Introduction to a SERM System

We will explore the business case for sustainability and the benefits from ensuring that a Sustainable Enterprise Risk Management (SERM) system leads you towards becoming a sustainable organisation. There are benefits to be derived from proactively seeking opportunities for new markets in a world of increasingly constrained resource supplies and increasing demands. The approach seeks to minimise the risks, the negative aspects of not yet being sustainable. In so doing it should be understood that an enlightened view of the risk environment can:

• Reduce overheads and material costs;

• Increase compliance;

• Reduce fines and penalties; and

• Improve competitiveness and marketing opportunities.

Outstanding economic, environmental, social health and safety and governmental performance can have practical benefits for the organisation. Actions to mitigate risk can include the taking of opportunities as they present themselves. Companies like BT, General Electric and Wal-Mart are changing their competitive game by taking sustainability risk factors and turning these into benefits for their competitive strategy.

There is some debate regarding whether the modus operandi of business is anything other than business. To support the view that sustainability issues are crucial to business operations, a survey conducted by the Center for Corporate Citizenship & Sustainability (http://www.bcccc.net/index.cfm) of 198 medium to large multinational companies found that:

• A total of 90% of participating companies say their company's approach to corporate citizenship and sustainability issues reflects at least some belief in the potential rewards;

• Two-thirds of survey participants say that corporate citizenship and sustainability issues are of growing importance for their businesses; and

• A majority of big companies concerned with corporate responsibility issues acknowledge that they lack an active strategy to develop new business opportunities based on those concerns.

An emerging example of the new mode of operations and how values-led brands are helping to create value is a recent quote from Unilever's CEO Patrick Cescau:

For us, social responsibility is about creating social benefits through our brands and through our interactions as a business with society. It's the business of doing business responsibly . The business case for corporate responsibility can be summarised in four ways: sustainable development, building reputation, growing markets, and fuelling innovation. (Business as an Agent of World Benefit Forum in Cleveland, USA, 24 October 2006 )

The SERM framework seeks to highlight that there is a broader definition of business risk which covers a wider range of current and emerging risks that can impact upon an organisation. Quite often these risks affect intangible assets and value as opposed to the more tangible damage we are used to as risk managers. Many of the triggers can originate from outside the organisation, yet still require management. So we offer the following version of what we perceive to be risk as,

anything which prevents an organisation from achieving its business objectives.

To demonstrate this wider definition of business risk we quantify other loss experiences of companies, many of whom were unprepared and did not view them as risks as they were outside their traditional view of what was business and business risk. In this book we use research supplied by the SERM Rating Agency Ltd who have analysed a wide range of companies' loss episodes, which can be quantified as having had an economic impact, including:

• Non-compliance fines and enforcement notices;

• Reputation and brand damage;

• Work stoppages, labour disputes and strikes; and

• Product recalls and loss of stakeholder confidence.

The methodology has been tested and refined over 10 years, originally developed in partnership with: the insurance industry, the United Nations Environment Programme (UNEP), the Association of Chartered Certified Accountants (ACCA), the Association of British Insurers (ABI) and the Centre for the Study of Financial Innovation (CSFI), among many others. It can be used to access any size of organisation.

A key element of a SERM system is the concept of 'sustainability' or sustainable development as it is also known; sustainable development is one of the guiding philosophies behind our investigating the potential of a Sustainable ERM (SERM) system. The term is generally traced back to the World Commission on Environment and Development (the Brundtland Commission) report which coined the following definition: 'Sustainable Development is development that meets the needs of the present without compromising the ability of future generations to meet their own needs'.

Sustainable development reporting can help companies to mitigate risk, protect their corporate brands, and gain competitive advantage. (World Business Council for Sustainable Development)

A more current corporate version offered by Lord John Browne, Group Chief Executive of BP in a speech on sustainability, notes:

Our purpose is to supply the goods and services which people want to buy at a cost they can afford. If a business can't meet the needs of its customers it will cease to trade . The business of business is business and sustainability is about achieving enduring commercial success. (6th Annual Peter M. Wege Lecture, University of Michigan, Flint, USA, 14 November 2006)

The need to find new frameworks like a Sustainable Enterprise Risk Management system has been emphasised by Richard Evans, President and Chief Executive Officer of Alcan Inc.:

Sustainability requires new approaches, innovative solutions and stronger partnerships. All of those, when executed and managed well, build value . Sustainability is not a challenge. It is a path - I would argue the only path - to a successful future. (The 2006 Banff Forum, in Mont-Tremblant, Canada, 6 October 2006)

The risk management system also sits well with the frameworks within corporate social responsibility (CSR) frameworks (also known as corporate responsibility (CR), corporate accountability (CA) and corporate citizenship (CS)), which follow a sustainable development style framework, as this quote on the definition of CSR demonstrates:

A company's commitment to operating in an economically, socially and environmentally sustainable manner, while recognising the interests of its stakeholders, including investors, customers, employees, business partners, local communities, the environment and society at large. (Canadian Business for Social Responsibility)

Ensuring business legitimacy and licence to operate are the overreaching aims of the wider business community. To ensure this, there are concepts of: non-financial performance measurement; corporate social responsibility (CSR) also known as corporate responsibility and corporate accountability; sustainability; and business durability. Some prominent business organisations are also promoting these concepts. The Confederation of British Industry (CBI) has proclaimed:

It is a prime responsibility of managements to ensure that companies are good corporate citizens, caring not just for those with a direct stake in business -- shareholders, employees, customers, suppliers -- but for the general public and the environment, in the broadest sense of the term. Social responsibility encompasses many different aspects of business life. It means putting customers first, and providing them with good, safe and reliable products and services. It means being a first class employer, providing fair pay, good conditions and decent pensions for employees. It involves genuine concern for health and safety, and a commitment to good employee involvement and communications.

When a Firing May Be Illegal

There are a few important exceptions to the employment at will doctrine—and some additional legal theories about unfair treatment on the job—that may make it possible for employees to hang onto their jobs or to sue their former employer for wrongful termination. And, as anxieties deepen over job security, more employees are taking the time and effort to contradict their employers’ assertions that it is time for them to go—and more workers seem willing to do battle in court over unfair treatment.

1. Written Promises

If you have a written employment contract setting out the terms of your work, pay, and benefits, you may be able to get it enforced against an employer who ignores any one of its provisions.

A legal contract—covering employment or anything else—is created when three things occur:

• An offer is made by one person to another.

• That offer is accepted.

• Something of value is exchanged based on the agreement.

You have the best chance of arguing that you are not an employee at will (and, therefore, that you are entitled to keep your job) if there is a strong written statement signifying that you are excepted from the employment at will doctrine.

For example, most collective bargaining agreements (contracts that set out union members’ rights) state that union members can be fired only “for good cause.” So, while union members are still technically employees at will, their agreements often make them exceptions to the general rule, requiring employers to have a specific, legally valid reason before firing them.

And some employees negotiate and sign detailed contracts with their employers—contracts which set out the specific terms of their employment, including salary, relocation rights, and beginning and ending dates of work. Employment contracts have become more rare since the rise and fall of the dotcom companies—and are now usually reserved for the uppermost company executives and other notables such as professional athletes. Those holding employment contracts are usually not subject to the employment at will doctrine; their contracts spell out the length of their employment and specifically note when and how the employment relationship can end.

2. Implied Promises

Claiming that you and your employer have an implied contract is one more way employees can chip away at the doctrine of employment at will. But the chipping won’t be easy. An implied contract assumes that words and things of value exchanged between a former employer and employee created a legal contract governing their relationship.

Until legal challenges to employee dismissals began to be filed with fervor in the early 1980s, many employers used terms such as “permanent employment” in their employee manuals, on job application forms, or orally when offering a position to a prospective employee. Today, employees who challenge their firings sometimes argue that, when an employer referred to permanent employment in the hiring process, that created an implied contract between them. They claim that this implied contract means that the company can only fire them for just cause, such as bad behavior on the job. An employer who fires for less than that, the theory goes, has breached the implied contract.

In addition to making the foolhardy promise of permanent employment, employee handbooks may also offer other fertile grounds for exceptions to employment at will.

A few courts have held, for example, that where company manuals state that employees must be given specific forms of progressive discipline before being fired, employers must deliver on those promises. However, most savvy businesses these days are well acquainted with this legal loophole, so few of them now include such promises in their employee manuals.

And courts have become more circumspect about when they will find an implied employment contract in an employee manual, most opining that the manuals must be very specific and detailed—more than general statements of policy—to constitute a contract.

Outside of employee manuals, courts have also found implied contract exceptions to employment at will where employers overtly agree to continue employment for a specific time period. And, less commonly, such implied contracts have also been found where employers offer persuasive job negotiations along with letters of reassurance or job offers promising stability.

In determining whether you have a binding implied employment contract with a former employer, courts will look at a number of factors that might have led you to believe your employment was rooted in solid ground, including:

• the duration of your employment

• whether you have received regular promotions

• whether you have consistently received positive performance reviews

• whether you were assured that you would have continuing employment

• whether your employer violated a usual employment practice in firing you—such as neglecting to give a required warning, or

• whether promises of permanence were made when you were hired.

