VIEWPOINT | OSHA report highlights why Seventh Amendment deserves High Court's respect

Guest column by Josh Robbins, Pacific Legal Foundation

On Nov. 10, this publication reported that the federal Occupational Safety and Health Administration had stepped up its enforcement efforts on South Dakota workplaces. Along with these increased enforcement efforts came increased fines for failure to comply with OSHA’s safety mandates. On the surface, there probably seems to be little objectionable about government efforts to ensure safer workplaces. But a closer look at the way OSHA enforces workplace safety laws reveals a fundamental constitutional problem. And in our constitutional democracy, the ends never justify the means. 

OSHA was created by Congress in 1970 “[t]o assure safe and healthful working conditions for working men and women.” Congress granted the agency unprecedented authority to unilaterally levy enormous fines against employers for violations of OSHA’s workplace safety rules. For instance, OSHA recently fined an individual South Dakota business over $100,000 for workplace safety violations. And since 2015, OSHA has issued 41 fines in South Dakota of $40,000 or more.

These are the kinds of penalties one would expect to see in significant criminal cases. For example, a criminal violation of the Endangered Species Act carries a maximum fine of $50,000. But here, OSHA’s fines are imposed without a jury and outside of a court. 

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In contrast, consider that the minor government citations we are all familiar with — traffic tickets — can be challenged in court. After you receive a ticket directly from a police officer for speeding, running a stop sign, or some similar offense, you — probably begrudgingly — pay the relatively small fine to avoid further hassle and expense. But you could choose to fight the ticket in court. There, you can present evidence and arguments to a neutral judge and the government must do the same to prove its case against you. And if the traffic offense is serious enough, the case is tried before a jury. 

None of that is available to employers who receive an OSHA “ticket” imposing tens of thousands of dollars in fines.

Instead, an employer who wishes to contest an OSHA violation has his case referred not to a court, but to the Occupational Health and Safety Review Commission. The case is heard by one of the Commission’s administrative law judges (“ALJ”) and the ALJ’s decision can be reviewed by the Commission if a member — not the business owner — decides to take a second look. Only after all this occurs can an employer seek relief from a federal court, which must be deferential to the decision of the Commission.

This process is possible because of the Supreme Court’s decision in Atlas Roofing v. OSHA. There, an employer asserted its Seventh Amendment right to have a jury decide whether it was liable for an OSHA fine. The employer’s argument was simple: When the government tries to seize your money (i.e. property) in the form of a fine, you are entitled to a jury trial. A jury was required in such cases under English common law prior to the founding, and that right was preserved in the Seventh Amendment. 

But the Supreme Court decided that Congress could legislate around the Seventh Amendment by creating a new “public right” and assigning its adjudication to an executive branch agency. One might ask what is a “public right?” Atlas Roofing unhelpfully describes public rights as those “where the Government is involved in its sovereign capacity under an otherwise valid statute creating enforceable public rights.” The explanation is circular. And the Supreme Court has never successfully explained how Congress’s invented public rights eliminate your right to have a court — with a jury and neutral judge — determine whether the government can impose a fine.  

Predictably, Atlas Roofing led to an explosion in administrative agencies imposing fines on Americans without the involvement of a court or jury. Now, as a matter of course, federal agencies investigate you for potential violations of the law, bring charges against you, adjudicate those allegations themselves, and then impose a significant fine. The courts, which should have been hearing such cases in the first instance, are relegated to reviewing the decision after the fact.   

But some relief is in sight. On Nov. 29, 2023, the U.S. Supreme Court heard oral argument in Jarkesy v. SEC. George Jarkesy was found by the U.S. Securities and Exchange Commission — without a jury and outside of a court — to have committed securities fraud and was assessed, among other penalties, a fine of $300,000. He challenged the constitutionality of the SEC enforcement proceedings, in part, on the grounds that he was denied his right to a jury trial. Although it’s impossible to predict the outcome from the oral argument, all nine Justices were focused on the jury trial question.

Whether in Jarkesy or a future case, the Supreme Court must revisit and overturn Atlas Roofing and restore Americans’ right to a jury trial when the government seeks to impose punitive fines on them. Only then will South Dakota employers — and all Americans — have their proper day in court.

Josh Robbins is an attorney specializing in separation of powers at Pacific Legal Foundation, a nonprofit public interest legal organization that fights for limited government, property rights and individual rights.