Amicus Curiae Brief — Emerson Electric Co., et al., Petitioners v. Superior Court of California, Orange County, et al.

Supreme Court briefJul 27, 2018

Ask Donna

What actually matters in this document.

Text

No. 17-1713

In The

EMERSON ELECTRIC CO., ET AL.,

Petitioners,

SUPERIOR COURT OF CALIFORNIA, ORANGE COUNTY,

ET AL.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of California

BRIEF OF THE CHAMBER OF COMMERCE

OF THE UNITED STATES OF AMERICA AS

AMICUS CURIAE IN SUPPORT OF

PETITIONERS

Steven P. Lehotsky

Hyland Hunt

Michael B. Schon

Counsel of Record

U.S. CHAMBER LITIGATION Ruthanne M. Deutsch

CENTER

DEUTSCH HUNT PLLC

1615 H St. NW

300 New Jersey Ave. NW

Washington, DC 20062

Suite 900

Washington, DC 20001

(202) 868-6915

hhunt@deutschhunt.com

QUESTION PRESENTED

Whether the Occupational Safety and Health Act

“preempts all state occupational safety and health

laws” relating to issues covered by federal standards

“unless they are included in the state plan,” as the

Ninth Circuit has held, Indus. Truck Ass’n v. Henry,

125 F.3d 1305, 1311 (9th Cir. 1997); or whether a state

may employ supplemental enforcement mechanisms

for workplace safety standards even if not included in

the state plan, as the Supreme Court of California held

in this case.

(i)

TABLE OF CONTENTS

INTEREST OF AMICUS CURIAE ............................. 1

INTRODUCTION

AND

SUMMARY

ARGUMENT ......................................................... 2

ARGUMENT ................................................................ 4

Resolving The Conflict Regarding OSH Act

Preemption Of Unapproved State Enforcement

Is Critically Important. ........................................ 4

A. The Conflict Goes to the Heart of the Act’s

Cooperative Federalism. ................................. 4

B. Congress Made Federal Approval Equally

Essential for Enforcement as for Substantive

Standards. ........................................................ 6

C. Letting the Conflict Stand Would Impair

Important Interests Protected by Federal

Review. ............................................................. 9

II. The Negative Consequences Of The California

Supreme Court’s Decision Extend Far Beyond

Worker Safety Regulation In California. ........... 12

A. The Decision Imperils Other Cooperative

Federalism Programs in California. ............. 12

B. The Decision Invites Similar Claims under

Other States’ Broad Unfair Competition

Statutes. ......................................................... 15

CONCLUSION .......................................................... 17

iii

TABLE OF AUTHORITIES

CASES

Darcangelo v. Verizon Comm., Inc., 292 F.3d 181

(4th Cir. 2010) ........................................................ 16

DirecTV, Inc. v. Imburgia, 136 S. Ct. 463 (2015) ..... 12

Gade v. Nat’l Solid Wastes Mgmt. Ass’n, 505

U.S. 88 (1992) ................................................. 5, 6, 17

Gurrobat v. HTH Corp., 323 P.3d 792 (Haw.

2014) ....................................................................... 16

Indus. Truck Ass’n v. Henry, 125 F.3d 1305 (9th

Cir. 1997) .................................................................. 5

Kelly v. USS-POSCO Indus., 101 F. App’x 182

(9th Cir. 2003) .......................................................... 9

Landgraf v. USI Film Prods., 511 U.S. 244

(1994) ...................................................................... 10

Marentette v. Abbott Labs., 886 F.3d 112 (2d Cir.