3. Breaches of Good Faith and Fair Dealing

While it is an uphill battle to prove that a written or implied promise tantamount to a contract ever existed, it’s even tougher to prove that one has been violated. And, barring discrimination or some other egregious wrongdoing in the process, your best hope of fighting a firing may be to claim that your former employer breached what is referred to as a duty of good faith and fair dealing.

Courts have held that employers have committed breaches of good faith and fair dealing by:

• firing or transferring employees to prevent them from collecting sales commissions

• misleading employees about their chances for future promotions and wage increases

• fabricating reasons for firing an employee on the basis of on-the-job performance when the real motivation is to replace that employee with someone who will work for lower pay

• soft-pedaling the bad aspects of a particular job, such as the need to travel through dangerous neighborhoods late at night, and

• repeatedly transferring an employee to remote, dangerous, or otherwise undesirable assignments to coerce him or her into quitting without collecting the severance pay and other benefits that would otherwise be due.

While their rulings may be subject to change, some courts do not appear to recognize this exception to at-will employment at all. And some states allow employees to sue for breach of good faith and fair dealing only if they have a valid employment contract.

4. Violations of Public Policy

The employment at will doctrine won’t protect an employer from a wrongful discharge claim if a worker is fired for complaining about illegal conduct or a wrong an employer committed, such as failing to pay workers a minimum wage or overtime pay when it is required. Indeed, it is illegal to violate public policy when firing a worker—that is, to fire for a reason that harms not only the fired worker, but also the interests of the public in general.

Figuring out whether a court would decide that a particular firing fits into this category can, of course, be an exasperating exercise. Before allowing an action for a violation of public policy, most courts strictly require that there be some specific law setting out the policy. Many state and federal laws oblige and take some of the guesswork out of this issue by specifying employment-related actions that clearly violate public policy, such as firing an employee for:

• disclosing a company practice of refusing to pay employees their earned commissions and accrued vacation pay
  

• taking time off work to serve on a jury
  

• taking time off work to vote
  

• serving in the military or National Guard , or

• notifying authorities about some wrongdoing harmful to the public—generally known as whistleblowing

In addition, a number of state laws protect employees from being fired for asserting a number of more arcane rights—including serving as an election officer, serving as a volunteer firefighter, having certain political opinions, appearing as a witness in a criminal case, or even being elected to the general assembly. Many of these laws, passed as knee-jerk reactions to assuage particular workplace disputes, have become all but dead letters. Few people know they exist. And very few workers attempt to claim their protections. Still, if you feel that your firing may have violated one of these prohibitions, double check the laws in your state.

Courts have also held that it violates public policy for an employer to fire you because you took advantage of some legal remedies or exercised a legal right. And some states will not recognize this exception unless there is a specific statute conferring a particular right. For example, it is illegal for your employer to fire you because you:

• file a workers’ compensation claim
  

• file a complaint under the Fair Labor Standards Act

• report a violation of the Occupational Safety and Health Act or state safety law
  

• claim your rights under Title VII of the Civil Rights Act
  

• exercise your right to belong or not to belong to a union
  

• exercise your right to take a leave from work that was available under state or federal law
  

• refuse to take a lie detector test

• refuse to take a drug test given without good reason or

• have your pay subject to an order for child support or a wage garnishment order
  

In a few states—such as Arizona—this exception is nearly sacrosanct. Whenever a terminated employee’s wrongful termination claim raises an important public policy interest, the employer may well have violated that policy by firing the worker. For example, an Arizona appellate court recently found that a former employee might have been fired as a scapegoat after complaining about possible violations of his employer’s internal antitrust policy. (Murcott v. Best Western International, 9 P.3d 1088 (2000).)

5. Retaliation

Various types of laws—notably, those protecting whistleblowing and prohibiting discrimination —specifically forbid employers from retaliating against employees who avail themselves of legal protections. But a lawsuit alleging retaliation need not always be pegged to a specific statute. An increasing number of cases are now based on the time-tested ban against getting even, legally known as retaliation.

The broad claim of retaliation is a little more complicated, but somewhat easier to prove, than a charge of workplace discrimination. The reason is that evidence supporting retaliation claims is usually less subjective, more obvious than for cases of discrimination. To make out a case of retaliation, you must prove all of the following:

• You were engaged in a legally protected activity—such as filing a complaint with the Equal Employment Opportunity Commission or formally complaining to your own company officials about harassment or discrimination.

• Your employer then took adverse action against you—by firing you, denying you a promotion, giving an unwarranted bad work performance review, increasing job duties or responsibilities, scrutinizing your work very closely or giving an inaccurate poor reference.

• Your actions were the cause of your employer’s actions—for example, you were demoted just after your employer found out that you filed a charge of sexual harassment.

The employer or former employer is then free to show that there was some legitimate reason—other than retaliation—for its actions. If such evidence is presented, you get one more shot at winning by showing that the employer would not have acted—that is, fired or demoted you—if you had not acted first. This last is a tad tricky. In seeing whether this link exists, courts are most likely to look at:

• who made the job decision against you—he or she must have known about the action you took

• your prior work record—especially important if you were fired, demoted, or given poor job performance evaluations following your action, and

• the timing of the employment decision—the shorter the time between them, the more likely a court is to find that they are related.

6. Fraud

In extreme cases, an employer’s actions are so devious and wrong-hearted that they constitute fraud. Fraud can be found at various stages of an employment relationship—most commonly in the recruiting process, where promises are made and broken, or in the final stages, such as when an employee is induced to resign.

By dint of its devious nature, fraud is tough to track and expose—and harder still to prove in court. To win, you must show all of the following:

• The employer made a false representation.

• Someone in charge knew of the false representation.

• Your employer intended to deceive you or induce you to rely on the representation.

• You relied on the representation as the truth.

• You were harmed in some way by your reliance.

The hardest part of proving fraud is connecting the dots to show that the employer acted badly on purpose, in an intentional effort to trick you. That requires good documentation of how, when, to whom, and by what means the false representations were made. If your employer is a large corporation, the task of collecting and proving this information is all the more difficult, since you must usually work through layers of bureaucracy and many individuals. You must be able to name the people who made the fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and why you relied on it.

If you are sufficiently lucky and resourceful to present this cogent puzzle after your employer defrauds you, you may be entitled to reimbursement for a surprising array of costs, including the costs of uprooting your family to take the job and the loss of income and security that resulted from leaving your former employer.

The Doctrine of Employment at Will | Losing or Leaving a Job

Once again, for the value of its shock: People employed in private industry have no automatic legal right to their jobs.

That is because of the long-established legal doctrine of employment at will—a term you are most likely to hear cited by your boss or your company’s lawyers if you speak up and protest your dismissal. An employer’s right to unilaterally determine whether or not you should stay on the payroll stems from a 1894 case (Payne v. Western & Atlantic RR, 81 Tenn. 507), in which the court ruled that employers do not need a reason to fire employees; they may fire any or all of their workers at will—that is, at any time and for any reason that is not illegal. Even if the reason for dismissal is morally wrong, the court held, no legal wrong has occurred and the government has no basis to intervene.

The management of America’s factories was still in the experimental stage in the 1890s when that case was decided. The business community successfully argued then, and in cases that followed, that factories could not be operated profitably unless employers were free to hire and fire as they chose. The employment at will doctrine has been reinforced over and over again by subsequent court rulings—and expanded to include not only factories but also virtually all other types of private industry jobs.

But the doctrine has been weakened a bit since the 1970s by rulings in wrongful discharge suits in which former employees question the legality of their firings and by some new laws that are more favorable to employees. For example, in Montana, employees who have completed a probationary period can only be fired for good cause. (Mont. Code Ann. § 39-2-904.) And a federal law, the Uniformed Services Employment and Reemployment Rights Act, or USERRA, protects those who have served in the uniformed services from being fired for any reason but good cause up to a year after they return to the job. And some states have made it illegal to fire employees for taking time off to care for a sick child or because they are gay or lesbian.

Taking Steps to End Sexual Harassment

The alternatives described here can be viewed as a series of escalating steps you can take to stop sexual harassment. If a particular tactic does not end the objectionable behavior, you can switch to increasingly formal strategies until you find one that is effective.

1. Confront the Harasser
Often the best strategy for the employee sounds the simplest: Confront the harasser and tell him or her to stop. This is not appropriate or sensible in every case, particularly when you have suffered injuries or are in some physical danger. But surprisingly often—most workplace experts say up to 90% of the time—it works.

Confronted directly, harassment is especially likely to end if it is at a fairly low level: off-color jokes, inappropriate comments about appearance, repeated requests for dates, sexist cartoons tacked onto the office refrigerator. Clearly saying no does more than assert your determination to stop the behavior. It makes clear that you find the behavior unwelcome—a critical part of the definition of sexual harassment. It is also a crucial first step if you later decide to take more formal action against the harassment.

