Safety Law

Legal Aspects in Occupational Safety and Health

Thomas D. Schneid

• Editorial: CRC Press
• Año: 2018
• ISBN:
  9781351130974
• Edición: 1
• Categoría: Commerce
• Categoría: Gestion des ressources humaines

Safety professionals must prepare every day to safeguard their employees in the workplace. Additionally, part of every safety professional's responsibility is to safeguard their organization when a compliance inspection is conducted by federal, OSHA, or a state plan agency. Safety professionals are most organizations' onsite safety and health "expert" and should be prepared far in advance of an inspection. They should be prepared during the inspection, and ready to defend the organization after the inspection. With the increase in the monetary penalties, the impact on an organization as a result of identified violations can be substantial.

This text prepares and educates safety professionals to address every phase from strategies, to compliance, to defenses, and provides a one stop location for information to address and prepare the safety professional if/when OSHA knocks at the door.

Additionally, the safety function does not work in a vacuum. Other potential risks and potential liabilities from other laws, such as the ADA, which can impact the safety function, are also addressed. Safety professionals know that their organizations depend on their experience and expertise in their decision-making process.

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• Provides a legal prospective to prepare safety professionals for OSHA inspection and related potential risks

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• Case studies to enhance learning and state-by-state listing of applicable laws and regulations

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• Demonstrates an understanding of defense preparation and strategies for safety professionals

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• The safety professional's "go to" book for compliance and inspections

1 Constitution of the United States and Constitutional Law

Laws are not invented; they grow out of circumstance.

Azarias

Laws should be made like clothes. They should be made to fit the people they are meant to serve.

Clarence Darrow

STUDENT LEARNING OBJECTIVES

1. Acquire an understanding of the U.S. Constitution.
2. Acquire an understanding of the Amendments to the U.S. Constitution.
3. Acquire an understanding of the Powers granted by the U.S. Constitution.
4. Acquire an understanding of the Bill of Rights.
5. Acquire an understanding of U.S. Supreme Court.

The Constitution of the United States is the root for the tree of laws that governs the United States. The U.S. Constitution, drafted in 1787 by the Founding Fathers, contains seven (7) short sections, called “Articles,” and contains approximately 4,400 words. The first 10 Amendments to the Constitution, known commonly as the “Bill of Rights,” was added four years later. The U.S. Constitution established the framework for the United States including the separation of powers; checks and balances; freedom of speech, religion, and the press; right to bear arms; judicial review; and due process and equal protection. All laws and virtually everything the government does must adhere to the U.S. Constitution.

Constitutional law is the interpretation of the U.S. Constitution by the courts and the application of the rights and responsibilities granted under the U.S. Constitution to a myriad of issues. Since the writing of the U.S. Constitution and the original 10 Amendments, Congress has added only 17 additional Amendments over the past 230± years. However, Constitutional law is one of the most hotly debated areas of the law due to the fact that it impacts virtually every other area of the law; the issues are usually political or impact individual values and often address the processes and powers to make or apply other laws. The U.S. Supreme Court is the ultimate authority in interpreting the U.S. Constitution.

In the area of Constitutional law, the U.S. Constitution is the top law; however, each state also has individual state constitutions that provide another layer of rights and protections. Although many state constitutions are mirrored after the U.S. Constitution, state constitutions are often more detailed and establish a parallel state government that includes legislative, executive, and judicial branches and often a state bill of rights. Constitutional law, in essence, is the courts address the conflicts and powers granted to federal and state governments under the U.S. Constitution as well as individual state constitutions.

The U.S. Constitution establishes the executive branch (i.e. the President), the legislative branch (i.e. the Congress), and the judicial branch (i.e. the courts). In this “balance of powers,” the U.S. Supreme Court is often the final arbitrator in conflicts. The U.S. Supreme Court has the power to review federal as well as state legislation to determine whether the law is constitutional. The federal court system also has acquired jurisdiction over many other issues that are not constitutionally related such as civil cases arising under federal laws, cases involving citizens of different states, and cases involving crime, such as drug offenses, which violate federal laws.

Under Article I of the Constitution, Congress was granted the power to “lay and collect taxes,” “borrow money,” “declare war,” and “raise and support Armies” as well as “to regulate Commerce with foreign nations, and among the several States, and with Indian Tribes.” Through court decisions, each and every word within the Constitution granting powers to Congress have been defined and expanding the power of Congress to include commerce between states, establishing federal crimes, and numerous other powers within the scope of the Constitutional perimeters.

The U.S. Constitution specifically granted the President the ability to act as the commander in chief of the armed forces; the ability to appoint ambassadors to represent the United States in foreign countries; the ability to appoint judges in the federal courts; the ability to appoint officials within the executive branch (with the consent of the U.S. Senate); and to veto legislation which Congress may propose. Where the lines of power between Congress and the President has been the source of numerous court decisions ranging from the President’s power to initiate military action to the power to collect “penalties” (or taxes).

Although the Constitution provides little guidance and explicitly grants few rights in the document to the states, the concept of federalism, the idea that governmental power is shared between the state and national governments, is one of the foundational concepts of our constitutional system. In essence, the states have general authority, while the federal government possesses only the power specifically enumerated in the Constitution.

For a substantial period, the Supreme Court tended to favor state’s authority over federal authority, citing the commerce clause and other provisions of the Constitution as limiting federal authority. This concept, generally known as “dual sovereignty,” identified that the states possess one sphere of power and the federal government possesses another sphere of power and neither side could operate in the other side’s sphere of power. Over the years, the concept of dual sovereignty has lessened, and the concept of “preemption” has emerged. Under this doctrine, when the federal government enforces a law, the federal law preempts state law in any areas that potentially conflicts with federal law. However, if the federal government does not act, the state law would take precedent. However, sometimes if the federal government does not act, the state could still be barred from acting if the federal power is considered dormant.

(Preamble)

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Article I (Article 1 – Legislative)

SECTION 1

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

SECTION 2

1: The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.

2: No Person shall be a Representative who shall not have attained to the Age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen.

3: Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three.

4: When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies.

5: The House of Representatives shall chuse their Speaker and other Officers; and shall have the sole Power of Impeachment.

SECTION 3

1: The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

3: No Person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

5: The Senate shall chuse their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

6: The Senate shall have the sole Power to try all Impeachments. When sitting for that Purpose, they shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice shall preside: And no Person shall be convicted without the Concurrence of two thirds of the Members present.

7: Judgment in Cases of impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

SECTION 4

1: The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.

2: The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.

SECTION 5

1: Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be authorized to compel the Attendance of absent Members, in such Manner, and under such Penalties as each House may provide.

2: Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.

3: Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those Present, be entered on the Journal.

4: Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.

SECTION 6

1: The Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law, and paid out of the Treasury of the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

2: No Senator or Representative shall, during the Time for which he was elected, be appointed to any civil Office under the Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time; and no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office.

SECTION 7

1: All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

2: Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.

3: Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by ...