2018) ....................................................................... 13

New York v. United States, 505 U.S. 144 (1992) ...... 13

Quesada v. Herb Thyme Farms, Inc., 361 P.3d

868 (Cal. 2015) ....................................................... 13

STATUTES

5 U.S.C. § 553 .............................................................. 6

29 U.S.C.

§ 653(b)(4) ............................................................... 12

§ 667(b) ........................................................... 4, 7, 14

§ 667(c) ................................................................... 14

§ 667(c)(1) ................................................................. 7

§ 667(c)(2) ........................................................... 7, 11

§ 667(c)(4) ................................................................. 7

33 U.S.C.

§ 1342 ..................................................................... 14

§ 1342(b) ................................................................. 13

42 U.S.C.

§ 7410(a) ........................................................... 13, 14

§ 7410(k) ........................................................... 13, 14

§ 7413 ..................................................................... 14

§ 7475(d) ........................................................... 13, 14

§ 7661a ............................................................. 13, 14

Cal. Bus. & Prof. Code § 17200 ................................. 15

Cal. Lab. Code

§ 6319(c) ................................................................... 9

§ 6319(d) ................................................................... 9

§§ 6427-6431....................................................... 9, 11

Or. Rev. Stat.

§ 646.608(1)(u)........................................................ 15

§ 646.642 ................................................................ 15

Tenn. Code Ann.

§ 47-18-104(b)(27) .................................................. 15

§ 47-18-108(c) ......................................................... 15

REGULATIONS

29 C.F.R.

§ 1902.11(d) .......................................................... 6, 9

§ 1903.15(d) .............................................................. 9

§ 1953.3(b) ................................................................ 8

§ 1953.6 .............................................................. 8, 11

§ 1953.6(c) ............................................................ 6, 9

OTHER AUTHORITIES

Cary Silverman & Jonathan L. Wilson, State

Attorney General Enforcement of Unfair or

Deceptive Acts and Practices Laws: Emerging

Concerns and Solutions, 65 U. KAN. L. REV.

209 (2016) ............................................................... 15

Supplement to California State Plan, 62 Fed.

Reg. 31,159 (June 6, 1997)....................................... 8

U.S. Dep’t of Labor, Occupational Safety &

Health Admin., State Plans ................................... 15

INTEREST OF AMICUS CURIAE1

The Chamber of Commerce of the United States

of America (“Chamber”) is the world’s largest business

federation. The Chamber represents 300,000 direct

members and indirectly represents more than three

million businesses and professional organizations of

every size, in every sector, and from every geographic

region of the country. An important function of the

Chamber is to represent the interests of its members

in matters before the courts, Congress, and the

Executive Branch.

To that end, the Chamber

regularly files amicus curiae briefs in cases that raise

issues of concern to the Nation’s business community.

The Chamber’s membership includes businesses

engaged in commerce in each of the 50 states, many of

which have a nationwide reach. Because its members

are subject in varying degrees to a wide range of

federal regulatory schemes that expressly preempt

state and local laws, the Chamber has a keen interest

in ensuring that those members operate in a

transparent regulatory environment with clearly and

consistently defined rules and equally well-delineated

consequences for failure to adhere to them.

The California Supreme Court decision imperils

that interest. Congress authorized states to replace

federal worker safety standards only through

obtaining federal approval of the rules delineated

1 Counsel of record for all parties received timely advance

notice of the intent to file this brief and consented to the filing of

the brief. S. Ct. R. 37(2)(a). No counsel for any party authored

this brief in whole or in part, and no person or entity other than

amicus curiae or its counsel made a monetary contribution

intended to fund the brief’s preparation or submission.

(1)

within a state plan—expressly including both

substantive standards and enforcement mechanisms.

Yet California’s highest court has instead issued an

open-ended invitation to states to add additional

layers of rules and escalating enforcement

mechanisms without any federal oversight. In doing

so, the California Supreme Court not only diverges

from Ninth Circuit precedent involving precisely the

same issue, but also invites other states to follow suit,

putting at risk the Occupational Safety and Health

Act’s (“OSH Act”) promise of a unitary, federally

approved worker safety regime in any given state.

INTRODUCTION

AND SUMMARY OF ARGUMENT

In holding that approval of a state plan by the

Secretary of Labor under the OSH Act does not limit

how local prosecutors can wield other state law

provisions (preexisting or otherwise) to bootstrap

additional penalties on top of those set forth in the

approved plan, the California Supreme Court created

a square conflict with the Ninth Circuit, which on its

face leads to an untenable situation in the Nation’s

largest economy.

