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.