The Occupational Safety and Health Act | Health and Safety

The main federal law covering threats to workplace safety is the Occupational Safety and Health Act, or OSHA. (29 U.S.C. §§ 651 to 678.) That law created the Occupational Safety and Health Administration (also called OSHA) under the U.S. Department of Labor to enforce workplace safety. And it created the National Institute for Occupational Safety and Health (NIOSH) to research ways to increase workplace safety.

OSHA broadly requires employers to provide a safe workplace for employees—one that is free of dangers that could physically harm those who work there. The law implements this directive by requiring employers to inform employees about potential hazards, to train them in how to deal with hazards, and to keep records of workplace injuries.

Sometimes, workplace dangers are caught and corrected during unannounced inspections by OSHA. But the vast majority of OSHA’s actions against workplace hazards are initiated by complaints from employees or labor unions representing them.

Still more reform is needed. According to recent estimates, six million Americans are injured at work each year, and more than 5,000 workers actually die as a result of their injuries. In addition, 50,000 Americans die each year from illnesses caused by chemicals they were exposed to while on the job.

Caution

States have OSHA laws, too. About half the states now have their own OSHA laws. The legal requirements for workplace health and safety in the state laws are generally similar to the federal law. In some cases, the state laws are more strict.

1. Who Is Covered

Unlike many other laws which cover only companies with a minimum number of employees, OSHA covers nearly all private employers engaged in interstate commerce. That includes nearly every employer that uses the U.S. Postal Service to send mail to other states or makes telephone calls to other states. Independent contractors are not specifically covered by the law.

OSHA does not apply to state and local governments. However, these employees have some protection if their state or local government has a safety plan. As an incentive to these employers, OSHA will fund half the cost of operating such a plan. Farms owned and operated by a family are the only significant private employers exempted from OSHA coverage.

Note

For more information on the basics of the law, see “All About OSHA,” a free pamphlet. You can download it from the agency’s website at www.osha.gov. You can also order it by calling OSHA Publications at 202-693-1888.

2. OSHA Requirements

The Occupational Safety and Health Act requires all private employers to maintain a workplace that is as safe and healthy for employees as is reasonably possible. Under OSHA, all employers are charged with this general safety duty. In addition, the law sets specific workplace safety standards for four major categories of work: General Industry, Maritime, Construction, and Agriculture.

Safety regulations are usually concerned with preventing a one-time injury—falling from an unsafe ladder or tripping on an irregular walkway, for example.

The Act’s health concerns are in preventing employee illnesses related to potential health dangers in the workplace—exposure to toxic fumes or asbestos, for example—and cumulative trauma such as Carpal Tunnel Syndrome.

The law quite simply, but frustratingly, requires employers to protect workers from “recognized hazards.” It does not specify or limit the types of dangers covered, so hazards ranging from things that cause simple cuts and bruises, to the unhealthy effects of longterm exposure to some types of radiation, are all arguably covered.

But proving the law was violated is not easy. To prove an OSHA violation, you must produce evidence of both of the following:

• Your employer failed to keep the workplace free of a hazard.

• The particular hazard was recognized as being likely to cause death or serious physical injury.

Under OSHA, the definition of a workplace is not limited to the inside of an office or factory. The Act requires that work conditions be safe no matter where the work is performed—even where the workplace is an open field or a moving vehicle.

In addition to the general duty to maintain a safe workplace, employers are required to meet OSHA’s safety standards for their specific industries. Depending on the types of hazards and workplaces involved, the employer’s responsibility for creating and maintaining a healthy and safe workplace can include such diverse things as informing workers about potentially hazardous substances and labeling them, upgrading or removing machinery that poses a danger, providing employees with special breathing apparatus to keep dust created by a manufacturing process from entering workers’ lungs, improving lighting above work areas, providing emergency exits and fire protection systems, vaccinating against diseases that can be contracted at work, or even tracking the effects of workplace conditions on employees’ health through periodic medical examinations.

Finally, OSHA requires employers to display a poster explaining workers’ rights to a safe workplace in a conspicuous spot. If the workplace is outdoors, the poster must be displayed where employees are most likely to see it—such as in a trailer at a construction site where workers use a time clock to punch in and out.

These posters are supplied to employers by OSHA and commercial publishers. An employer’s failure to display such posters is itself a violation of OSHA rules.

3. Injury and Illness Reports

Within eight hours of any workplace accident that results in the death of a worker or requires hospitalization of four or more workers, employers must report complete details to OSHA, including names of injured workers, time and place of the accident, nature of the injuries, and any type of machinery involved in the accident. All employees and former employees must be given access to this report upon request.

Companies employing ten or more people must also keep records of workers’ work-related injuries and illnesses that have caused death or days off work and post a report on those injuries and illnesses.

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.

Clothing and Grooming Codes | Privacy Rights

In general, employers have the right to dictate on-the-job standards for clothing and grooming as a condition of employment. Codes governing employees’ appearance may be illegal, however, if they result in a pattern of discrimination against a particular group of employees or potential employees. This type of violation has most often been mounted in companies with different codes for male and female employees.

1. Dress Codes

Many companies have policies about uniforms to keep their employees looking uniform—a legal goal. There is nothing inherently illegal, for example, about a company requiring all employees to wear navy blue slacks during working hours.

Many employers provide workers with some or all of the clothing that they are required to wear on the job. A few companies even rent suits for their employees to assure that they will be similarly dressed.

Although generally legal, such systems can violate your rights if the cost of the clothing is deducted from your pay in violation of the Fair Labor Standards Act (FLSA). For example, it is illegal under the FLSA for an employer to deduct the cost of work-related clothing from your pay so that your wages dip below the minimum wage standard, or so that the employer profits on the clothing.

A few states have attempted to address the concerns of employees who fear their uniform costs will cut into their earnings and have passed laws that prohibit employers from charging employees for required uniforms. But these laws are very narrow—and often do not apply to workers who need the economic boost the most, such as restaurant employees. Other laws erase the patina of generosity by imposing complicated schemes for when an employer may charge employees for cleaning a uniform. If you have questions about the legality of uniform charges, contact your state department of labor.

And, sometimes, the legal lines on dress restrictions become blurry. Courts have held, for example, that an employer cannot require female employees to wear uniforms if it allows male employees to wear street clothes on the job. And some differences that seem to be gender-based—such as barring men from wearing earrings but allowing them for women—have been allowed to stand. The courts reason that the differences in dress codes are not discriminatory if they do not put an unfair burden on one gender or the other.

2. Grooming Codes

Most workplace grooming codes simply require that employees be clean and presentable on the job—a reasonable request. And such codes are rarely challenged.

However, several lawsuits challenging workplace grooming codes have been waged by black men with Pseudofollicullitis Barbae, a race-specific skin disorder making it painful to shave. Several individuals have successfully challenged companies that refuse to hire men with beards or that fire men who do not comply with no-beard rules.

Example

Nelson, a black man, was advised by his physician not to shave his facial hair too closely because that would cause his whiskers to become ingrown and infected. Although Nelson took with him to a job interview a note from his doctor attesting to this problem, he was turned down for employment because the company where he had applied had a no-beard policy.

Nelson filed a complaint against the company under his state’s antidiscrimination laws on the basis of racial discrimination. Medical experts testified in his case that the condition which prevented Nelson from shaving usually affected only black men.

The court ruled in Nelson’s favor, saying that the company’s failure to lift its ban on beards despite Nelson’s well-documented medical problem resulted in illegal workplace discrimination against black men.