Tell the harasser to stop. It is best to deal directly with the harassment when it occurs. But, if your harasser surprised you with an obnoxious gesture or comment that caught you completely off guard—a common tactic—you may have been too flabbergasted to respond at once. Or, if you did respond, you may not have expressed yourself clearly. Either way, talk to the harasser the next day.

Here are some tips for telling the harasser to back off:

• Keep the conversation brief. Try to speak privately, out of the hearing range of supervisors and coworkers.
• Do not use humor to make your point. Joking may be too easily misunderstood—or interpreted as a sign that you don’t take the situation seriously yourself.
• Be direct. It is usually better to make a direct request that a specific kind of behavior stop than to tell your harasser how you feel. For example, saying “I am uncomfortable with this” may be enough to get the point across to some people, but the subtlety may be lost on others. And, of course, making you uncomfortable may be just the effect the harasser was after.
• Offer no excuses. Keep in mind that you’re not the one whose behavior is inexcusable. Simply make the point and end the conversation. There is no need to offer excuses, such as: “My boyfriend wouldn’t like it if we met at your apartment to discuss that new project.”

Put it in writing. If your harasser persists, write a letter spelling out the behavior you object to and why. Also specify what you want to happen next. If you feel the situation is serious or bound to escalate, make clear that you will take action against the harassment if it does not stop at once. If your company has a written policy against harassment, attach a copy of it to your letter.

Caution Beware of retaliation. Do not overlook the possibility that some company witnesses may be blackmailed with the threat—soften unspoken—that they will lose their jobs or be demoted if they cooperate with you in documenting or investigating a sexual harassment complaint. While retaliation is illegal, it is difficult to prove. If possible, try to document the harassment by talking with witnesses both inside and outside the company.


2. Use a Company Complaint Procedure
A court sometimes requires a company to write a comprehensive policy if it finds there has been a problem with sexual harassment. Many businesses are also adopting sexual harassment policies on their own, to foster a better atmosphere for employees.

If you are harassed at work, a sexual harassment policy can help you determine what behavior you can take action against and how to ensure the harassment is stopped.

And, in fact, it is essential for you to heed these policies. The U.S. Supreme Court has recently ruled in a number of cases that employees can no longer be coy: If a workplace has a policy or a complaint procedure in place, workers must follow it to complain about or take other action against the bad behavior. Workers who don’t take advantage of company procedures for complaining about harassment may lose the legal right to sue the employer.

Find out whether your employer has a sexual harassment policy by contacting the human resources department or the person who handles employee benefits. If there is no policy, lobby to get one.

3. File a Complaint With a Government Agency
If the sexual harassment does not end after face-to-face meetings or after using the company complaint procedure, consider filing a complaint under the U.S. Civil Rights Act with the U.S. Equal Employment Opportunities Commission (EEOC) (see Chapter 7, Section A) or filing a complaint under a similar state law with a state Fair Employment Practices (FEP) agency. (See Section C, above.)

Filing a complaint with these agencies does two important things:

• It sets in motion an investigation by the EEOC or the state FEP agency that may resolve the sexual harassment complaint.
• It is a necessary prerequisite under the U.S. Civil Rights Act and under some state FEP laws if you want to file a lawsuit under the Civil Rights Act or under a state FEP law.

Sometimes the EEOC or a state FEP agency can resolve a sexual harassment dispute at no cost to the employee and with relatively little legal involvement. Almost all of these agencies provide some sort of conciliation service—a negotiation between the employer and employee to end the harassment and restore peace in the workplace. And most agencies protect the employee against retaliation for filing the complaint. Most agencies have the power to expand their investigation to cover more widespread sexual harassment within the company. A few state FEP agencies also provide an administrative hearing panel that can award money to compensate a harassed employee for personal injuries, although the EEOC and most state agencies do not have this important power.

The EEOC and state FEP agencies can resolve a lot of cases, but not all of them. Investigations sometimes drag on longer than the harassed employee is prepared to wait. Not all cases will yield to the conciliation efforts of such agencies; this is particularly true in severe cases of sexual harassment with significant personal injuries.

4. File a Private Lawsuit
If investigation and conciliation by the EEOC or a state FEP agency does not produce satisfactory results, your next step may be to file a lawsuit under the U.S. Civil Rights Act or under one of the state FEP statutes.

Even if you intend right from the beginning to file such a lawsuit, you generally must first file a claim with a government agency, as described above. An employee must file a claim with the EEOC before bringing a lawsuit under the U.S. Civil Rights Act. Some states also require that the employee first file a claim with the state FEP agency before suing under state law. At some point after such claims are filed and investigated, the agency will issue you a document—usually referred to as a right-to-sue letter—that allows you to take your case to court. Going to court in such lawsuits requires getting legal advice from an attorney who is experienced in these types of cases.

Generally speaking, suing under the U.S. Civil Rights Act is potentially more lucrative than relying on state law. Most state FEP laws allow you to win lost wages and benefits, but not compensation for physical and mental injuries such as stress and anxiety caused by the harassment. By contrast, the Civil Rights Act allows the employee to recover some money—out-of-pocket losses plus $50,000 to $300,000, depending upon the number of employees in the company. Its coverage, however, is limited to employers with 15 or more employees.

However, some states, such as New York and California, do better. They allow an employee to be compensated up to the full amount of damages proven, without any artificial limits. Employees in those states will probably want to pursue their rights under state law or maybe a combination of state and federal law.

5. File a Tort Lawsuit
Bringing a tort action (that is, a lawsuit for personal injuries) is often the last legal resort for sexually harassed workers. These legal actions provide a wider range of possible remedies than those available under the Civil Rights Act. You can sue both for compensatory damages for the emotional and physical distress you suffered because of the workplace harassment, and for potentially large punitive damages aimed at punishing the wrongdoer.

These lawsuits, which will usually require help from a lawyer, are based on traditional legal theories such as assault and battery, intentional infliction of emotional distress, interference with contract, and defamation. These actions, called torts, are civil wrongs—and are filed in state courts like any other lawsuit based on a personal injury.

At least in theory, tort actions allow unlimited dollar verdicts for some of the most severe injuries wrought by harassment: emotional and physical harm. These tort actions are particularly appropriate where a worker has suffered severe trauma from the psychological remnants of harassment—embarrassment, fright, or humiliation—which can cause a permanent loss of self-esteem and take a heavy toll on emotional and physical health.

While a tort lawsuit may be the best option for some harassed workers, it is the only possible remedy for others. As mentioned, if your employer has 14 or fewer employees, you are not covered by the U.S. Civil Rights Act and cannot file an EEOC complaint or a federal lawsuit for money.

The Effects of Sexual Harassment

Sexual harassment on the job can have a number of serious consequences, both for the harassed individual and for other workers who experience it secondhand and become demoralized or intimidated at work.

1. Loss of Job

Sometimes the connection between sexual harassment and the injuries it causes is simple and direct: A worker is fired for refusing to go along with the sexual demands of a coworker or supervisor. Usually the management uses some other pretext for the firing, but the reasons are often quite transparent.

Sometimes the firing technically occurs because of some other event, but it is still clearly related to sexual harassment. For example, if a company downgrades an employee’s job and assignments because of a harassment incident and then fires him or her for complaining about the demotion, that injury is legally caused by sexual harassment.

If an employee is temporarily unable to work as a result of the harassment and the management uses that as an excuse to fire him or her, that is also considered legally related to the harassment.

2. Loss of Wages and Other Benefits

An employee who resists sexual advances or objects to obscene humor in the office may suffer work-related consequences including:

• being denied a promotion

• being demoted, or

• suffering various economic losses.

That employee may also suffer harm to his or her standing within the company, which could jeopardize future pay increases and opportunities for promotion.

A loss of wages usually entails a loss of other job benefits as well, such as pension contributions, medical benefits, overtime pay, bonuses, sick pay, shift differential pay, vacation pay, and participation in any company profit-sharing plan.

3. Forced Reassignment

Sometimes a company responds to an employee’s complaint of sexual harassment by transferring that individual somewhere else in the company and leaving the harasser unpunished. This forced reassignment is another form of job-connected injury, and it may be compounded if it results in a loss of pay or benefits or reduced opportunities for advancement.

4. Constructive Discharge

Sometimes the sexual harassment is so severe that the employee quits. If the situation was intolerable and the employee was justified in quitting, sexual harassment caused him or her to be constructively discharged—that is, forced to leave. While often difficult to prove, courts treat this as an illegal firing.

5. Penalties for Retaliation

Employees are frequently fired or penalized for reporting sexual harassment or otherwise trying to stop it. Such workplace reprimands are called retaliation. In such cases, the injury is legally considered to be a direct result of the sexual harassment.

6. Personal Injuries

In addition to job-connected losses, a sexually harassed worker often suffers serious and costly personal injuries—ranging from stress-related illnesses to serious physical and emotional problems.

Sexual harassment also causes a great many other types of physical, mental, and emotional injuries. Some of these injuries are stress-related, but others are caused by physical pranks or violent acts directed at the harassed worker.

