SSB 3104 (LSB 5587XC (3) 90)

SENATE FILE _____ 

BY  (PROPOSED COMMITTEE ON WORKFORCE BILL BY CHAIRPERSON DICKEY)

A BILL FOR

An Act providing for limitations on workplace inspections under the federal and state occupational safety and health laws and providing remedies and penalties.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:

    Section 1.  NEW SECTION.  88C.1  Definitions.
   For purposes of this chapter, unless the context otherwise requires:
   1.  “Employee” means the same as defined in chapter 88.
   2.  “Employer” means the same as defined in chapter 88.
   3.  “Government” means any of the following:
   a.  The state of Iowa or a political subdivision of the state.
   b.  Any agency of the state or of a political subdivision of the state, including but not limited to a department, bureau, board, authority, instrumentality, or court.
   c.  Any government official.
   d.  Any private party or third party suing under or enforcing a law, ordinance, rule, or regulation of the state or a political subdivision of the state.
   4.  “Government official” means any individual employed by the government, acting as an agent, contractor, or officer of the government, or otherwise acting pursuant to state law. “Government official” includes a private individual acting pursuant to state law.
    Sec. 2.  NEW SECTION.  88C.2  Workplace inspections —— limitation on nonemployee representatives.
   1.  Notwithstanding 29 C.F.R. §1903.8(c), or any other rule, regulation, or interpretation of the federal Occupational Safety and Health Act of 1970, no government official authorized under the occupational safety and health administration of the United States department of labor, including as authorized under the state’s workplace safety and health program authorized by chapter 88, 29 C.F.R. §1952, or any other applicable federal and state law, to conduct workplace inspections, or otherwise act as a compliance safety and health officer, shall be permitted to select an individual as a representative authorized by an employee if the individual is not an employee of the employer. However, a government official may select an individual who is not an employee of the employer as a representative if good cause is shown that all of the following apply:
   a.  The nonemployee representative possesses industry-specific and applicable expertise and experience in reducing worker illness, injury, or death, and either of the following apply:
   (1)  The nonemployee representative possesses industry-specific and applicable technical education, expertise, and experience essential to an effective and thorough physical inspection of the workplace.
   (2)  The nonemployee representative possesses specific and applicable language skills essential to an effective and thorough physical inspection of the workplace.
   b.  The nonemployee representative is unlikely to interfere with a fair and orderly physical inspection of the workplace.
   c.  The nonemployee representative is not reasonably known to be employed by, affiliated with, or under contract with a competitor of the employer and is not likely to encounter proprietary information or trade secrets of the employer during the inspection.
   2.  The credentials of a nonemployee representative shall be documented in writing and provided to the employer prior to the opening conference of the physical inspection.
   3.  An employer shall not be required to pay for the services of a nonemployee representative.
   4.  An employer may require a warrant as provided under state or federal law before permitting the entry of a nonemployee representative or continued participation of a nonemployee representative in an inspection.
    Sec. 3.  NEW SECTION.  88C.3  Remedies —— penalty.
   1.  An aggrieved employer shall first seek injunctive relief to prevent or remedy a violation of this chapter or the effects of a violation of this chapter. If injunctive relief is granted by the district court and the injunction is thereafter violated, the aggrieved employer may seek any of the following:
   a.  Compensatory damages for pecuniary and nonpecuniary losses.
   b.  Reasonable attorney fees and other litigation costs.
   c.  Any other appropriate relief.
   2.  Notwithstanding subsection 1, only declaratory relief and injunctive relief shall be available against an individual who is not a government official.
   3.  Notwithstanding section 17A.19, subsection 1, an action under this chapter may be commenced, and relief may be granted, in district court without regard to whether the aggrieved employer has sought or exhausted available administrative remedies.
   4.  A government official who knowingly violates this chapter, as determined by a preponderance of the evidence, is subject to a civil penalty of not more than ten thousand dollars per violation. The attorney general may bring an action in district court to collect the civil penalty. Civil penalties collected pursuant to this subsection shall be paid to the treasurer of state to be deposited in the general fund of the state.
    Sec. 4.  NEW SECTION.  88C.4  Additional procedures for judicial or administrative proceedings.
   An employer may assert a violation of this chapter as a claim against the government in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government or any other party.
    Sec. 5.  Section 669.14, Code 2024, is amended by adding the following new subsection:
   NEW SUBSECTION.  17.  Any claim subject to chapter 88C.
    Sec. 6.  Section 670.4, subsection 1, Code 2024, is amended by adding the following new paragraph:
   NEW PARAGRAPH.  s.  Any claim subject to chapter 88C.
EXPLANATION
The inclusion of this explanation does not constitute agreement with

the explanation’s substance by the members of the general assembly.
   This bill relates to workplace inspections under the federal and state occupational safety and health laws.
   The bill provides that no government official authorized under the federal occupational safety and health administration to conduct workplace inspections shall be permitted to select an individual as a representative authorized by an employee if the individual is not an employee of the employer. This prohibition applies notwithstanding the federal Occupational Safety and Health Act of 1970. However, a government official may select an individual who is not an employee of the employer as a representative if good cause is shown that certain criteria specified in the bill apply. The bill defines a government official as any individual employed by the government, acting as an agent, contractor, or officer of the government, or otherwise acting pursuant to state law, including a private individual acting pursuant to state law.
   If an individual who is not an employee of the employer is selected as a representative, the credentials of the nonemployee representative shall be documented in writing and provided to the employer prior to the opening conference of the physical inspection. Additionally, the employer shall not be required to pay for the services of a nonemployee representative, and the employer may require a warrant as provided under state or federal law before permitting the entry of a nonemployee representative or continued participation of a nonemployee representative in an inspection.
   The bill permits an aggrieved employer to seek injunctive relief to prevent or remedy a violation of the bill or the effects of a violation of the bill. If injunctive relief is granted by the district court and the injunction is thereafter violated, the aggrieved employer may then seek compensatory damages, reasonable attorney fees and other litigation costs, and any other appropriate relief. However, only declaratory relief and injunctive relief shall be available against an individual who is not a government official.
   An action under the bill may be commenced, and relief may be granted, in district court without regard to whether the aggrieved employer has sought or exhausted available administrative remedies.
   A government official who knowingly violates the bill, as determined by a preponderance of the evidence, is subject to a civil penalty of not more than $10,000 per violation. The attorney general may bring an action in district court to collect the civil penalty.
   An employer may assert a violation of the bill as a claim against the government, as defined in the bill, in any judicial or administrative proceeding or as defense in any judicial or administrative proceeding without regard to whether the proceeding is brought by or in the name of the government or any other party.
   Claims under the bill are exempted from the state and municipal tort claims laws.