Senate Bill 2373

AN ACT TO ENACT THE MISSISSIPPI WORKPLACE SAFETY ACT; TO DEFINE RELEVANT TERMS; TO PREVENT INSPECTORS AUTHORIZED UNDER THE OCCUPATIONAL SAFETY AND HEALTH ADMINISTRATION OR OTHER APPLICABLE LAW TO SELECT A NONEMPLOYEE REPRESENTATIVE EXCEPT UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE REQUIREMENTS FOR HIRING ACCEPTABLE NONEMPLOYEE REPRESENTATIVES; TO PROVIDE RELIEF FOR AGGRIEVED EMPLOYERS; TO ALLOW EMPLOYERS TO ASSERT VIOLATIONS OF THIS ACT IN JUDICIAL OR ADMINISTRATIVE PROCEEDINGS; TO INSTITUTE A FINE FOR A KNOWING VIOLATION OF THIS ACT; TO PROHIBIT USE OF SOVEREIGN IMMUNITY AS AN AFFIRMATIVE DEFENSE IN ANY ACTION PURSUANT TO THIS ACT; TO NOTE THAT THIS ACT IS SEVERABLE; TO PROVIDE FOR JUDICIAL DECISIONS NAMING THIS ACT INVALID, UNDULY BURDENSOME, OR UNCONSTITUTIONALLY VAGUE; TO ALLOW THE LEGISLATURE AND THE GOVERNOR TO INTERVENE AS A MATTER OF RIGHT IN ANY CASE WHERE THE CONSTITUTIONALITY OF THIS ACT IS CHALLENGED; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be cited as the "Mississippi Workplace Safety Act."

SECTION 2. For purposes of this act, the following words shall have the meanings ascribed herein unless the context clearly requires otherwise:

(a) "Employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States or this state or political subdivision of this state.

(b) "Employee" means personnel of an employer who works in a business of his or her employer which affects commerce.

(c) "Person" means any person employed by the government, acting as an agent, contractor or official of the government or acting under color of state law.

(d) "Government" means:

(i) The State of Mississippi or a political subdivision of the state;

(ii) Any agency of the state or of a political subdivision of the state, including a branch, department, agency, bureau, board, instrumentality, court or political subdivision of the state;

(iii) Any person or official acting under color of state law; or

(iv) Any private party or third party suing under or enforcing a law, ordinance, rule or regulation of the state or political subdivision of the state.

SECTION 3. (1) Notwithstanding 29 CFR Section 1903.8(c), or any other rule, regulation or interpretation of the Occupational Safety and Health Act of 1970, no person authorized under the Occupational Safety and Health Administration (OSHA) of the U.S. Department of Labor, or any other applicable federal or state law, to conduct inspections, or otherwise act as a Compliance Safety and Health Officer, shall be permitted to select a representative authorized by an individual who is not an employee of the employer, except where good cause has been shown that:

(a) The nonemployee representative possesses industry specific and applicable expertise and experience in reducing worker illness, injury or death:

(i) The nonemployee representative possesses industry specific and applicable technical education, expertise and experience essential to an effective and thorough physical inspection of the workplace; or

(ii) 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.

(2) The credentials of the nonemployee representative must be documented in writing and provided to the employer prior to the opening conference of the physical inspection.

(3) An employer is not required to pay for the services of any nonemployee representative.

(4) An employer may request a warrant before permitting the entry or continued participation of a nonemployee representative.

SECTION 4. An aggrieved employer must first seek injunctive relief to prevent or remedy a violation of this act or the effects of a violation of this act. If injunctive relief is granted by the court and the injunction is thereafter violated, the aggrieved party may seek the following:

(a) Compensatory damages for pecuniary and nonpecuniary losses;

(b) Nominal damages;

(d) Any other appropriate relief, except that only declaratory relief and injunctive relief shall be available against a private person not acting under color of state law.

SECTION 5. (1) An employer may assert a violation of this act 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, any private person or any other party.

(2) An action under this act may be commenced, and relief may be granted, in a court of the state without regard to whether the person commencing the action has sought or exhausted available administrative remedies.

(3) A person who knowingly violates this act, as determined by a preponderance of the evidence, is punishable by a civil penalty of an amount equal to, but not more than, Ten Thousand Dollars ($10,000.00) per violation.

(4) Sovereign immunity shall not be an affirmative defense in any action pursuant to this act.

SECTION 6. (1) It is the intent of the Legislature that every provision, section, subsection, paragraph, sentence, clause, phrase or word in this act and every application of the provisions in this act is severable from each other. If application of any provision in this act to any person, group of persons, or circumstances is found by a competent court to be invalid, the remaining applications of that provision to all other persons and circumstances shall be severed and may not be affected. All constitutionally valid applications of this act shall be severed from any applications that a court finds to be invalid, leaving the valid applications in force, because it is the Legislature's intent and priority that the valid applications be allowed to stand alone. Even if a reviewing court finds a provision of this statute to impose an undue burden in a large or substantial fraction of relevant cases, the applications that do not represent an undue burden shall be severed from the remaining provisions and shall remain in force, and shall be treated as if the Legislature had enacted a section limited to the persons, group of persons, or circumstances for which the section's application does not present an undue burden. The Legislature further declares that it would have passed this section and each provision, section, subsection, paragraph, sentence, clause, phrase or word, and all constitutional applications of this section, without regard to the fact that any provision, section, subsection, paragraph, sentence, clause, phrase or word, or applications of this act, were to be declared unconstitutional or to represent an undue burden.

(2) If this act is found by any competent court to be invalid or to impose an undue burden as applied to any person, group of persons, or circumstances, the prohibition shall apply to that person or group of persons or circumstances on the earliest date on which this section can be constitutionally applied.

(3) If any provisions of this act are found by a competent court to be unconstitutionally vague, then the applications of the provision that do not present constitutional vagueness problems shall be severed and remain in force.

SECTION 7. The Legislature, through one or more sponsors of this act duly appointed by resolution of their respective chamber, may intervene as a matter of right in any case in which the constitutionality of this act is challenged. The Governor may also intervene as a matter of right in any case in which the constitutionality of this act is challenged.

SECTION 8. This act shall take effect and be in force from and after July 1, 2024.