Unsafe work

Most advice about workplace safety is a list of tips. This is a list of rights, and every one of them has a section number.

Your employer already has to have a written safety program

Labor Code § 6401.7(a):

"Every employer shall establish, implement, and maintain an effective injury prevention program."

Every employer. Not large ones, not dangerous industries — every one. The program has to be in writing under § 6401.7(d), and § 6401.7(a) says what it must contain:

• the person responsible for implementing it
• a system for identifying hazards, with scheduled periodic inspections
• methods for correcting unsafe conditions in a timely manner
• training
• a communication system "designed to encourage employees to inform the employer of hazards at the worksite without fear of reprisal"
• a system for ensuring employees comply with safe practices
• a workplace violence prevention plan conforming to § 6401.9

The regulation that implements it, 8 CCR § 3203, adds the part you can act on today.

You are entitled to a copy of the program, and the employer has five business days to give it to you.

§ 3203(a) requires the employer to make the Program available to employees "within five business days of request." It also requires a procedure to investigate every occupational injury or illness, and records of inspections and training kept for at least one year.

Ask for it in writing and keep the date. If the program does not exist, or the inspections were never done, or your injury was never investigated, that is documented before anyone starts arguing about it — and it matters in a serious-and-willful petition under § 4553 and in any third-party case. Serious and wilful misconduct.

You can refuse work that is a real and apparent hazard

Labor Code § 6311:

"No employee shall be laid off or discharged for refusing to perform work in the performance of which this code … will be violated, where the violation would create a real and apparent hazard to the employee or their fellow employees."

And if you are laid off or discharged anyway, § 6311 gives "a right of action for wages for the time the employee is without work as a result of the layoff or discharge."

Read the condition, because it is narrower than "I think this is dangerous." Two things have to be true: the work would violate the code, an occupational safety standard, or a safety order; and that violation would create a real and apparent hazard.

Which is why the sequence matters. Say specifically what is unsafe and what rule it breaks, say it in writing if you can, and say it before the shift rather than after. "I am not doing that" is a refusal. "The guard is off the press and § 4558 requires it" is a § 6311 refusal.

And you cannot be punished for reporting it

Labor Code § 6310(a) protects you for:

• complaining about safety or health to Cal/OSHA, to any government agency, to your employer, or to your own representative
• instituting or testifying in a proceeding about employee safety rights
• participating in an occupational health and safety committee
• reporting a work-related fatality, injury or illness, requesting access to records, or exercising any right under the occupational safety and health laws

§ 6310(b) gives an employee discriminated against for a bona fide complaint "reinstatement and reimbursement for lost wages and work benefits," and makes an employer's wilful refusal to rehire or reinstate a misdemeanour.

§ 6310(c) reaches your family. An employer may not retaliate against a family member of a protected person either.

The deadline is one year. Labor Code § 98.7(a)(1) — a complaint to the Labor Commissioner must be filed "within one year after the occurrence of the violation," extendable for good cause. That clock runs from the retaliation, not from the injury.

And § 132a is a separate remedy inside the workers' compensation system for discrimination because you filed a claim. The two are not the same statute and they do not share a deadline. Retaliation and § 132a.

Where fatigue and repetitive work fit

8 CCR § 5110 requires an employer to run a repetitive motion injury program — but the trigger is narrow, and almost nobody knows what it is.

All five of these must be true:

1. More than one employee has been injured
2. the injuries were predominantly caused (50% or more) by a repetitive job, process or operation
3. the employees performed the same repetitive task
4. the injuries were musculoskeletal, and a licensed physician objectively identified and diagnosed them
5. they were reported within the last 12 months

The "more than one" is the part that surprises people. One person with carpal tunnel does not trigger § 5110. Two people on the same line does. So whether a co-worker also reported it is a fact worth knowing, and it is a fact your employer has in the § 3203 records you can ask for.

Where the standard does apply, the program must include a worksite evaluation, control of the exposure through engineering or administrative controls — "job rotation, work breaks" is the regulation's own example — and training.

Fatigue and shift work. · Cumulative trauma.

None of this depends on your immigration status

Labor Code § 3351 covers workers regardless of status, and § 1171.5 applies the state's labor and employment protections regardless of status. Immigration status and workers' compensation.

What to do this week

Ask for the injury and illness prevention program in writing. Five business days, 8 CCR § 3203(a). Keep the request and the date.

Write down the hazard, the rule it breaks, and who you told. Names, dates, exact words.

Photograph the condition before it is corrected — and it may well be corrected the day after you report it, which is a good outcome and destroys the evidence.

If you are disciplined for any of it, note the date. One year from that date, not from the hazard, under § 98.7(a)(1).

And if you are hurt, report it and file the DWC-1. Safety complaints and compensation claims are separate tracks. The first 72 hours.

Common questions