Protecting and Advocating for Workers' Rights: Legal & Advocate Guide PDF
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Volume 1 HEALTH & SAFETY RIGHTS AT WORK Protecting and Advocating for Workers’ Rights Legal & Advocate Guide 1st edition PROTECTING AND ADVOCATING FOR WORKERS’ RIGHTS Legal & Advocate Guide Authors Jora Trang Nicole Marquez Dorothy Wigmore Editor Jora Trang Worksafe 55 Harrison St. • Suite 400 Phone 510.302.1021 • Fax 510.663.5132 i. First Edition JANUARY 2014 Copyright 2014 by Worksafe, Inc. All rights reserved. No part of this publication may be reproduced, or transmitted in any form or by any means without prior written permission of the copyright owner. This manual is available for download for free to all California Qualified Legal Services Programs. All others may purchase and download the manual online for a nominal fee in order to offset some of the costs of creating and editing the manual. Requests for permission to use or reproduce any of this manual’s contents may be made in writing by email to [email protected], or by fax to 510-663-5132. For information on purchasing this manual, or any of its chapters, please contact Worksafe at 510-302-1021 or [email protected]. This publication is designed to be a resource guide for attorneys and non-attorney advocates regarding legal rights relating to employment in California. Worksafe does not in any way represent that the information contained in this publication is current and thereby correct. Rather, it is the responsibility of the user to ensure that the information is current and accurate. Worksafe is not responsible for reliance upon the information contained in this publication for any use whatsoever. People who may have a legal problem should consult with an attorney or a representative from the appropriate agency. ii. Acknowledgements Worksafe acknowledges the following current and former staff, pro bono attorneys, law clerks, and volunteers who dedicated their time and expertise in assisting us with the production of this manual, “Protecting and Advocating for Workers’ Rights: Legal & Advocate Guide.” Worksafe’s Executive Director Gail Bateson, and Occupational Health Specialist Dorothy Wigmore, for their support and consultation on Chapter 1.2, Cal/OSHA. Julius Young, Gary Lee, and Jenny Jerez of Boxer & Gerson LLP, for their support and consultation on Chapter 2.2, Workers Compensation, and Chapter 3.2, Retaliation in Workers Compensation §132(a). Jennifer Reisch, Legal Director at Equal Rights Advocates for her support and consultation on Chapter 3.2, Retaliation in Workers Compensation §132(a). Ryan Spillers of Gilbert & Sackman for his support and consultation on Chapter 3.4, NLRB: A Viable Alternative. Fran Schreiberg of Kazan, McClain, Satterley & Greenwood for her support and consultation on Chapter 1.2, Cal/OSHA. We extend our gratitude to the following attorneys and law clerks who provided invaluable contributions through their research, writing, and editing assistance at various stages of the manual’s development: Brinda Bellur, Tanya Cecena, Corey Friedman, Lora Jo Foo, Derrick Muhammad, Angelo Mathay, Lori Miller, Nora Devine, Jane Lee, Sarah Fielding, Inna Volkova, and Matthew Yuen. Credits All Icons Used in this Manual courtesy of IconArchive (www.iconarchive.com). iii. Table of Contents Acknowledgements iii. Table of Contents iv. Introduction v. PART 1 PART 4 ( FORTHCOMI NG) Health and Safety Laws 1 Disabilities on the Job 4 1.1 Introduction 4.1 Introduction 1.2 Cal OSHA 4.2 Workplace Violence 1.3 Fed OSHA (forthcoming) 4.3 Disability Accommodation 4.4 Disability Discrimination 4.5 Medical Leave Laws