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Addressing Illegal Retaliation: Policy Recommendations

Posted on Mar 17, 2016
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In 2015, we released our report, Improving OSH Retaliation Remedies for Workers (PDF), which detailed our work on occupational safety and health retaliation. Many workers who experience workplace health and safety issues continue to work in problematic work environments where the threat of retaliation for reporting injuries, illnesses, or hazards is constant. Employers and their agents have far too frequently shown that they will use retaliatory means to silence workers in order to keep their safety record clean and their workers’ compensation premiums low.

Worksafe has been advocating for the health and safety rights of workers for the past three decades. These include the right to know about hazards in the workplace, the right to be protected from hazards, and the right to take action and report hazardous workplace conditions without fear of reprisal.

Workers are the experts on their own workplace conditions. Their experiences regarding workplace hazards provide invaluable information to government agencies and advocates to help track and identify workplace hazards, target violating employers, and develop strategies to improve health and safety in the workplace. For these reasons, it is extremely important to ensure that workers' rights are protected so that they can voice concerns with their employers without reprisal.

Throughout 2014 and the beginning of 2015, Worksafe coordinated four regional Occupational Safety and Health (“OSH”) Anti-Retaliation trainings and meetings throughout California in order to:

  • Learn more about workers’ experiences with OSH retaliation;
  • Learn more about workers’ experiences with injury and illness reporting programs, policies, and procedures that create disincentives to reporting;
  • Build the capacity of worker leaders and advocates, unions, worker centers, and legal aid organizations to identify OSH retaliation violations and file complaints with state and federal agencies; and
  • Develop regional strategies to address OSH retaliation.

These regional meetings were held in San Diego (June 16, 2014), Los Angeles (August 20, 2014), the Central Valley (October 27, 2014), and the Bay Area (January 2, 2015). The resulting report compiles findings from our work in this field and from these regional trainings and meetings. In general, we learned that:

  • California’s workers face obstacles to reporting injuries, illnesses, and hazards to their employers because they face ongoing wage theft, outright threats and acts of retaliation, and/or a work culture that blames workers for injuries and creates disincentives for reporting;
  • California’s workers are being denied the right of protection from retaliation for reporting injuries and illnesses, which is a federally protected right;
  • Workers and advocates need to see the progress that is being made in the DLSE Retaliation Unit with respect to the OSH investigatory process so that advocates and workers can feel confident enough to even file complaints with the DLSE;
  • Temporary workers are unaware of their rights and remedies under the law and the employers’ duties with respect to their health and safety; and
  • California’s workers need more help to exercise their OSH retaliation rights with the DLSE.

Worksafe believes that state and federal government agencies can collaborate with workers and advocates to improve the current system of remedies for workers so that employers are penalized for retaliatory behavior and workers are encouraged to come forward about their workplace conditions without fear of reprisals.

Such an agenda must include:

  • An ever-improving DLSE OSH retaliation investigatory process with better outcomes and swifter resolutions for workers who file legitimate OSH retaliation complaints;
  • Clarification by the DLSE regarding the workers’ right to be protected from retaliation for reporting an injury;
  • A robust, high level DOSH/DLSE Outreach and Education campaign around Workers’ OSH Rights for workers, worker advocates, trade associations and employers, and DOSH and DLSE investigators;
  • A more inclusive information tracking and sharing system by the DLSE regarding OSH retaliation cases that will allow government agencies, workers, and their advocates to be able to assess the strength of workers’ remedies and to advocate for improvements;
  • Increased resources for the DLSE Retaliation Unit so investigators can meet the increasing workloads;
  • Stronger working relationships between DOSH and the DLSE around issues of OSH retaliation;
  • A California initiative for temporary workers that will increase awareness of their OSH rights and remedies and the duties of employers to report any injuries and illnesses they suffer; and
  • Implementation of the Federal OSHA interpretation of the illegality of injury and illness programs that create disincentives for worker reporting.

Following our regional meeting, we held a Summit on OSH Retaliation that pulled together advocates, government agencies and stakeholders from all across California. Held on June 29, 2015, advocates selected the below list as priority priorities for future work to tackle OSH Retaliation:

  1. DLSE Resources: There was a general concern raised that the DLSE’s retaliation unit does not have sufficient resources to meet their current workload. Participants were interested in advocating for more resources for the DLSE so that they can increase the number of investigators in their retaliation unit.
  2. Basic Education & Outreach: about basic whistleblower rights that are protected under the DLSE.
  3. OSH Anti-Retaliation Campaign: participants felt that the DIR’s “Wage-Theft is a Crime” campaign was an excellent, well-run campaign that increased awareness in the employer and worker community about wage theft. Participants wanted to advocate for DIR to run a similar campaign for OSH Retaliation.
  4. The Right to Report an Injury: participants were concerned about not being protected under the DLSE for the right to report an injury. This is a federally protected right. Participants wanted to advocate for the DLSE to accept such complaints rather than to refer them to the DWC. Advocates were interested in advocating for any necessary legal changes to ensure this protection.
  5. Prevention via Safety Disincentive Programs: many workers experience programs in the workplace that may seem to create incentives for better workplace safety – but actually create disincentives for workers for reporting injuries by penalizing them in various ways. Participants wanted to advocate for DOSH to cite more under the record-keeping regulations for such programs.
  6. Higher Penalties for OSH Retaliation: This issue has been raised by the DLSE before. The current statute does not have language for strong deterrents for retaliation. Advocates were interested in advocating for a change in the law to support higher penalties for retaliation in general, similar to what Federal OSHA has done in Region 9 for the 11(c) cases.
  7. DLSE Report-backs: Participants were interested in hearing from the DLSE more regularly about the status of on-going retaliation cases. Participants would like to see the DLSE participate more regularly in the quarterly Cal/OSHA Advisory Committee meetings.

Worksafe has convened a Northern California Activist Network to address these concerns. We work in conjunction with our sister organization in Los Angeles, SoCalCOSH. You don’t have to be located in the Northern California area to get involved.

Please contact Jora Trang (jtrang@worksafe.org) if your organization would like to join our Network.

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