State and Local Health and Safety Laws

Many states and municipalities have laws that mandate a certain level of safety in the workplace. These laws vary greatly in what they require, how they are enforced, and even which employers they cover.

Early on, California began enforcing the most powerful of these laws: It requires every employer in the state to have a written plan to prevent workplace injuries. A number of states have followed the lead, putting teeth and nails into the laws that protect workplace safety. For example, Texas maintains a 24-hour hotline for telephone reports of violations—and prohibits employers from discriminating against workers who drop a dime to use it.

1. State OSHA Laws

Most states now have their own OSHA laws—most with protections for workers that are similar to those provided in the federal law. For example, employers in some low-hazard industries, such as retailers and insurance companies with fewer than ten employees, are exempt from some posting and reporting requirements. Most state laws cover all small employers, regardless of the type of business.

A number of states that do not now have OSHA laws in place are presently considering passing them—and many of the states that already have such laws are considering wholesale amendments changing their coverage and content. Check your state’s particulars with a local OSHA office—or call the state department of labor to check whether your state has enacted an OSHA law recently.

A number of state laws specifically forbid employers from firing employees who assert their rights under workplace health and safety rules. Some states, like OSHA, give workers the right to refuse to work under certain conditions, although the workers may need to report the condition first. And some states protect workers from retaliation not only for exercising their rights under OSHA, but also for using state “right to know” laws—statutes that require employers to give workers information about hazardous substances on the job.

Still another group of state laws extends beyond the workplace to protect employees who report violations of laws and rules that create specific dangers to public health and safety. These laws, commonly referred to as whistleblower statutes, generally protect good eggs—individuals who are attempting to uphold a public policy of the state. For example, typical whistleblower statutes prohibit employees from being fired for reporting toxic dumping or fraudulent use of government funds.

The Knock That Never Comes

If you happen upon an OSHA official who is feeling chatty and loose-tongued, you may hear what we all suspected: There simply are not enough inspectors to go around inspecting. Perhaps the jobs are hard to fill—OSHA inspectors nestle among IRS auditors on most employers’ lists of unwelcome visitors.

Restricted budgets may be a problem, too—the agency has been forced to set staff levels low and keep them there.

All this makes for lax enforcement. For example, there are only about 250 inspectors on the California OSHA staff available to monitor businesses and dole out citations for failing to comply with the state’s comprehensive law requiring health and safety plans for every employer in the state.

And California is a big state. Chamber of Commerce officials there recently estimated that if all the inspectors started at the state’s Oregon border and worked their way south through every business, it would take at least 300 years to reach Mexico.

2. Sanitation Laws

Many state and local health and building codes offer guidance in how to keep your workplace safe. While not intended specifically to ensure workplace safety, these laws often include programs designed to ensure good sanitation and public safety in general.

For example, the health department of the city in which you work probably has the power to order an employer to improve restroom facilities that are leaking and causing unsanitary workplace conditions. And your local building inspector typically can order an employer to straighten out faulty electrical wiring that presents a shock or fire hazard to people working near that wiring.

When the Boss Doubles as a Bathroom Monitor

It wasn’t big news to many when government health authorities recently slapped a $332,500 fine on Hudson Foods, a poultry processing plant in the town of Noel, Missouri. The plant had been inspected by the Occupational Safety and Health Administration (OSHA) 23 times in 24 years—a healthy number for an agency notoriously backlogged and selective in carrying out its charge of ferreting out workplace health and safety violations.

A number of news sources dutifully recounted the parade of transgressions OSHA inspectors had noted: blocked and restricted fire exits, failure to provide training in and enforce use of eye protective equipment, failure to provide training and issue procedures for handling hazardous chemicals, failure to securely anchor machines.

Less widely reported was one innocuous sounding violation: Insufficient Toilet Facilities. The charge drew at least a few glib jibes: “Let My People Go,” trumpeted one legal journal in a headline thumbnailing the inspection.

But few could fathom the human humiliation behind it all. Hudson workers claim they were required to ask permission before being allowed bathroom breaks—and that permission was denied as often as granted. Some say they were forced to urinate in their clothes or wear diapers to absorb the inevitable. Thom Hanson, chief regulatory compliance officer at Hudson, defended the company’s position: The workers simply “need to ask supervisors to release them,” he explained. “Normally, a relief person comes by and takes their place.”

But relief was not always in sight, according to one woman who worked five years as a packer at Hudson. “It matters how good you get along with your supervisor. Sometimes they’ll say no,” she said. “And it’s pretty hard to leave the line when you’ve got thousands of chickens coming at you.”

OSHA regulations have long required that employers provide toilets in the workplace: at least six for the first 150 workers, and one more for each additional 40 workers. But in a twist of semantics defying logic, the regulations mandate only the presence of toilets on the scene—not employees’ rights to use them. In considering the Hudson complaints, OSHA officials found for the first time that the company in effect denied workers toilet facilities when it denied them the right to use them.

In the wake of the Hudson case and the ensuing public outcry, OSHA officials dictated at last that employers must give workers prompt and reasonable access to toilet facilities, even though the regulations do not specifically require it.

An official Standards and Compliance Letter issued by OSHA noted: “Toilets that employees are not allowed to use for extended periods cannot be said to be ‘available’ to those employees.”

In other words, employers can no longer hide behind the lacking letter of the law. Employers who do not allow employees reasonable access to workplace toilets may now be cited and sanctioned by OSHA inspectors.

You can find state and local health and building codes at your city hall or county courthouse.

Conduct Codes | Privacy Rights

Some employers have fashioned comprehensive behavior codes for their employees, setting out the bounds of workplace behavior they consider Professional. The dictate that gets caught in many workers’ craws is the prohibition against dating others in the workplace, sometimes quaintly referred to as fraternizing. Others go a step farther and prohibit married couples from working in the same place.

Such attempted controls over workers’ personal relationships fly in the face of reality. Workplace experts claim that as many as 70% of all male and female workers have either dated or married someone they met at work. Those are far better odds than you have of meeting someone at a bar, party, or other social gathering specifically engineered to be a meeting place.

But courts have been painfully slow to recognize the social reality of today’s workplaces. During the last decade, employees have been fired for having extramarital affairs, for attending out-of-town conventions with someone other than a spouse, and for dating and marrying coworkers. There are no clear guidelines but an appeal to common sense. Where that fails, and an employer’s demands truly seem unreasonable, there may be no alternative but to sue.

1. Policies Against Marrying

Some employers think that nepotism—hiring an employee’s spouse or other relative—is an efficient way to recruit new workers and to keep them happy by surrounding them with loved ones. But others adamantly refuse to allow two spouses to be part of their workforce. They reason that married couples will be inconvenient at best, insisting on the same time off for vacations and holidays. At worst, they claim that being married will make workers less stable. For example, some police departments have argued that married troopers would not react objectively if a spouse got injured on the job—or that their credibility would be undermined if called to testify to support one another’s actions.

No Paint, No Powder, No Job

Darlene Jespersen toiled for nearly 20 years as a bartender at the sports bar in Harrah’s Casino in Reno. Along the way, she garnered rave performance reviews from her supervisors, along with a stack of customer feedback forms praising her excellent service and good attitude.

Then Harrah’s served up something new—a Beverage Department Image Transformation Program with new appearance standards for employees, called “Personal Best.” It required all women who work in the beverage department to wear makeup—foundation or powder, blush, lipstick, and mascara applied neatly in complimentary colors”; stockings; colored nail polish; hair “teased, curled, or styled every day” and “worn down at all times, no exceptions.”

Men, on the other hand, were simply forbidden by the policy from wearing any makeup of any kind and required to maintain trimmed hair and fingernails.

Jespersen claimed that making up was not her style—and protested that it made her feel “dolled up” like a sexual object and undermined her ability to deal with drunk or rowdy customers on the job. After gamely trying to follow the Personal best guidelines for a while, she stopped—and was fired.

Jespersen filed a federal lawsuit accusing Harrah’s of sex discrimination. But an allmale panel held against her, opining that that there was no proof that Harrah’s Personal Best policy imposed unequal burdens on men and women workers.

Jespersen v. Harrah’s Operating Co., Inc., 392 F. 3d 1076 (2004).

Some such policies, however, may be on shaky legal ground. Nearly half the states explicitly prohibit public and private employers from discriminating based on marital status.

But whether or not your state prohibits marital status discrimination, the legality of no-spouse employment rules is still unclear. Courts called upon to decide the issue have been contradictory. Some have found that there is no business justification for preventing coworkers from marrying or working together. Other courts stick stridently to the letter of workplace policies, reasoning that employees are legally free to ban married workers on their premises.

2. Policies Against Dating

Where the issue is prohibiting employees from dating rather than marrying, the law is even less clear. Few of the policies banning workers from dating have been challenged in court—most likely because the love-struck workers were surreptitious about their strickenness, or they got annoyed enough to get jobs elsewhere, or their love took a back seat to the stress of a court battle, ending the relationship.

