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46 Pepp. L. Rev. 873 (2018-2019)
Hybrid Federalism and the Employee Right to Disconnect

handle is hein.journals/pepplr46 and id is 913 raw text is: 












                          Hybrid Federalism and the

                     Employee Right to Disconnect



                                                        Paul M. Secunda*

                                Abstract

     The federal Occupational Safety and Health Administration (OSHA) ad-
ministers specific workplace and  health standards that generally and ex-
pressly preempt the entire field ofworkplace safety and health law. However,
where  such federal OSHA   standards do not exist or states have developed
their own approved OSHA  plans, OSHA  does not merely set a regulatory floor
either. A type of hybrid federalism  has been established, meaning a strong
federal-basedfieldpreemption  approach to labor and employment law issues,
but tied to a conflict preemption approach. Applying this hybrid preemption
approach  to the employee right to disconnect problem provides the best op-
portunity to address the growing  epidemic of overwork  through electronic
communications   in the United States.
     This hybrid approach  has two  essential characteristics under OSHA.
First, as a default standard, a federal general duty clause that requires all
covered  employers to maintain a workplace free of hazards that may cause
serious injury or death and cannot be feasibly abated. Second, OSHA  also
has promulgated  specific workplace safety and health standard over the last
five decades that set more detailed and specific requirements for numerous
health or safety dangers in the workplace. The specific standards occupy the
field and  all contrary state or local safety and  health regulations are
preempted.   Yet, employers can still seek a permanent variance from  any
OSHA   standard ifthey can establish that they have another method to achieve


   *  Professor of Law and Director, Labor and Employment Law Program, Marquette University
Law School. Georgetown Law School, J.D.; Harvard College, A.B. I would like to thank my research
assistant, Alicia Ratajczak, Marquette University Law School Class of 2020, for her excellent research
and writing assistance on this Article. I very much appreciate Professor Victoria Schwartz and the
Pepperdine Law Review for inviting this contribution as part of the Federalism: Past, Present, and
Future Symposium on March 23, 2018.


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