Training Provides Tools for Fighting Employer Retaliation
All workers expect that they have a right to a safe work environment, and that when they report unsafe conditions or workplace hazards, their employer will fix the problem. Most do not expect to be fired, laid off, transferred or demoted for exercising their workplace rights. Dealing with retaliation by bosses was the subject of an Occupational Safety and Health Anti-Retaliation Training by Worksafe January 22 in San Mateo.
Worksafe is a California-based organization dedicated to eliminating all types of workplace hazards. The organization advocates for protective worker health and safety laws and effective remedies for injured workers, and watchdogs government agencies to ensure they enforce the laws. Worksafe also engages in campaigns in coalition with unions, workers, community, environmental and legal organizations, and scientists to eliminate hazards and toxic chemicals from the workplace and provides legal training, technical assistance, and advocacy for organizations and programs that offer legal services for low wage and immigrant workers.
Jora Trang, Managing Attorney for Worksafe, highlighted some of the forms of retaliation experienced by workers when they attempt to report an injury, illness or hazard to their supervisor or to file a complaint with management or a government agency. She asked for examples from the workshop attendees and explained the process of filing a complaint about retaliation to the state’s Division of Labor Standards Enforcement (DLSE). Trang explained that under health and safety laws in California, it is unlawful for an employer to retaliate against a worker for exercising their rights or for disclosing information about an employer’s unsafe working conditions, or to fire a worker for refusing to work in an unsafe work environment. She said other examples of retaliation by employers include blacklisting, poor evaluations or write-ups, loss of seniority, and being forced to work a less desirable schedule.
Workers Have a Legal Right to File Jobsite Safety Complaints
Labor Commissioner attorney Michael Smith said that Cal OSHA investigates employee’s complaints about unsafe or unhealthy working conditions and the Labor Commissioner investigates claims of retaliation that occur after a worker complains about jobsite safety issues. He said complaints are protected when a worker has a “reasonable belief” that a condition is unsafe or unhealthy—the worker does not have to be correct in believing that a workplace condition is unsafe and should not face retaliation. Smith cautioned that in order to refuse to perform work that is believed to be unsafe, the work must actually create a “real and apparent hazard” for the refusal to perform the work to be protected under the Labor Code. Examples could include working in a confined space with no ventilation, being told to climb a ladder that is unsecured, handling toxic waste with the proper protective gear, or being exposed to dangerous chemicals that are improperly stored.
Smith said complaints about retaliation should be to the point, but cite dates and times and specifics about the type of retaliation. Workers, and their advocate or union representative, should develop a chronology of events and collect paperwork, e-mails and any records showing the sequence of events from the complaint to the retaliation. If there are witnesses to any part of the retaliation, you should get their contact information so that DLSE can interview them, as well as written statements, if possible, he said. Workers can also file lawsuits in addition to complaints to the state agencies.
Immigrant Workers Face Retaliation
Ruth Silver-Taube of the Katharine & George Alexander Community Law Center at the Santa Clara University School of Law talked about employer retaliation against immigrant workers and some of the remedies that workers can seek when filing complaints about retaliation. She said it is rare to win punitive damages against an employer and that typically the remedies include re-instatement, back pay, reimbursement of medical costs, removal of adverse reports from personnel files, and the posting of a notice acknowledging the safety hazard.
On immigration-related issues, Silver-Taube said undocumented immigrant workers have the same rights as those with documents. She said a major issue is that undocumented immigrants are afraid to file complaints about safety hazards. Many fear they will be deported or face other legal problems. Others are threatened with firing or having their pay withheld by unscrupulous employers. She said the DLSE does not question workers about their immigration status, and cited a new section of the Labor Code that makes it unlawful for an employer to engage in an “unfair immigration related” practice against a worker in retaliation for exercising a legal right—engaging in a protected activity such as reporting unsafe workplace conditions. The “unfair immigration related” practices by employers include asking for different documents than those required under federal immigration laws or using the E-verify system in a way that isn’t required by the federal law, as well as threatening to contact or contacting federal immigration authorities. The retaliation and threats can have a “chilling effect” on workers who then may ignore safety hazards and suffer injuries.
San Mateo County Central Labor Council Executive Secretary-Treasurer Shelley Kessler noted that many undocumented workers are afraid to go to an attorney for help. She asked if they could take action with the help of a union representative or business agent. Silver-Taube said her legal clinic offers free advice, as does the Legal Aid Society - Employment Law Center, and said the employee should never go to an hourly attorney but find a lawyer who would take the case on a contingency basis or work through a non-profit law center. “If you belong to a union, talk to the business rep,” she said. “The union also has the institutional memory because they know if a safety violation or retaliation has happened before.”
Worksafe staff attorney Nicole Marquez discusses an example of a case with members of IBEW 617. Photo by Steven Booker.
Safety Disincentive Programs
Workers also experience programs, policies and practices at work that discourage them from reporting injuries, illnesses, and unsafe workplace conditions. Worksafe staff attorney Nicole Marquez talked about some of the “Safety Disincentive Programs” employers use that are promoted as fun activities or rewards, like “Safety Bingo” and “Safety Breakfasts” that “reward” employees or their teams for having no safety violations reported for a month or a quarter. She cited an example of an employer that offered a barbeque to celebrate a safe workplace, and said workers are often afraid to complain about unsafe conditions because they’ll lose the special day. She said peer pressure can keep a worker from complaining, and this creates a workplace culture in which peer pressure as well as management pressure add to an overall environment that stifles injury and illness reporting.
Marquez said that the federal OSHA has declared the employer programs that discourage reporting injuries and unsafe working conditions illegal, and Cal OSHA should do the same. She said it is also illegal for employers to discipline an employee for getting hurt on the job.
Workshop participants broke into small groups to study examples of cases and talk about their own experiences, and brainstorm about solutions. One participant described programs that reward workers for having no negative safety reports as “a bribe to keep your mouth shut.” She said workers understand the intent of the programs, but there is pressure to not complain or say anything. Another participant suggested flipping the programs around so that employees are rewarded when they report hazards, giving workers an incentive to create a safe working environment. Programs that involve workers in finding ways to eliminate hazards were also proposed as alternatives to the “Safety Disincentive Programs.”
Another participant commented that some people don’t report workplace injuries because the Workers’ Compensation system is so bad and they have seen other workers go through hell dealing with Workers’ Comp. Marquez said all the issues are interconnected—the right to see your own doctor, the Workers’ Comp system, and being able to get access to quality health care.
The Worksafe training in San Mateo at the International Brotherhood of Electrical Workers Local 617 union hall was one of four held around the state to educate worker representatives and legal aid attorneys about these issues and to strategize to find solutions. The goal of the meetings is to provide information on the manner in which OSH retaliation occurs, current remedies to address retaliation, and to mobilize a growing group of workers and organizations to work together to build pressure for systemic change.
Worksafe will convene a summit in late Spring to discuss the recommendations that came out of the Regional OSH anti-retaliation meetings. For more information, check www.worksafe.org, call (510) 302-1027, or email Jora Trang at email@example.com. Worksafe also offers trainings to unions about filing OSHA complaints.