The result reached is indefensible. Only those

provisions that are set forth in a state plan and

approved by the Secretary of Labor serve to displace

federal standards and avoid federal preemption. It

simply does not follow, as the California Supreme

Court would have it, that once a federally approved

state plan exists, local prosecutors (or creative

plaintiffs) can pile on any, and every, potential

additional enforcement mechanism under state law

and remain clear of the preemptive scope of the OSH

Act.

And resolving the conflict is critically important

to the Nation’s businesses, even though—or perhaps

because—“enforcement,” rather than “substance,” is

at stake. Congress placed substantive standards and

enforcement on an equal footing in the OSH Act with

respect to state authority and federal preemption.

With good reason. From the perspective of regulated

businesses, “substance” and “enforcement” are not two

distinct, hermetically sealed bodies of law, but rather

parts of a single regulatory continuum. The sort of

unpredictable and unforeseen regulatory changes

invited by the decision below, adopted outside of any

transparent administrative process and without

federal oversight, are equally disruptive regardless of

how they are labeled.

Even if the impact of the conflict between the

Ninth Circuit and the California Supreme Court could

be cabined to worker safety regulation within

California alone, this Court’s review is warranted. A

holding eviscerating federal oversight of worker safety

rules, and permitting unbounded state regulation,

within the Nation’s largest economy—in direct conflict

with the Ninth Circuit—is consequential enough. See

Pet. 31-32. But the effects of the decision, if allowed

to stand, will be felt beyond worker safety issues and

California’s borders.

This case thus provides the Court with an

excellent opportunity to resolve a conflict in one of the

Nation’s most important economies; address the

preemptive force of the OSH Act when there is a state-

approved plan governing private employers (as there

is not only in California, but also in 21 other states);

and, ultimately, restore Congress’s mandate that

worker safety regulations and their enforcement

mechanisms be approved by the Secretary of Labor so

as to avoid undue burdening of interstate commerce.

ARGUMENT

Resolving The Conflict Regarding OSH

Act Preemption Of Unapproved State

Enforcement Is Critically Important.

The California Supreme Court’s holding

effectively erased the federal part of the federal-state

balance envisioned by Congress when it based the

OSH Act on a “cooperative federalism” model. Also

cast aside by the decision below is the Act’s

foundational premise that employers would be subject

to only one delineated and self-contained worker

safety regime in any given state—whether provided by

federal or state regulations (through the federally

approved state plan). Thus, although the California

Supreme Court deemed the subject of this case to be

“mere” enforcement measures, Pet. App. 38a n.6, the

importance of the conflict it created with the Ninth

Circuit far exceeds the magnitude of the particular

penalties sought here.

The Conflict Goes to the Heart of the

Act’s Cooperative Federalism.

As Petitioners explain (Pet. 7-8) approval by the

federal Secretary of Labor (“Secretary”) is the

necessary gateway to state enforcement of worker

safety standards when a federal standard has been

promulgated. 29 U.S.C. § 667(b). In the absence of

federal approval, “the OSH Act pre-empts all state

law” regulating worker safety, Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 107 (1992)

(plurality).

Before now, the common—and

commonsense—understanding was that federal

preemption was lifted only for state laws that actually

passed through the federal-approval gateway. See

Indus. Truck Ass’n v. Henry, 125 F.3d 1305, 1311 (9th

Cir. 1997).

But the California Supreme Court

upended that understanding—and created a square

conflict with the Ninth Circuit—by holding that after

the gate has been opened once, it disappears forever.

Under the logic of the ruling below, a local authority

may revise worker safety measures at will through

add-on enforcement actions, free of federal oversight

and administrative process.

Because this holding authorizes local prosecutors

to amend California’s worker safety regime and its

carefully graduated penalties (see Pet. 10-11), without

even attempting the administrative process to

integrate changes into the state plan (much less

submitting the changes for federal approval), it

effectively writes cooperative federalism out of the

statute. As the Ninth Circuit observed when reaching

the opposite conclusion on the same issue, “it would

make the state plan approval requirement superfluous

if a state could pick and choose which occupational

health and safety regulations to submit to OSHA.”

