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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. 873

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