Worker Can’t Be Retaliated Against for Safety Complaints
Q My department at work uses various chemicals in our manufacturing process. To get rid of the fumes, the company uses two old vacuum-like systems that do the job. However, when these old systems break down, management insists that production continue while the systems are being repaired, which can take one or two days.
Although we are given masks to wear at these times, they are not enough to protect us from the fumes when the systems are down. In turn, I get bad headaches and sometimes feel dizzy because of this.
I have told management about this problem a few times, but it just ignores me. I don’t know who else to tell.
--R.D., Fullerton
*
A Employers have a duty to ensure the safety of their employees. It is illegal for them to retaliate against anyone who complains about safety issues.
Consider documenting your complaint in writing and keeping a copy of it. If your employer demotes or terminates you later, your letter will show that you have complained about the problem.
As a practical consideration, however, your main goal probably is solving the problem rather than becoming a whistle-blower or the subject of retaliation. You could complain to the Occupational Safety and Health Administration, which regulates and enforces workplace safety issues. It accepts anonymous complaints as well. If you are one of the few who have complained about the issue, however, your employer will probably know you were the one who contacted authorities.
Even though the employer should be providing a safe workplace instead of merely gas masks, consider buying yourself a better mask if the cost is nominal. That might be a good alternative if it solves the problem and minimizes your agitation of management. Also consider calling in sick on those days the fumes are too strong. Enlist the support of other employees who suffer from the same problem. Consider sending a joint letter to management.
The solution to your problem may vary based on its frequency. If your system breaks down only once a year, my advice would be different than if the problem occurred weekly.
--Don D. Sessions
Employee rights attorney
Mission Viejo
New Owner, Old Employees Q The company I work for was just sold. Is the new owner under any legal obligation to settle with the old union or hire any of the old employees?--D.R., Corona
*
A The answer to your question depends on a number of variables.
The first is the form of the sale. In a stock sale, the new owner inherits all of the obligations of the seller, including union contracts and collective-bargaining obligations. In an asset sale, the new owner does not inherit the seller’s union contracts but may be obligated to bargain with the union over wages, hours and working conditions if it hired a majority of the seller’s employees.
In an asset sale, the new owner is not automatically obligated to hire the seller’s employees. On the other hand, the new owner cannot use unlawful criteria in deciding whether to hire any of the seller’s employees. The new owner could not, for example, refuse to hire the seller’s employees based on their union activities, age, race or other protected criteria. The new owner may, however, establish legitimate, objective criteria that may have the effect of screening out many of the seller’s employees. Such criteria may include a lower wage scale than was previously in place, work rule changes or mandatory drug testing of applicants for employment.
Obviously, the labor market plays a role as well. If the seller’s employees are highly skilled and difficult to replace, the buyer may be compelled by the marketplace--if not by law--to retain them.
Finally, if the seller’s employees are to be terminated as a result of the sale, the seller has an obligation to negotiate with the union over the effects of the sale on employees. This would include the potential for severance pay, continuation of health coverage and possibly the right to transfer to open jobs in other facilities owned by the seller.
--James J. McDonald Jr.
Attorney, Fisher & Phillips
Labor law instructor, UC Irvine
Applying for Disability Benefits Q Is it possible to apply for disability when you’re unemployed? If so, how is it calculated?
--M.S., Irvine
*
A I assume that you are referring to State Disability Insurance maintained by the state rather than the disability benefits provided by a private employer. If you are currently receiving unemployment benefits, you cannot receive SDI benefits.
On the other hand, if you are not receiving unemployment benefits, you many be eligible to receive SDI benefits. Those benefits are determined by your highest quarterly earnings in a 12-month period before the date of your claim for benefits. (The exact 12-month period depends on when your claim begins.) For more detailed information regarding SDI benefits, you can write to the Employment Development Department, Disability Insurance, P.O. Box 13140, Sacramento, CA 95813-4140, or call (916) 227-0220.
--Kirk F. Maldonado
Employee benefits attorney
Riordan & McKinzie