Indus. Truck Ass’n, 125 F.3d at 1311; accord Gade, 505

U.S. at 100-101 (If “a State could supplement federal

regulations without undergoing the § 18(b) approval

process, then the protections that § 18(c) offers to

interstate commerce would easily be undercut.”).

The ruling below also transforms the unitary

regime promised by the OSH Act—supplied by either

the federal regulations or the federally approved

regulations contained within the state plan—into a

fractured hodgepodge of whatever claims creative

prosecutors can dream up in the moment, entirely

outside the state plan. See Gade, 505 U.S. at 99

(“Congress intended to subject employers and

employees to only one set of regulations be it federal

or state, and … the only way a State may regulate …

is pursuant to an approved state plan that displaces

the federal standards.”). This ad-hoc accumulation of

worker safety rules is all the worse because it shortcircuits the administrative process mandated by the

OSH Act and its associated opportunity for public

comment. See 5 U.S.C. § 553; 29 C.F.R. § 1902.11(d)

(describing opportunity for public comment on

approval of state plans); id. § 1953.6(c) (same for stateplan amendments).

Congress Made Federal Approval

Equally Essential for Enforcement

as for Substantive Standards.

Resolving the conflict between the Ninth Circuit

and the California Supreme Court is no less important

whether dealing with substantive safety standards or

the consequences for failure to comply.2 However one

characterizes the subject matter, the conflict cuts to

the heart of the OSH Act’s federal-state balance. The

Act is replete with indications that Congress intended

2 And, as Petitioners point out, the California Supreme

Court made clear that its reasoning applied with equal force to

substantive standards. Pet. 25.

an equally robust federal role for the development and

implementation of enforcement measures as for

substantive standards.

And the Secretary’s

administrative practice confirms it.

First, Congress expressly required states to seek

approval of both substantive standards and

enforcement measures. “Any State which, at any time,

desires to assume responsibility for development and

enforcement therein of occupational safety and health

standards relating to [a federal standard] shall submit

a State plan for the development of such standards

and their enforcement.” 29 U.S.C. § 667(b) (emphasis

added).

Second, Congress specifically required the

Secretary to review aspects of proposed state plans

that address enforcement measures. To approve a

plan, the Secretary must ensure that the plan specifies

the “agency or agencies” responsible for administering

the state plan, and provides “satisfactory assurances

that such agency or agencies have or will have the

legal authority and qualified personnel necessary for

the enforcement of [the] standards.”

29 U.S.C.

§ 667(c)(1), (4) (emphasis added).

The Secretary also must determine that the

“standards (and the enforcement of which standards)

are or will be at least as effective in providing safe and

healthful employment and places of employment as

the [federal standards], and which standards, when

applicable to products which are distributed or used in

interstate commerce, are required by compelling local

conditions and do not unduly burden interstate

commerce.” Id. § 667(c)(2) (emphasis added). Under

this provision, both substantive standards and

enforcement measures are subject to federal review to

ensure that federal interests (encompassing both

protecting worker safety and avoiding undue burdens

on interstate commerce) are safeguarded. See, e.g.,

Supplement to California State Plan, 62 Fed. Reg.

31,159, 31,178-179 (June 6, 1997) (reviewing the

impact of enforcement measures on interstate

commerce, although declining to issue formal

interpretation that the test applies to enforcement

measures, 62 Fed. Reg. at 31,162).

Finally, administrative practice confirms the

robust federal role in scrutinizing and approving

enforcement measures, whether presented as part of

the initial plan, or as later amendments (neither of

which, of course, happened here).

See 29 C.F.R.

§ 1953.3(b) (requiring submission of state plan

amendments to the Occupational Safety and Health

Administration (“OSHA”); id. § 1953.6 (OSHA review

of plan amendments). And OSHA has reviewed and

addressed public comments regarding state plan

amendments to alter enforcement mechanisms. See,

e.g., 62 Fed. Reg. at 31,178 (noting the “most extensive

comments”

regarding

state-plan

amendments

addressed enforcement measures). But where, as

here, no amendment to the state plan was ever

submitted, there is no mechanism for this public input

and federal review to take place.