PART 2 Remedies for On-The-Job Injuries 2 2.1 Introduction PART 5 ( FORTHCOMI NG) 2.2 Workers’ Compensation Benefits 5 2.3 UEBTF (forthcoming) 5.1 Introduction 2.4 Tort (forthcoming) 5.2 Income Replacement 2.5 PAGA (forthcoming) 5.3 Health Care PART 3 PART 6 ( FORTHCOMI NG) Retaliation 3 Other Issues 6 3.1 Introduction 6.1 Introduction 3.2 §132(a): Workers’ Compensation 6.2 Immigrant Issues 3.3 DLSE (forthcoming) 6.3 §17200 Claims 3.4 NLRB 6.4 Young Workers 6.5 Maritime Injuries 6.6 Proposition iv. Introduction ABOUT WORKSAFE Worksafe is a California-based nonprofit organization dedicated to promoting workplace safety and health through education, training, technical and legal assistance, and advocacy. We focus on eliminating all types of workplace hazards and also on workplace-created toxic hazards that impact at-risk communities in California. We advocate for protective worker health and safety law and effective remedies for injured workers. As a legal services support center, we provide assistance to legal services programs throughout California who directly serve California’s most vulnerable low-wage workers. ABOUT THIS MANUAL Worksafe is pleased to make available the following four chapters of its manual, “Protecting and Advocating for Workers' Rights: Legal & Advocate Guide.” PART 1: Health and Safety Laws 1.1 Introduction 1.2 Cal OSHA PART 2: Remedies for On-The-Job Injuries 2.1 Introduction 2.2 Workers’ Compensation PART 3: Retaliation 3.1 Introduction 3.2 §132(a): Workers’ Compensation Retaliation 3.4 NLRB: A Viable Alternative The manual itself is a work in progress and we plan to develop and make available more chapters in future years. The manual is designed to serve as a guidebook for legal aid and worker center advocates in California. Although it is a legal manual, it was designed with the intent to allow non-legal advocates to assist their clients. Thus, the manual attempts to strike a balance between containing legal content that is sufficient for both legal and non-legal advocates to understand the law behind various legal practice areas that affect low-wage workers. We have provided a great deal of resources in the appendices of the available chapters for all of you, but especially for those advocates who have not practiced in the various areas of the law affecting the most vulnerable working people in California. We do not intend the information in the manual to be legal advice, nor should you construe it as such. People who may have a legal problem should consult with an attorney or a representative from the appropriate agency. (For additional disclaimer and copyright information, please see p. iii.) We encourage your feedback on how we can improve this manual. You can access our evaluation form online at www.worksafe.org/worksafe_materials_eval. Please take time to fill out the evaluation form for the manual to let us know how it impacted your understanding of the subject matter and your work, and how we can improve this resource. Thank you. January 2014 v. Chapter 1 HEALTH & SAFETY LAWS Legal & Advocate Guide Table of Contents §1.1 HEALTH AND SAFETY LAWS 1 [1.2.1] WHY IS THIS IMPORTANT TO YOUR ORGANIZATION? 