proceed anonymously. A declaration from Loren Sweatt, interim head of the Occupational Safety and Health Administration, states the federal safety agency has, to date, conducted 7,300 investigations related to Covid-19 complaints and initiated 740 workplace inspections.

Private Right of Action

Bringing the case under Section 13 of the Occupational Safety and Health Act—which allows workers to bring a private right of action against the Labor Department secretary—the workers also want OSHA to issue Maid-Rite a “general duty clause” citation. The clause requires employers to provide workplaces that are free of known, potentially serious hazards that can be feasibly mitigated.

They allege that Scalia and OSHA have “arbitrarily and capriciously failed” to protect workers from imminent danger at the Dunmore plant. The complaint claims Maid-Rite failed to provide workers with cloth face coverings, configured the production line in such a way that workers can’t social distance, failed to provide adequate hand-washing facilities, created incentives for workers to work while sick, and didn’t tell workers of potential coronavirus exposure.

“Congress set an intentionally high bar to limit this private right to only the cases that are most likely to be meritorious, while avoiding the avalanche of cases that a broader right would inevitably bring,” according to the DOL motion.

Plant employees’ attorney David Muraskin called the department’s argument “ironic,” explaining that the DOL is simultaneously disputing the use of OSH Act Section 13 to bring the suit and warning that if permitted, would trigger an avalanche of litigation.

“The government is clearly annoyed that it is being held to account. Congress created a right of action and the agency can’t just waltz around it,” he said.

The case is assigned to U.S. District Judge Malachy E. Mannion.

The case is Jane Does I, II, III et al v. Scalia et al, M.D. Pa., No. 3:20-cv-01260, 7/28/20.

To contact the reporter on this story: Fatima Hussein in Washington at fhussein@bloombergenvironment.com

To contact the editors responsible for this story: Martha Mueller Neff at mmuellerneff@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com

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