To many, policies prohibiting coworkers from dating seem paternalistic and fly in the face of a cardinal law of human nature: Proximity Often Breeds Attraction. Those with the gumption to challenge such policies might base a legal claim on their right to privacy, freedom of association, wrongful discharge—or, if the policies are enforced disproportionately against workers of a particular age, gender, or race, they may claim a violation of civil rights.

A number of employers have adopted strict policies prohibiting supervisors from dating people they supervise, although, these days, a growing number give the supervisor the option of being transferred rather than fired on the spot. While these strong antidating policies may be understandable given the relatively low legal threshold for a supervisor’s conduct to be considered sexual harassment, they may be just as impossible to enforce.

Consider the practical difficulty, for example, in determining exactly when two people have crossed the line between friendly and involved. Strict policies prohibiting liaisons between bosses and worker bees also seem to encourage a double standard of behavior within the ranks of employees. Far better to remember that since workplace harassment is almost always about an abuse of power—not about romance gone sour—the focus should be on preventing intimidation.

Violence in the Workplace

The numbers and pronouncements about our chances of being attacked or killed while at work are scary.

Homicide reigns as the leading cause of workplace death among women. In fact, the National Institute for Occupational Safety and Health lists homicide as a leading cause of all work-related deaths in the United States, second only to motor vehicle crashes. More than 800 people are kill annually in American workplaces. And an estimated one million workers suffer nonfatal assaults on the job each year. The U.S. Postal Service alone reported 500 cases of employees being violent toward supervisors in a recent period of 18 months—and an additional 200 cases of supervisors acting violently toward employees. And frightening results of a recent study claim that an employee in California is more likely to be murdered at work than to die in a car accident commuting to or from work.

Part of what makes violent behavior difficult to control is that it usually comes unannounced. But most workplace killers are disgruntled former employees who have been laid off or fired or the obsessed spouse or lover of an employee. And those who kill at work, experts say, usually give off warning signals that typically include:

• following or stalking an employee to or from the place of work

• entering the workplace

• following an employee at work, and

• telephoning or sending correspondence to the employee.

Coworkers describe many individuals who have committed violence in the workplace as: loners, not team players, having a history of interpersonal conflict and displays of anger, having made threats of violence in the past, being withdrawn, showing symptoms of current drug or alcohol abuse, being argumentative and quick to blame others for their own problems and frustrations.

Both employers and employees may be able to help ward off violence by heeding these signals of disturbed souls and taking immediate action. As an employee, you should report threatening coworkers. And encourage your employer to both refer such problem coworkers to a ready source of help and tell them, in no uncertain terms, that they will be fired if their bad behavior continues.

1. Legal Developments

Realistically, employers who try to ward off violence often get caught in the conundrum of balancing employees’ safety against the rights of the potential perpetrator. On one hand, employers are charged with keeping the workplace safe. Several have been successfully sued for negligent hiring, negligent supervision, and wrongful death because they kept suspicious employees on staff who ultimately maimed or killed others on the job.

Increasingly, the pressure to act comes from victims of workplace violence and their survivors. And an increasing number of courts find employers directly liable for violence when they turn a deaf ear to workers’ complaints about inadequate security—or a blind eye to knowledge that a worker’s past actions might make him or her likely to attack coworkers and others on the job.

But employers have also felt the sting of lawsuits by employees who claim that overzealous investigations have violated laws protecting them from discrimination or invasions of their privacy.

Of late, scales are tipping in favor of keeping workplaces safe. In one recent case, for example, a Massachusetts court held that an employer, the U.S. Postal Service, was well within its rights when it fired a worker who screamed obscenities, swept the contents off a supervisor’s desk, threw a typewriter and chair, and knocked down several office partitions. The employee defended that he had an explosive personality disorder that entitled him to protection as a disabled employee rather than a pink slip. But the court held that a fundamental requirement of any job is that an employee must not be violent and destructive.

And a Florida court held recently that an employee—even one diagnosed with a chemical imbalance—could be fired on the spot for bringing a loaded gun to work.

2. Practical Prevention Steps

As reports of violence in the workplace have grown, concerned and conscientious employers and employees alike have turned to OSHA for help. While the agency has not set a specific safety standard for workplaces to follow, it has issued two sets of guidelines to help employers identify and prevent situations in workplaces with high potentials for violence: health care and social service industries and late-night retail establishments. The guidelines, which recommend setting up a violence prevention program, include five elements that may be useful for safety plans in all workplaces. If your workplace does not yet have a violence prevention program, the guidelines might serve as a starting point.

1. Management commitment and employee involvement. All violent and threatening incidents should be taken seriously—and management should develop a plan for workplace security, working with local police and other public safety agencies to improve physical security.

2. Worksite analysis. This includes identifying risk factors. For example, in retail establishments, risk factors commonly include contact with the public, exchanging money, working alone or in small numbers, and being located in a high crime area. A worksite analysis should also include a review of any past incidents, a security review, and periodic safety audits.

3. Hazard prevention and control. This includes adequate lighting, possible installation of video surveillance, drop safes, and physical barriers.

4. Training. All employees, supervisors, and security personnel should be trained to ensure awareness of potential security hazards and procedures for protecting themselves and others in the workplace.

5. Evaluation. Methods of hazard control and training needs should be evaluated—including record keeping, incident reports, police recommendations, and notes from safety meetings.

When Domestic Violence Comes to Work

In a recent survey of corporate security directors, 94% ranked the threats and battery associated with domestic violence as a high security risk in the workplace. Their feelings are justified. A full 75% of battered employees are harassed at work by their abusers—a spouse, former spouse, or member of the family or household. And, last year, there were 60,000 incidents of on-the-job violence in which those who were attacked knew their attackers intimately.

Beyond its obvious toll on human psyches, domestic violence has a huge impact on workplace productivity. For every 100 employees suffering the effects of domestic violence, 94 will take at least one extra sick day a year, over 60 will be late by more than an hour five times a month, and nearly 60 will be harassed at work on the phone by their abuser. All of this adds up to a situation where 70% of hurting, afraid, distracted, and otherwise compromised workers will have difficulty performing their jobs. And legislatures have been slow to respond to this reality. A rare exception, a California statute, provides that employers with 25 employees or more must offer domestic violence leave—reasonable time off to deal with related issues including health, counseling, safety, and housing. (Cal. Lab. Code Sec. 230.)

And a recent study of those subjected to domestic violence found that nearly 30% lost their jobs as a direct result of the abuse. Of all the other high costs associated with domestic violence, some of the most insidious from an employers’ standpoint are heightened health insurance premiums, increased workers’ compensation, and higher unemployment insurance.

The first step toward ending domestic violence is to find out the alternatives and possibilities available. If you or a coworker needs help or information on domestic violence, look in the telephone book under Crisis Intervention for local resources. Or call the National Domestic Violence Hotline for information on nearby shelters, legal help, health care advocacy, and counseling: 800-799-7233 or (TDD) 800-787-3224.

Statistics from DV Initiatives, www.dvinitiative.com, 2005

Pesticide Laws

Misused and overused pesticides are one of the greatest safety threats to people who work on farms, in other parts of the food industry, and in gardening and lawn care companies, to name just a few. Heavy exposure to some of these chemicals can cause serious health problems and even death. For people with certain types of allergies, even small doses of some pesticides can cause severe illness.

However, as early as 1975, a federal court ruled that the U.S. Environmental Protection Agency (EPA)—not OSHA—is responsible for making sure that workers are not injured by exposure to pesticides at work. (Organized Migrants in Community Action, Inc. v. Brennan, 520 F. 2d 1161.)

There have been some disputes between the EPA and OSHA over this ruling in recent years—and the question of enforcement responsibility remains unsettled decades later. If you believe that you or your coworkers are being exposed to dangerous doses of pesticides at work, the best thing to do is to file complaints with both OSHA and the EPA—and let them decide who gets to regulate you. To find the nearest EPA office, look in the U.S. Government section of the white pages of the telephone book. You can also find a listing of local EPA offices at the agency’s website at www.epa.gov under “About EPA.”

State and Local Health and Safety Laws

Many states and municipalities have laws that mandate a certain level of safety in the workplace. These laws vary greatly in what they require, how they are enforced, and even which employers they cover.

Early on, California began enforcing the most powerful of these laws: It requires every employer in the state to have a written plan to prevent workplace injuries. A number of states have followed the lead, putting teeth and nails into the laws that protect workplace safety. For example, Texas maintains a 24-hour hotline for telephone reports of violations—and prohibits employers from discriminating against workers who drop a dime to use it.

1. State OSHA Laws

Most states now have their own OSHA laws—most with protections for workers that are similar to those provided in the federal law. For example, employers in some low-hazard industries, such as retailers and insurance companies with fewer than ten employees, are exempt from some posting and reporting requirements. Most state laws cover all small employers, regardless of the type of business.