For all of these reasons—as the Ninth Circuit has

recognized, in conflict with the decision below—a state

law that does not fall within the savings clause (which

is inapplicable here, see Pet. 7), must be included

within an approved state plan to avoid preemption

under the OSH Act, regardless of whether it is deemed

a “substantive” or “enforcement” measure. See Kelly v.

USS-POSCO Indus., 101 F. App’x 182 (9th Cir. 2003).

Letting the Conflict Stand Would

Impair

Important

Interests

Protected by Federal Review.

Congress’s decision to treat substantive

standards and enforcement mechanisms alike in the

approval process for state plans was sound. Both

worker safety rules and the penalties for noncompliance warrant public participation and federal

approval before lifting the otherwise preemptive force

of the comprehensive set of federal standards under

the OSH Act. Those federal standards not only detail

a multitude of worker safety regulations, see Pet. 6,

but also provide differentiated penalties for types of

violations, and distinguish between “serious” and

“willful” or “repeated” violations, 29 C.F.R.

§ 1903.15(d).

California’s approved state plan

similarly offers a comprehensive and reticulated

framework of rules and their consequences, where the

penalty imposed reflects the nature of the violation

and is constrained by factors set out by statute. See,

e.g., Cal. Lab. Code §§ 6427-6431 (setting distinct

maximum penalties for serious, non-serious, repeated

or willful, failure-to-correct, or recordkeeping

violations); id. § 6319(c)-(d) (factors for determining

penalty amounts). And this entire package of rules

and penalties reflects the balance reached by

workplace safety regulators and affected parties as

part of a transparent approval process. See 29 C.F.R.

§§ 1902.11(d), 1953.6(c).

The bootstrapping of civil penalties for unfair

competition and false advertising onto violation of a

worker safety regulation, on the other hand, is none of

these things—it is neither graduated, part of a

comprehensive planning process, nor transparent.

Rather, it involves potentially “massive” penalties,

Pet. App. 67a, imposable based on strict liability and

regardless of the severity of an employer’s violation or

its good faith efforts. Employers need to know the

scope and force of the regulatory universe they operate

in. And—until now—they reasonably expected, based

on clear statutory text, that the relevant universe was

contained within the state plan.

Reliance interests are formed not only in

substantive rules, but also in enforcement

mechanisms. Transparency in both sides of the

regulatory coin allows employers not only to ensure

compliance but also to protect against risks. As the

Court has recognized in other contexts, the “extent of a

party’s liability, in the civil context as well as the

criminal, is an important legal consequence that

cannot be ignored,” and unpredictable changes can be

unfair. Landgraf v. USI Film Prods., 511 U.S. 244,

283-284 (1994) (addressing retroactivity).

For a business attempting to comply with myriad

regulatory

requirements,

unforeseeable

and

unpredictable changes in enforcement mechanisms

can be just as disruptive as changes to substantive

obligations, particularly when those changes

represent such a major departure from the approved

state plan. Clarity and predictability are thus critical

for all rules governing worker safety, whether deemed

substantive or enforcement.

Preserving the federal role in reviewing and

approving state plan amendments is particularly

important for enforcement measures. As an initial

matter, it is the federal agency’s function to ensure

that additional enforcement—like the massive

potential additional penalties at issue here, that are in

theory imposable with no finding of a “willful” or

“serious” violation—does not create an undue burden

on interstate commerce. See 29 U.S.C. § 667(c)(2).

States are necessarily going to be less attuned to the

exigencies of interstate commerce.

Moreover, the federal agency is best positioned to

address whether the possibility of cumulative

financial penalties for every violation, independent of

its severity, could distort state enforcement efforts. A

careful articulation of graduated penalties based on

the severity of violations, as exists in California’s

actual state plan, see Cal. Lab. Code §§ 6427-6431, is

very different from a wholly discretionary penalty

system where the enforcers may keep up to half of the

penalties they recover. The former system prioritizes

enforcement to where it is needed most; the latter

potentially incentivizes enforcement based on other

considerations, like an employer’s financial resources.