2 [1.2.2] ISSUE SPOTTING 3 [1.2.3] BACKGROUND: CAL OSHA VS. FEDERAL OSHA 3 A. [1.2.4] CALIFORNIA’S STATE PLAN 3 B. [1.2.5] THE ADMINISTRATION OF CAL OSHA 4 C. [1.2.6] WHEN FEDERAL OSHA APPLIES 5 [1.2.7] WORKERS’ RIGHTS AND RESPONSIBILITIES 5 A. [1.2.8] WORKERS’ RIGHTS 5 B. [1.2.20] WORKERS’ RESPONSIBILITIES 14 [1.2.21] EMPLOYER DUTIES AND RESPONSIBILITIES 15 A. [1.2.22] DUTY TO PROVIDE A SAFE AND HEALTHFUL WORKPLACE 15 B. [1.2.24] DUTY TO COMPLY WITH SAFETY & HEALTH LAWS AND REGULATIONS 15 C. [1.2.25] DUTY TO ESTABLISH, IMPLEMENT, AND MAINTAIN AN INJURY AND ILLNESS PREVENTION PROGRAM 16 D. [1.2.26] DUTY TO PROVIDE INFORMATION 17 E. [1.2.27] DUTY TO REPORT AND RECORD WORKPLACE INJURY, ILLNESS, OR DEATH 18 F. [1.2.35] DUTY TO FIX OR CORRECT – “ABATE” HEALTH AND SAFETY VIOLATIONS 22 G. [1.2.36] DUTIES IN DUAL AND MULTI-‐EMPLOYER WORKSITE 23 [1.2.39] EXERCISING WORKERS’ RIGHTS 25 A. [1.2.40] FILING A COMPLAINT 26 B. [1.2.45] DESCRIBING AN EVENT OR INCIDENT 32 [1.2.54] THE PROCESS 47 A. [1.2.55] WHERE DOES THE COMPLAINT GO? 47 B. [1.2.56] DOSH’S AUTHORITY TO INVESTIGATE & INSPECT 47 C. [1.2.57] TIMING OF INSPECTIONS AFTER COMPLAINT 49 D. [1.2.58] OPENING CONFERENCE 51 E. [1.2.59] THE WALKAROUND 52 F. [1.2.61] THE EXIT CONFERENCE 55 G. [1.2.64] THE CLOSING CONFERENCE 56 H. [1.2.66] PRE-‐APPEAL INFORMAL CONFERENCE 57 I. [1.2.67] FOLLOW-‐UP INSPECTION 58 J. [1.2.68] IF DOSH DOES NOT RESPOND OR REFUSES TO ACT 58 [1.2.69] REMEDIES 59 A. [1.2.70] FOUR TYPES OF REMEDIES 59 B. [1.2.71] CITATIONS 60 C. [1.2.73] PENALTIES 61 D. [1.2.74] ABATEMENT 62 E. [1.2.75] ORDER PROHIBITING USE FOR IMMINENT HAZARD 63 F. [1.2.76] ORDER TO TAKE SPECIAL ACTION 64 G. [1.2.77] SPECIAL ORDER 64 [1.2.78] APPEALING THE CASE 65 A. [1.2.79] WHO CAN FILE APPEALS? 65 B. [1.2.80] HOW IS AN APPEAL FILED? 67 C. [1.2.81] AFFECTED EMPLOYEES’ RIGHT TO PARTY STATUS 68 D. [1.2.82] ASSIGNMENT TO ALJ 70 E. [1.2.83] WORKING WITH DOSH ATTORNEY 71 F. [1.2.84] PREHEARING MOTIONS 71 G. [1.2.90] PRE-‐HEARING CONFERENCE 73 H. [1.2.91] DISCOVERY 74 I. [1.2.93] HEARING 75 J. [1.2.95] DOSH’S CASE 76 K. [1.2.98] THE EMPLOYER’S CASE 78 L. [1.2.99] POST–HEARING 80 M. [1.2.100] SETTLEMENT 81 N. [1.2.103] PETITION FOR RECONSIDERATION. 83 O. [1.2.104] PETITION FOR WRIT OF MANDAMUS 84 P. [1.2.105] APPELLATE REVIEW 85 [1.2.106] RETALIATION 86 A. [1.2.107] IMMIGRANT BASED RETALIATION 87 B. [1.2.108] OSH BASED RETALIATION FILED WITH DLSE 87 C. [1.2.109] RETALIATION FOR WORKPLACE VIOLENCE 88 D. [1.2.110] COMMON LAW TORT CLAIM 88 E. [1.2.111] NLRA 89 [1.2.112] ALTERNATIVES 89 A. [1.2.113] WORKERS’ COMPENSATION 89 B. [1.2.114] SERIOUS AND WILLFUL MISCONDUCT 89 C. [1.2.115] PRIVATE ATTORNEYS GENERAL ACT 90 D. [1.2.116] THIRD PARTY LAWSUITS 91 E. [1.2.117] CRIMINAL LIABILITY 91 F. [1.2.126] CIVIL LIABILITY 94 G. [1.2.127] WORKPLACE VIOLENCE 95 [1.2.128] APPENDIX 95 Chapter H E A L T H A N D S A F E T Y L A W S 1 §1.1 Health and Safety Laws “We came here to work, not to die.” Anonymous. Occupational safety and health is concerned with protecting the safety, Note health, and welfare of people in the workplace. Since 1950, the International Caution Labour Organization (ILO) and the World Health Organization (WHO) have shared a common definition of occupational health. Occupational Case Study health should aim to: Toolkit (1) Promote and maintain the highest degree of physical, mental, and social well-being of workers; Practice Pointers! (2) Prevent ill-heath among workers caused by their working conditions; (3) Protect workers from factors adverse to their health in their employment; (4) Place and maintain workers in occupational environments adapted to their individual physiological and psychological conditions; and (5) Foster a safe and healthy work environment. The following chapters discuss the two agencies responsible for oversight of health and safety in the workplace: Federal Occupational Health and Safety Administration (Fed/OSHA) and the California Occupational Health and Safety Act (Cal/OSHA) and the Division of Occupational Safety and Health (DOSH) that administers and enforces Cal/OSHA. 1
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