A number of states that do not now have OSHA laws in place are presently considering passing them—and many of the states that already have such laws are considering wholesale amendments changing their coverage and content. Check your state’s particulars with a local OSHA office—or call the state department of labor to check whether your state has enacted an OSHA law recently.

A number of state laws specifically forbid employers from firing employees who assert their rights under workplace health and safety rules. Some states, like OSHA, give workers the right to refuse to work under certain conditions, although the workers may need to report the condition first. And some states protect workers from retaliation not only for exercising their rights under OSHA, but also for using state “right to know” laws—statutes that require employers to give workers information about hazardous substances on the job.

Still another group of state laws extends beyond the workplace to protect employees who report violations of laws and rules that create specific dangers to public health and safety. These laws, commonly referred to as whistleblower statutes, generally protect good eggs—individuals who are attempting to uphold a public policy of the state. For example, typical whistleblower statutes prohibit employees from being fired for reporting toxic dumping or fraudulent use of government funds.

The Knock That Never Comes

If you happen upon an OSHA official who is feeling chatty and loose-tongued, you may hear what we all suspected: There simply are not enough inspectors to go around inspecting. Perhaps the jobs are hard to fill—OSHA inspectors nestle among IRS auditors on most employers’ lists of unwelcome visitors.

Restricted budgets may be a problem, too—the agency has been forced to set staff levels low and keep them there.

All this makes for lax enforcement. For example, there are only about 250 inspectors on the California OSHA staff available to monitor businesses and dole out citations for failing to comply with the state’s comprehensive law requiring health and safety plans for every employer in the state.

And California is a big state. Chamber of Commerce officials there recently estimated that if all the inspectors started at the state’s Oregon border and worked their way south through every business, it would take at least 300 years to reach Mexico.

2. Sanitation Laws

Many state and local health and building codes offer guidance in how to keep your workplace safe. While not intended specifically to ensure workplace safety, these laws often include programs designed to ensure good sanitation and public safety in general.

For example, the health department of the city in which you work probably has the power to order an employer to improve restroom facilities that are leaking and causing unsanitary workplace conditions. And your local building inspector typically can order an employer to straighten out faulty electrical wiring that presents a shock or fire hazard to people working near that wiring.

When the Boss Doubles as a Bathroom Monitor

It wasn’t big news to many when government health authorities recently slapped a $332,500 fine on Hudson Foods, a poultry processing plant in the town of Noel, Missouri. The plant had been inspected by the Occupational Safety and Health Administration (OSHA) 23 times in 24 years—a healthy number for an agency notoriously backlogged and selective in carrying out its charge of ferreting out workplace health and safety violations.

A number of news sources dutifully recounted the parade of transgressions OSHA inspectors had noted: blocked and restricted fire exits, failure to provide training in and enforce use of eye protective equipment, failure to provide training and issue procedures for handling hazardous chemicals, failure to securely anchor machines.

Less widely reported was one innocuous sounding violation: Insufficient Toilet Facilities. The charge drew at least a few glib jibes: “Let My People Go,” trumpeted one legal journal in a headline thumbnailing the inspection.

But few could fathom the human humiliation behind it all. Hudson workers claim they were required to ask permission before being allowed bathroom breaks—and that permission was denied as often as granted. Some say they were forced to urinate in their clothes or wear diapers to absorb the inevitable. Thom Hanson, chief regulatory compliance officer at Hudson, defended the company’s position: The workers simply “need to ask supervisors to release them,” he explained. “Normally, a relief person comes by and takes their place.”

But relief was not always in sight, according to one woman who worked five years as a packer at Hudson. “It matters how good you get along with your supervisor. Sometimes they’ll say no,” she said. “And it’s pretty hard to leave the line when you’ve got thousands of chickens coming at you.”

OSHA regulations have long required that employers provide toilets in the workplace: at least six for the first 150 workers, and one more for each additional 40 workers. But in a twist of semantics defying logic, the regulations mandate only the presence of toilets on the scene—not employees’ rights to use them. In considering the Hudson complaints, OSHA officials found for the first time that the company in effect denied workers toilet facilities when it denied them the right to use them.

In the wake of the Hudson case and the ensuing public outcry, OSHA officials dictated at last that employers must give workers prompt and reasonable access to toilet facilities, even though the regulations do not specifically require it.

An official Standards and Compliance Letter issued by OSHA noted: “Toilets that employees are not allowed to use for extended periods cannot be said to be ‘available’ to those employees.”

In other words, employers can no longer hide behind the lacking letter of the law. Employers who do not allow employees reasonable access to workplace toilets may now be cited and sanctioned by OSHA inspectors.

You can find state and local health and building codes at your city hall or county courthouse.

Tobacco Smoke in the Workplace

OSHA rules apply to tobacco smoke only in the most rare and extreme circumstances, such as when contaminants created by a manufacturing process combine with tobacco smoke to create a dangerous workplace air supply that fails OSHA standards. Workplace air quality standards and measurement techniques are so technical that typically only OSHA agents or consultants who specialize in environmental testing are able to determine when the air quality falls below allowable limits. But, when asked to intercede on workplace complaints about tobacco smoke, Environmental Protection Agency (EPA) officials typically hedge that “exposures to the carbon monoxide or other toxic substances in the tobacco smoke rarely exceed current OSHA permissible exposure limits or PELs.” (OSHA Standards Interpretation and Compliance Letter, 10/26/98.)

But the torturous effects of tobacco smoke on human health have been clearly established and even certified by the government. A recent report by the EPA, for example, estimated that secondhand tobacco smoke that emerges from exhaling and burning cigarettes causes approximately 3,000 lung cancer deaths and 37,000 heart disease deaths in nonsmokers each year. So people who smoke cigarettes, cigars, or pipes at work increasingly find themselves to be an unwelcome minority—and many employers already take actions to control when and where smoking is allowed.

Although there is no federal law that directly controls smoking at work, a majority of states protect workers from unwanted smoke in the workplace. In addition, hundreds of city and county ordinances restrict smoking in the workplace, but only a few of these local laws ban it outright.

In contrast, about half the states make it illegal to discriminate against employees or potential employees because they smoke during nonworking hours. And, because it has much encouragement and financial support from the tobacco industry, this smokers’ rights movement appears to be gaining strength.

So the ongoing legal battle boils down to a question of what is more important: one person’s right to preserve health by avoiding coworkers’ tobacco smoke, or another’s right to smoke without the interference of others.

1. Protections for Nonsmokers

The sentiment against smoking in the workplace and any other shared space has grown so strong that many companies now increase their attractiveness to job seekers by mentioning in their Help Wanted advertising that they maintain a smoke-free workplace.

Except in those states that forbid work-related discrimination against smokers or discrimination against employees on the basis of any legal activities outside work, there is nothing to prevent employers from establishing a policy of hiring and employing only nonsmokers.

Clearing the Air in the Workplace

If your health problems are severely aggravated by coworkers’ smoking, there are a number of steps you can take:

• Ask your employer for an accommodation. Successful accommodations to smoke-sensitive workers have included installing additional ventilation systems, restricting smoking areas to outside or special rooms, and segregating smokers and nonsmokers.

Example

Carmelita’s sinus problems were made almost unbearable by the smoke created by the people who work with her in an insurance claims processing office. Since her job involves primarily individual work on a computer terminal and no contact with people outside the company, Carmelita convinced her employer to allow her to start her workday at 4 p.m., just an hour before her coworkers leave for home.

When Carmelita needs to discuss something with coworkers or her supervisor, she does so via electronic mail or at occasional one-hour staff meetings that begin at 4 p.m.—and at which smoking is not allowed.

• Check local and state laws. As indicated, a growing number of local and state laws prohibit smoking in the workplace. Most of them also set out specific procedures for pursuing complaints. If you are unable to locate local legal prohibitions on smoking, check with a nonsmokers’ rights group.
  

• Consider filing a federal complaint. While OSHA is handling an increasing number of smoking injuries, most claims for injuries caused by secondhand smoke in the workplace are pressed and processed under the Americans With Disabilities Act. In the strongest complaints, workers were able to prove that smoke sensitivity rendered them handicapped in that they were unable to perform a major life activity: breathing freely.

• Consider income replacement programs. If you are unable to work out a plan to resolve a serious problem with workplace smoke, you may be forced to leave the workplace. But you may qualify for workers’ compensation or unemployment insurance benefits to provide some benefits while you look for a new job.
  

While most states now protect workers from unwanted smoke on the job, they follow different approaches. Many states have laws that specifically address smoking in workplaces; they live on the books alongside regulations that apply to other areas. A large number of states have smoking control laws that apply to everyone in public places and specified private places; nonsmoking employees in these states are protected only if they happen to work in a place that is specifically covered by the statute. A few state laws are all-encompassing—limiting or banning smoking in both public places and workplaces.

Where smoking is limited, some states prohibit it except in a designated area within the workplace. Other states take the opposite approach, requiring employers to set aside pristine areas for the nonsmokers in the work crowd.