Finally, the necessity of obtaining federal

approval ensures there is a process for public input,

which is critical to airing some of the concerns

described above that the federal agency is bestpositioned to address. See 29 C.F.R. § 1953.6. The

federal administrative process preserves clarity by

limiting the contours of state regulatory authority,

because only the approved rules and penalties are

saved from federal preemption. In negating the

requirement of federal approval, and not even

requiring a state process to amend the state plan, the

decision below eliminates the predictability and

clarity that the OSH Act was designed to institute

with respect to the rules governing worker safety.3

Resolving the intra-state conflict on this issue

through certiorari review is essential. At a minimum,

the Court should seek the views of the United States,

given the Department of Labor’s expertise in

administering the process for federal approval of state

plans.

II.

The Negative Consequences Of The

California Supreme Court’s Decision

Extend Far Beyond Worker Safety

Regulation In California.

The

Decision

Imperils

Other

Cooperative Federalism Programs

in California.

California’s resistance to federal preemption did

not start with the OSH Act. See, e.g., DirecTV, Inc. v.

3 With respect to the violations alleged in this case, the civil

penalties allowed under California’s federally approved plan are

already substantial. See Pet. 10-11. And they are not the only

consequences Petitioners face for the tragedy that occurred.

Some employees faced criminal charges, as contemplated by the

worker safety statute’s referral mechanism, Pet. 11, and the OSH

Act’s savings clause, 29 U.S.C. § 653(b)(4), allows for the

possibility of separate tort actions to compensate the victims, Pet.

7 n.1. What the OSH Act does not allow, however, is for local

prosecutors to bootstrap additional civil liability for the same

violations, by use of a statute of general applicability that was

never presented as part of the state plan approval process.

Imburgia, 136 S. Ct. 463, 467 (2015) (describing

California Court of Appeal decision “conced[ing] that

this Court … had held that the Federal Arbitration Act

invalidated California’s rule” but nonetheless

concluding that this preemption “did not change the

result” regarding the unenforceability of class action

waivers). This case is thus just one in a string of cases

in which California courts have demonstrated hostility

to federal preemption. See, e.g., Quesada v. Herb

Thyme Farms, Inc., 361 P.3d 868 (Cal. 2015) (holding

California unfair competition and false advertising

law claims for allegedly false “organic” label not

preempted by the Organic Food Production Act);

compare Marentette v. Abbott Labs., 886 F.3d 112 (2d

Cir. 2018) (holding similar California and New York

claims preempted by the Act).

This decision is thus likely to encourage similar

rulings and have spillover effects disrupting other

federal regulatory regimes. Many federal programs

embody “cooperative federalism” mechanisms like the

OSH Act, “offer[ing] States the choice of regulating …

according to federal standards or having state law preempted by federal regulation.” New York v. United

States, 505 U.S. 144, 167 (1992). For example, under

provisions of the Clean Air Act, states develop their

own permitting programs that are subject to federal

approval. E.g., 42 U.S.C. §§ 7410(a), (k); 7475(d);

7661a. Federal regulations apply where EPA has not

approved a state’s program. Id. Similarly, states may

obtain permitting authority under the Clean Water

Act in lieu of federal permitting agencies. 33 U.S.C.

§ 1342(b). As under the OSH Act, the state programs

must be as effective as the federal program, satisfy

other federal considerations, and undergo public

comment. Compare 29 U.S.C. § 667(c) (specifying

state plan under OSH Act must be at least as

“effective” as federal standards, while avoiding undue

burden on interstate commerce), with 42 U.S.C.

§§ 7410(a), (k); 7475(d); 7661a; and 33 U.S.C. § 1342.

And, once the state plan is approved, the standards

within that plan become the applicable law under the

relevant federal act. Compare 29 U.S.C. § 667(b), with

42 U.S.C. § 7413 (describing federal enforcement of

state plans with respect to emissions regulated by the

Clean Air Act).

