This article looks at how the OSHA standards can be enforced while minimizing potential leads to the Immigration and Naturalization Service (INS).

Congress has delegated enforcement power to OSHA for assessing and penalizing violations of its regulations. See 29 U.S.C.A. § 659. Under this jurisdiction, OSHA has developed priorities and a procedure for handling the seven million workplaces it covers each year. Priorities, in order of OSHA’s responsiveness, include imminent danger situations, fatalities and catastrophes, complaints, referrals, follow-ups, and planned or programmed investigations. OSHA Inspections,OSHA Fact Sheet, http://www.osha.gov/OshDoc/data_General_Facts/factsheet-inspections.pdf. Penalties may range from $7,000 for each serious violation up to $70,000 for a repeated or wilful violation. 

When OSHA targets a workplace based on such priorities, it most often begins with a phone/fax investigation, through which an agent will call on an employer to describe its safety and health hazards. The employer must respond in writing within five working days. If the response is deemed adequate and satisfies the complainant, OSHA generally will not conduct the next step, an onsite inspection. If OSHA conducts an onsite inspection, it must issue a citation and proposed penalty within 6 monhts of the violation’s occurrence.

Enforcement in the Context of Working Illegal Immigrants

Given the procedures outlined above, there is a low probability that procedurally OSHA would probe into the visa status of working immigrants. First, the workplace would need to fall under one of OSHA’s listed priorities. In the nail salon industry, most would probably come in the form of a complaint, referral, or targeted investigation. If OSHA receives a complaint from an employee of a salon that is violating the HCS and also employing illegal immigrants, the employer would presumably be incentivized to respond and comply at an early stage of the process (phone/fax investigation) rather than be subject to government inspectors coming onsite. A complaint to OSHA could be one of the best ways force a salon into compliance.

Additionally, in its efforts to protect immigrant workers in particular, OSHA has pledged to keep the identity of informants confidential. Occupational Safety and Health Administration’s Efforts to Protect Immigrant Workers: Testimony Before the Subcomm. on Employment, Safety and Training of the S. Comm. on Health, Education, Labor and Pensions, (2002) (statement of John L. Henshaw, Assistant Secretary of Labor for Occupational Safety and Health). In other words, undocumented workers should not hesitate to file a complaint to OSHA for fear of being deported. Reporting an illegal worker to the INS would not be under OSHA’s jurisdiction, nor would it be congruent with the purpose of the HCS– “to ensure that the hazards of all chemicals produced or imported are evaluated, and that information concerning their hazards is transmitted to employers and employees.” 29 C.F.R. § 1910.1200(a)(1). In addition to the pledge to confidentiality, OSHA claims that it “informs all workers of their rights under OSH law, including whistleblower protection provisions under section 11(c), which forbids employers from discriminating against or discharging workers for making safety and health complaints under the OSH Act.” Testimony.

OSHA’s focus, however, has been primarily on the Hispanic immigrant population. In accordance with its focus on protecting immigrants in the workplace, in August 2001, OSHA established an Hispanic Workers Task Force, pouring additional resources into Hispanic worker-focused initiatives, including safety and health training, targeted investigations of industries employing a large number of immigrant workers, and Spanish language materials. Id.

How can you get immigrants working in nail salons to file HCS complaints?

OSHA, through its HCS, provides standards to which a majority of nail salons are bound to comply. Despite the employment of nominal independent contractors, based on criteria determining the exact economic relationship between the employer and employee, nail salon workers likely qualify as employees and are entitled to the protection of the HCS.

The best way to hold employers responsible for the HCS is for employees to file a complaint with OSHA if their employer is not in compliance with the standards. OSHA keeps its informants confidential and does not take immigrant status into account during its inspections.

To induce employees to file complaints, a targeted information program for Asian immigrant nail salon workers would be a good start. These workers need to know their rights, including OSHA’s confidentiality rules, in particular, as well as the procedure for filing a complaint (forms are conveniently available online). Lobbying OSHA for a program similar to the Hispanic Workers Task Force for Asian immigrants could draw attention to the need for an information program suited to the Asian immigrant population. Although the differences in language and culture among the various Asian constituencies is a challenge that does not have to be faced with regard to Hispanic immigrants, it is not insurmountable. Armed with information, nail salon workers would be more likely to file complaints, with OSHA acting on them according to its priorities and procedures.