There are also common exceptions written into antismoking laws. Often, their protections do not apply to:

• places where private social functions are typically held, such as rented banquet rooms in hotels; presumably, even the most sensitive nonsmoking employees must brave the smoke when they are guests in these places

• private offices occupied exclusively by smokers

• inmates at correctional facilities and hospital patients, who usually must comply with the rules of the institution while they are confined, and

• employers who can show that it would be financially or physically unreasonable to comply with the legal limitations.

Caution

Additional protection under the ADA. Some workers who are injured by smoke on the job have brought successful claims for their injuries under the Americans With Disabilities Act, which prohibits discrimination against people with disabilities. You are entitled to protection under this law only if you can prove that your ability to breathe is severely limited by tobacco smoke, making you physically disabled.

2. Protections for Smokers

Because of the potentially higher costs of health care insurance, absenteeism, unemployment insurance, and workers’ compensation insurance associated with employees who smoke, some companies now refuse to hire anyone who admits to being a smoker on a job application or in prehiring interviews.

Some states protect both smokers and nonsmokers by insisting that employers provide a smoke-free environment for nonsmokers and by prohibiting discrimination against an employee who smokes—either while off the job or at limited places and times in keeping with a worksite smoking policy.

Protection for smokers may be couched in laws that prohibit discrimination against employees who use “lawful products” outside the workplace before or after workhours. Wisconsin law goes an extra step and forbids employers from discriminating against both workers who use and workers who do not use lawful products.

Several of the state laws that prohibit discrimination against smoking employees do not apply if not smoking is truly a job requirement. In these states it is likely, for example, that a worker in the front office of the American Cancer Society—a group outspoken in its disdain of tobacco—could be fired for lighting up on the job.

And, even in those states that offer some protection to smokers employers, are free to charge smokers higher health insurance premiums than nonsmoking employees must pay.

3. State Laws on Smoking

The chart below summarizes state laws setting out rights and responsibilities for both smokers and nonsmokers. Different rules may apply to workplaces that are also public spaces, such as restaurants, bars, hotels, or casinos; those rules are not covered here. Beware that even if there is no statute regulating smoking in the workplace, there may still be a state administrative regulation or local ordinance that does control. Call your state labor department for more information.

Criminal Actions for OSHA Violations

As noted, the enforcement arm of OSHA has the power in some situations to pursue criminal prosecutions against employers who fail to maintain a safe workplace, but it rarely does.

However, state prosecutors are increasingly bringing criminal charges such as reckless endangerment and even murder against employers whose behavior seriously endangers workers.

You may want to contact your state’s attorney general about the possibility of criminal action if your work conditions pose a serious threat of injury or death to you or your coworkers and you are not able to resolve your concerns through OSHA or other civil actions.

While employers can be prosecuted for criminal negligence when an employee dies as a result of violations of OSHA regulations, such convictions are rare. In fact, in the first 20 years the law was in effect, only one employer was convicted and sent to jail for such a death. The main reason for this low conviction rate is that, under OSHA, prosecutors must show that an employer’s violation of workplace safety rules was willful—that is, done on purpose—a subjective standard that can be tough to meet

Enforcing OSHA Rights

If you believe that your workplace is unsafe, your first action should be to make your supervisor at work aware of the danger as soon as possible. If your employer has designated a particular person or department as responsible for workplace safety, inform the appropriate person of the danger.

In general, your complaint will get more attention if you present it on behalf of a group of employees who all see the situation as a safety threat. And, as for filing a complaint, there is safety in numbers. An employer who becomes angry over a safety complaint is much less likely to retaliate against a group of employees than against an individual.

This Law Swings Both Ways

Although neither federal nor state OSHA laws cite employees for violations of their responsibilities, the laws generally require that workers comply with all standards, rules, regulations, and orders issued under the Act. The unspoken inference here is that workers who do not hold up their end of the safety law bargain may jeopardize their own protections under health and safety laws.

Specifically, according to OSHA, an employee should:

• read the OSHA poster at the job site

• comply with all applicable OSHA standards.

• follow all employer safety and health regulations and wear or use prescribed protective equipment while working

• report hazardous conditions to the supervisor

• report any job-related injury or illness to the employer and seek treatment promptly

• cooperate with the OSHA compliance officer conducting an inspection if he or she inquires about safety and health conditions in the workplace, and

• exercise rights under the Act in a responsible manner.

While some of these responsibilities sound a bit nebulous, you should be prepared to show that you did your best to carry them out before claiming protection under any OSHA law.

1. Filing a Complaint

If you have not been successful in getting your company to correct a workplace safety hazard, you can file a complaint at the nearest OSHA office. Look under the U.S. Labor Department in the federal government section of your local telephone directory or find them on the agency’s website at www.osha.gov under About OSHA.

You can request the proper complaint forms from any OSHA office. You also have the option of telephoning your complaint to your nearest OSHA office, where a compliance officer will complete the paperwork and then send you the completed version for your approval and signature. For more information about filing a complaint and to file one online, go to OSHA’s Workers’ Page at www.osha.gov/as/opa/worker/index.html.

If you request it, OSHA must keep confidential your identity and that of any other employees involved in the complaint. If you want your identity to be kept secret, be sure to check the section on the complaint form that states: “Do not reveal my name to the employer.”

Once you have completed the complaint form, file it with the nearest OSHA office. You can do this in person, but if you send it in by certified mail, you will have proof that OSHA received it should it get mislaid in OSHA’s offices. Keep a photocopy of your completed complaint form for your own files.

Upon receiving your complaint, OSHA will assign a compliance officer to investigate your case. The compliance officer will likely talk with you and your employer and inspect the work conditions that you have reported.

Caution

Time off under the FMLA. If your workplace injury requires an extended recovery at home or in a hospital, state and federal leave laws may not only protect your right to take time off work but require that you be returned to your former position with continued insurance benefits.

2. How Complaints Are Resolved

A compliance officer who finds that the condition about which you complained poses an immediate danger to you and your coworkers can order your employer to immediately remove the danger from the workplace—or order the workers to leave the dangerous environment.

Where the danger is particularly urgent or the employer has a record of violations, OSHA may get tough by asking the courts to issue an injunction—a court order requiring the employer to eliminate workplace hazards.

Example

A group of pipeline workers complained to OSHA that the earth walls of the excavation in which they were working were not well supported and could collapse on them. The OSHA compliance officer tried unsuccessfully to talk the employer into improving the situation. OSHA obtained a court injunction forbidding work to continue within the excavation until the walls were shored up with steel supports.

If the danger is less immediate, the compliance officer will file a formal report on your complaint with the director of OSHA for your region. If the facts gathered by the compliance officer support your complaint, the regional director may issue a citation to your employer.

The citation will specify what work conditions must be changed to ensure the safety of the employees, the timetable that OSHA is allowing for those changes to be made—usually known as an abatement plan—and any fines that have been levied against your employer.

Example

Leslie is a machine operator in an old woodworking shop that uses lathes that throw a large quantity of wood dust into the air inside the shop. The wood dust appeared to be a hazard to the employees who breathe it, and Leslie was unsuccessful in resolving the problem with the shop’s owner. She filed a complaint with OSHA.

OSHA studied the air pollution in the shop and agreed that it was a threat to workers’ health. It ordered the shop’s owner to install enclosures on the lathes to cut down on the amount of dust put into the air and filter-equipped fans throughout the shop to capture any wood dust that escaped from the enclosures. Because the lathe enclosures and fans needed to be custom-designed and installed, OSHA allowed the shop’s owner six months to correct the situation.

In the meantime, OSHA ordered the shop’s owner to immediately provide Leslie and all the other people employed there with dust-filtering masks to wear over their mouths and noses. However, since OSHA regulations generally require employers to make the workplace safe and not just protect workers from an unsafe work situation, the masks were considered merely a temporary part of the long-term abatement plan.

Preventing Additional Injuries

Workplace hazards often become obvious only after they cause an injury. For example, an unguarded machine part that spins at high speed may not seem dangerous until someone’s clothing or hair becomes caught in it. But, even after a worker has been injured, employers sometimes fail—or even refuse—to recognize that something that hurt one person is likely to hurt another.

If you have been injured at work by a hazard that should be eliminated before it injures someone else, take the following steps as quickly as possible after obtaining the proper medical treatment:

• If you believe the hazard presents an immediate life-threatening danger to you and your coworkers, call OSHA’s emergency reporting line at 800-321-6742.

• File a claim for workers’ compensation benefits so that your medical bills will be paid and you will be compensated for your lost wages and injury. Workers’ compensation claims can cost a company a lot of money; filing such a claim tends to quickly focus an employer’s attention on safety problems. In some states, the amount you receive from a workers’ comp claim will be larger if your injury was due to a violation of a state workplace safety law.

• Point out to your employer the continuing hazard created by the cause of your injury. As with most workplace safety complaints, the odds of getting action will be greater if you can organize a group of employees to do this.

• If your employer does not eliminate the hazard promptly, file a complaint with OSHA and any state or local agency that you think may be able to help.

