Table Of ContentVolume
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
Description:Jora Trang . C. [1.2.57] TIMING OF INSPECTIONS AFTER COMPLAINT. 49 . fatality report filed with DOSH, or a complaint filed by a worker, worker
