Safety in the Workplace

As an employee in California, you have the right to a safe workplace under both federal and state laws and regulations. If your employer fails to maintain safe working conditions, they may face fines or other corrective measures. The law protects you from retaliation when you report safety violations to the appropriate government agency, when you report them directly to your employer, or if you refuse to work in illegal, unsafe conditions.

Cal/OSHA is the primary state agency which sets and enforces occupational safety and health standards. It is empowered to investigate complaints, inspect worksites, and issue citations to employers. Employers are required to “abate” any safety violations and can face stiff civil penalties if they have failed to do so.

Generally speaking, individual employees do not have a private right of action to sue their employer in court for violating OSHA standards. If you have been injured at work, you may be eligible for Workers’ Compensation. If, however, you are aware of safety violations but have not been injured by them, reporting the violations is usually the right thing to do anyway. By reporting unsafe conditions to Cal/OSHA, you can directly contribute to a safer workplace.

If safety violations are widespread and have affected many of your coworkers, you may be eligible to bring a PAGA (“Private Attorneys General Act”) claim against your employer. A PAGA claim allows private individuals to enforce laws that would ordinarily be enforced by the state, and to collect a portion of civil penalties that would otherwise go entirely to the state. If you are considering a PAGA action against your employer, talk with an experienced PAGA and workplace safety attorney at Spencer Young Law for a free consultation!

If you face unsafe working conditions, you may refuse certain assignments without fear of retaliation. However, there are two preconditions that you must demonstrate before the law protects you. First, you must show that performing the assignment would violate a Cal/OSHA health or safety regulation. Second, you must show that the violation creates a real and apparent hazard to you or your coworkers. If both of these conditions are met, then it is illegal to terminate your employment or punish you, even if your employer insists that you were insubordinate or had a no-call, no-show. As a practical matter, however, be prepared to show that you communicated the problem to your employer and that refusing the assignment was a last resort. It is helpful to address these matters in writing, stating clearly what safety standard you believe is being violated. You should also demonstrate flexibility by accepting assignments that are modified to address the safety violation. If you are not sufficiently communicative or flexible, the law may not protect you if you refuse all assignments.

Example 1: Debbie works at a distillery in Dublin. Debbie is highly allergic to bee stings. She arrives at work one day and parks her car in the employee parking lot. A single bee buzzes outside her car door. Rather than leave her car, Debbie stays inside and calls her boss. She says she will not work today because there is a bee in the parking lot presenting a real and apparent hazard to her. She drives home. The next day she is fired for job abandonment. Debbie may have faced a “real and apparent hazard” but she couldn’t point to an actual Cal/OSHA violation. Nothing regulates whether a single bee can be in an outdoor parking lot. Technically, Debbie is NOT protected from retaliation by refusing to work on this day. However, her employer may have other obligations to accommodate her if they are aware of her medical condition. Debbie should contact an employment lawyer at Spencer Young Law to better understand her rights.

Example 2: Newton works as a tree-trimmer in the City of Newark. There are very strict Cal/OSHA rules about trimming trees within 10 feet of power lines. Only employees with certain training, certification, and safety equipment may be assigned to such work. Newton is assigned to trim a tree that is less than 3 feet from the nearest power line. While he is properly trained and certified, he was not provided with all of the required safety equipment for this particular assignment. When Newton arrives at the tree and sees how close it is to the power line, he takes a photograph with his phone and e-mails it to his supervisor. He adds the caption, “sorry Boss, but you know this violates OSHA on linework. I’ll get electrocuted if go up there.” Newton is fired right away for insubordination. Newton was illegally terminated. He demonstrated an actual OSHA violation and the real and apparent hazard it posed. He clearly stated both things to his boss. He didn’t refuse other work because he wasn’t offered other work. He pointed out something that was unsafe and was punished for it. This was retaliation.

If your worksite is unsafe, call an experienced work safety attorney at Spencer Young Law today for your free consultation!