An OSHA inspector who finds a workplace safety hazard or other violation will tell all affected employees about it and post a danger notice before leaving the workplace. This public notice of an unsafe condition is often the impetus an employer needs to take it seriously and correct it.

Caution

The importance of being specific. Like many other government agencies, OSHA is a huge bureaucracy that is organized and operated according to computerized file numbers. The best way to get prompt service and accurate information from OSHA is to be as specific as possible. In your dealings with OSHA, be sure to mention the name of the company, the department of that company, the number assigned to the complaint that you are tracking, and the date on which it was filed. Jot down the names and numbers of those with whom you speak. And keep detailed notes of your conversations, complete with dates and times.

3. Contesting an Abatement Plan

You have the right to contest an abatement plan directed to your employer by OSHA to correct a workplace hazard—for example, if you feel the suggested plan is insufficient. To do so, send a letter expressing your intent to contest the plan to your local OSHA director within 15 days after the OSHA citation and announcement of the plan is posted in your workplace. You need not list specific reasons for contesting the plan in this letter; all you need to make clear is that you think the plan is unreasonable.

Sample Letter

April 10, 20XX

Ms. Mary Official
Regional Director
Occupational Safety and Health
Administration
321 Main Street
Anycity, USA 12345

Dear Ms. Official:

As allowed by 29 U.S.C. Section 659(e), I wish to contest the abatement plan agreed to by your agency and my employer, the Oldtime Mousetrap Company. This abatement program resulted from a complaint that I filed with your office on April 3, 20XX. That complaint was assigned number A-123456 by your office.

I contest this agreement because I believe that it is unreasonable.

Sincerely,

Elmer Springmaker
456 Central Road
Anycity, USA 12340
123-555-5555

Caution

There really is strength in numbers. If other employees feel the abatement plan is unfair or insufficient, encourage them to register their protests with OSHA as well.

After it receives your letter, OSHA will refer the matter to the Occupational Safety and Health Review Commission in Washington, D.C., an agency independent of OSHA. That commission will send your employer a notice that the abatement plan is being contested.

This notice will order the employer to post in the workplace an announcement that the plan is being contested. It will also require the employer to send a form that certifies the date on which that announcement was made back to the commission—with copies to OSHA, to you, and to other employees who have contested the plan.

Then, everyone involved in the case has ten days from the date the contest notice was posted to file an explanation of their viewpoints on the abatement plan with the commission. Copies must also be sent to all others involved in the case.

4. Administrative Review

When attempts to reach a resolution are unsuccessful, the commission submits the case to an administrative law judge. These proceedings usually take several months—and sometimes years—depending upon the complexity of the workplace hazards involved.

Hearings before administrative law judges are very much like a trial. Much time and money can be consumed in gathering evidence, and the hearings are usually scheduled during daytime hours, when most employees are at work. You will probably have to hire a lawyer to help if you decide to pursue your safety complaint at this level.

Tips on Presenting Your Views

The explanation you file on the abatement plan need not be elaborate. It should be as clear, brief, and precise as possible. For example, if you have made a list of employee injuries that have already resulted from the hazard in your workplace, list the date, time, location, and identity of the worker injured for each incident in your explanation.

Your explanation need not be typewritten, but your odds of communicating your viewpoint effectively will be increased if it is easy to read. If you do not have access to a typewriter or computer, consider having your explanation typed by a commercial typing service. You can usually find them in the Yellow Pages of your local telephone directory.

Send your explanation by certified mail to:

Executive Secretary
Occupational Safety and Health Review Commission
200 Constitution Avenue, NW
Washington, DC 20010

Be sure to include a cover letter—and to specify in it the name of the company involved, the number assigned to the case by the review commission and OSHA, and your mailing address and telephone number. Send a copy to the OSHA office where you filed your original complaint, to your employer, and to any people identified in the paperwork the commission sent to you as parties in the case. Also, be sure to save a copy of your cover letter, your explanation and any supporting documents that you send with it for your personal files.

After it has gathered all the statements on the case, the commission will typically turn them over to U.S. Labor Department lawyers who will attempt to meet with everyone who submitted statements and negotiate a resolution that is agreeable to all. The commission tries to negotiate settlements whenever possible, and by this point everyone involved will have had an opportunity to read and think about each other’s viewpoints. So the odds are that your complaint will be resolved at this stage.

You also have the right to appeal a decision by an administrative law judge for the Occupational Safety and Health Review Commission to the full commission or in federal court, but you will probably have to hire a lawyer to help you at these levels as well.

5. Walking Off the Job

OSHA gives you the right to refuse to continue doing your job in extreme circumstances that represent an immediate and substantial danger to your safety.

This right is limited. You cannot walk off the job and be protected by OSHA in just any workplace safety dispute—and this tactic cannot be used to protest general working conditions. But OSHA rules give you the right to walk off the job without being discriminated against later by your employer if the situation is a true workplace safety emergency.

A walk-off will be legally merited only if your situation meets all of the following conditions:

• You asked your employer to eliminate the hazard and your request was ignored or denied. To protect your rights, it would be best to tell more than one supervisor about the hazard or to call the danger to the attention of the same supervisor at least twice—preferably in front of witnesses.

• You did not have time to pursue normal OSHA enforcement channels. In most cases, this means that the danger must be something that came up suddenly and is not a safety threat that you allowed to go unchallenged for days, weeks, or months.

• Staying on the job would make a reasonable person believe that he or she faced a threat of serious personal injury or death because of the workplace hazard. If the hazard is something that you can simply stay away from—such as a malfunctioning machine in a work area that you do not have to enter—it probably would not qualify as creating an emergency.

• You had no other reasonable alternative to refusing to work, such as asking for a reassignment to another area.

Example

Mike is a welder in a truck building plant. Shortly after starting work one day, he noticed that a large electrical cable running along the plant’s ceiling had broken overnight, was coming loose from the hardware attaching it to the ceiling, and was dangling closer and closer to the plant floor. He and several of his coworkers immediately told their supervisor about the broken cable, but the supervisor did nothing about it. The group also told the supervisor’s boss about the danger, but still nothing was done to correct it.

By about 11 a.m., the broken cable had dropped to the point where it was brushing against the truck body that Mike was welding. Sparks flew each time the cable and the truck body touched. Because he had a reasonable fear that an electrical shock transmitted from the broken cable could seriously injure or kill him, Mike walked off the job. His supervisor fired him for leaving work without permission. But, because the danger fit OSHA’s definitions of an emergency, OSHA ordered the company to reinstate Mike to his job with back wages—after first repairing the broken and dangling cable.

If you use the extreme option of walking off a job because of a safety hazard, be sure to contact your nearest OSHA office as soon as you are out of danger. Call the agency’s emergency reporting number: 800-321-6742. Jot down the name of the OSHA officer with whom you speak—and also note the time that you report the hazard. That will preserve your right to be paid back wages and other losses from the time that the hazard forced you to walk away from work.

Tracking OSHA Actions

Any citation issued by OSHA must be posted for at least three days in a conspicuous place within the workplace it affects. If the hazard specified in the citation is not corrected within three days after the citation is issued, then the citation must remain posted until it is corrected.

Compliance officers are required to advise those who originally filed a complaint of the action taken on it. If you need more information about the outcome of an OSHA investigation that affects your workplace, call, write, or visit your local OSHA office.

If OSHA has given your employer an extended time to remedy a workplace hazard, then you also have a right to request a copy of that abatement plan from your employer. Your other recourse is to obtain a copy from the OSHA compliance officer who handled your complaint.

6. Penalties for Retaliation

Under OSHA, it is illegal for an employer to fire or otherwise discriminate against you for filing an OSHA complaint or participating in an OSHA investigation. OSHA can order an employer who violates this rule to return you to your job and to reimburse you for damages—including lost wages, the value of lost benefit coverages, and the cost of searching for a new job. A number of state laws also protect against retaliation for reporting workplace health and safety violations.

How to Fight Back Against Retaliation

OSHA forbids your employer from lashing out at you—cutting your pay or demoting or firing you—because you file or help investigate a complaint about an unsafe workplace. However, the Act does not authorize you to enforce this restriction by going directly into court; you must ask OSHA to intercede.

If you suspect illegal retaliation, you have 30 days from the time the illegal action took place to file a complaint about it with your local OSHA office. The outcome of your illegal discrimination complaint may turn on whether you can prove that you were fired or demoted because you contacted authorities, not because your performance slipped or economic cutbacks made it necessary. Be sure to back up your complaint with as much documentation for your employer’s action as possible.

Once you have filed a complaint about illegal job discrimination, OSHA has 90 days to respond. If you have shown that you were fired or otherwise punished because of complaining to OSHA, the compliance officer handling your complaint will attempt to convince your employer to take the proper action to remedy the situation. For example, if you were demoted in retaliation for your complaint, the OSHA compliance officer would probably ask your employer to reinstate you to your original position and give you the back pay to which you are entitled.

If OSHA is unsuccessful in talking your employer into reversing the effects of the illegal discrimination, it can sue your employer in federal court on your behalf.