Given the narrow approach taken by the

California Supreme Court to federal preemption, the

federal-state balance in these other areas of

cooperative federalism is at risk of disruption, too, if

the reasoning of the California Supreme Court’s

decision goes unchecked. This Court has before seen

fit to intervene to resolve federal preemption questions

from California even where there was no split. See

Pet. 32 (collecting cases). Here, the need for review is

more pressing. Not only will failure to act tempt the

California Supreme Court to disregard the preemptive

force of federal law in other areas, but the stark

disagreement between federal and state courts within

California on how to answer the precise preemption

question involved will likely yield a host of costly

ancillary litigation.

The Decision Invites Similar Claims

under Other States’ Broad Unfair

Competition Statutes.

Beyond California, the decision invites a

proliferation of add-on rules, wholly outside of the

deliberate process for federally approved state plans,

in the other states with approved state plans

governing private employers. Nearly half of states

have such plans (22 states, including California). See

U.S. Dep’t of Labor, Occupational Safety & Health

Admin., State Plans.4

Several other states with state plans have

statutes that, like California’s unfair competition law,

Cal. Bus. & Prof. Code § 17200, can be enforced by

public officials and impose large civil penalties for

broadly worded prohibitions on “unfair” business

practices or competition, without limitation to

consumer deception.

See, e.g., Or. Rev. Stat.

§ 646.608(1)(u) (prohibiting “any other unfair or

deceptive conduct in trade or commerce”); id.

§ 646.642 (penalty); Tenn. Code Ann. § 47-18104(b)(27) (prohibiting “any other act or practice

which is deceptive to the consumer or to any other

person” and vesting enforcement of catch-all in public

officials); id. § 47-18-108(c) (penalty). And it is

becoming increasingly common for state prosecutors to

use such statutes to seek additional penalties for

conduct that is already regulated under federal

statutes. See Cary Silverman & Jonathan L. Wilson,

State Attorney General Enforcement of Unfair or

Deceptive Acts and Practices Laws: Emerging

4 Available at https://www.osha.gov/dcsp/osp/index.html.

Concerns and Solutions, 65 U. KAN. L. REV. 209, 224240 (2016) (describing unfair-practice cases brought

by prosecutors regarding conduct regulated by the

Food and Drug Administration, the Centers for

Medicare and Medicaid Services, and other federal

agencies).

In at least a few instances, such broadly-worded

statutes have already formed the basis of claims

arising out the employment relationship. See, e.g.,

Gurrobat v. HTH Corp., 323 P.3d 792, 812-14 (Haw.

2014) (holding that employee could state an unfair

competition claim based on an employer not

distributing “service charge” receipts in full to its

employees); cf. Darcangelo v. Verizon Comm., Inc., 292

F.3d 181 (4th Cir. 2010) (addressing ERISA

preemption of employee’s claim under Maryland

unfair and deceptive trade practices statute based on

employer’s alleged improper use of employee’s medical

records). It is no stretch to suppose that the California

Supreme Court’s decision will prompt claims in other

States as well, seeking penalties for occupational

safety claims that diverge from what is outlined in the

federally approved state plan, without any of the

safeguards attendant to state-plan approval.

Allowing the conflict of authority to persist in

California is bad enough, given California’s role in the

national economy and the millions of workers

employed within the state. See supra; Pet. 31-32. And

further percolation will only make the situation worse.

Creative lawsuits that should be preempted will be

filed in state court, and costly unnecessary litigation

will ensue to prove as much. The OSH Act was

designed to eliminate this sort of piecemeal, ad hoc

specification and enforcement of occupational safety

rules. The Act sets forth a simple rule that balances

state and federal authority: “a State may not enforce

its own occupational safety and health standards

without obtaining the Secretary’s approval,” Gade,

505 U.S. at 99 (plurality); id. at 112 (Kennedy, J.,

concurring in judgment). Absent this Court’s review,

the decision below will eviscerate that bright-line rule

and the clarity that should come with it, with farreaching negative consequences for the Nation’s

employers.

CONCLUSION

The petition should be granted. At a minimum,

the Court should request the views of the United

States.

Respectfully submitted.