Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, August 25, 2023

BREAKING: If Employer Commits Unfair Labor Practice Before Union Election, Union Is Automatically Recognized

In a total game-changer, the NLRB has ruled today that, where an employer commits unfair labor practices before a union election, the union is automatically recognized and the employer must bargain. 

It doesn't appear to apply to every unfair labor practice in every election. But it will force employers to behave better before union elections or risk having the union automatically recognized. Here's a summary:

  • It applies where a majority of employees have said they want the union to represent them and the employer either challenges the union majority and demands an election.
  • It applies if the employer refuses to bargain without filing a petition for an election and challenges the election due to unfair labor practices.
  • It applies if the union has filed a petition for an election.
  • If the employer commits an unfair labor practice that requires setting aside the election, the employer will be subject to a remedial bargaining order.
  • Employers are no longer allowed to frustrate the election process.
  • If the employer interferes with the election process,  NLRB will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer.
  • "Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way."

Here's what NLRB said about the new standard:

Under the standard we adopt today, an employer violates Section 8(a)(5) and (1) by refusing to recognize, upon request, a union that has been designated as Section 9(a) representative by the majority of employees in an appropriate unit unless the employer promptly139 files a petition pursuant to Section 9(c)(1)(B) of the Act (an RM petition) to test the union’s majority status or the appropriateness of the unit, assuming that the union has not already filed a petition pursuant to Section 9(c)(1)(A).140 Section 9(c)(1)(B) of the Act grants employers an avenue for testing the union’s majority through a representation election if the Board, upon an investigation and hearing, finds that a question of representation exists. In order to reconcile the provisions of Section 8(a)(5) and Section 9(a), which require an employer to recognize and bargain with the “designated” majority representative of its employees, with the language of Section 9(c)(1)(B) granting employers an election option, we conclude that an employer confronted with a demand for recognition may, instead of agreeing to recognize the union, and without committing an 8(a)(5) violation, promptly file a petition pursuant to Section 9(c)(1)(B) to test the union’s majority support and/or challenge the appropriateness of the unit or may await the processing of a petition previously filed by the union.  

 However, if the employer commits an unfair labor practice that requires setting aside the election, the petition (whether filed by the employer or the union) will be dismissed, and the employer will be subject to a remedial bargaining order. Thus, this accommodation of the Section 9(c) election right with the Section 8(a)(5) duty to recognize and bargain with the designated majority representative will only be honored if, and as long as, the employer does not frustrate the election process by its unlawful conduct. As the Supreme Court observed in Gissel, Section 9(c)(1)(B) was not intended to confer on employers “an absolute right to an election at any time; rather, it was intended, as the legislative history indicates, to allow them, after being asked to bargain, to test out their doubts as to a union’s majority in a secret election which they would then presumably not cause to be set aside by illegal antiunion activity.” 395 U.S. at 599. If the employer commits unfair labor practices that invalidate the election, then the election necessarily fails to reflect the uncoerced choice of a majority of employees. In that situation, the Board will, instead, rely on the prior designation of a representative by the majority of employees by nonelection means, as expressly permitted by Section 9(a), and will issue an order requiring the employer to recognize and bargain with the union, from the date that the union demanded recognition from the employer. 

Our focus, then, is on the unlawful conduct of the employer that prevents a free, fair, and timely representation election. Given the strong statutory policy in favor of the prompt resolution of questions concerning representation, which can trigger labor disputes, we do not believe that conducting a new election—after the employer’s unfair labor practices have been litigated and fully adjudicated – can ever be a truly adequate remedy. Nor is there a strong justification for such a delayed attempt at determining employees’ free choice again where the Board has determined that employees had already properly designated the union as their majority representative, consistent with the language of the Act, before the employer’s unfair labor practices frustrated the election process. Simply put, an employer cannot have it both ways. It may not insist on an election, by refusing to recognize and bargain with the designated majority representative, and then violate the Act in a way that prevents employees from exercising free choice in a timely way.

An employer that refuses to bargain without filing a petition under Section 9(c)(1)(B) may still challenge the basis for its bargaining obligation in a subsequently filed unfair labor practice case. However, its refusal to bargain, and any subsequent unilateral changes it makes without first providing the employees’ designated bargaining representative with notice and an opportunity to bargain, is at its peril.

This will make it much easier for workers who are organizing a union to have their union recognized. And it should stop much of the a**hattery that goes on during union-busting. 

Union yes! 

Thursday, August 17, 2023

EEOC Issues New Rules for Pregnant Workers

The Pregnant Workers Fairness Act is now in effect, as of June 27, 2023. It applies to most employers with 15 or more employees. It requires employers to grant reasonable accommodations to employees with known limitations related to pregnancy, childbirth, or related medical conditions.

EEOC has provided details on what is required:

Covered employers cannot: 
  • Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
  • Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation;
  • Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
  • Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
  • Interfere with any individual’s rights under the PWFA.

They provide examples of what may constitute reasonable accommodations:

  • the ability to sit or drink water; 
  • receive closer parking; 
  • have flexible hours; 
  • receive appropriately sized uniforms and safety apparel; 
  • receive additional break time to use the bathroom, eat, and rest; 
  • take leave or time off to recover from childbirth; and 
  • be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.  
EEOC states: "Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer." This is the same as the standard for reasonable accommodations under the Americans With Disabilities Act.

While employers were required to provide some accommodations before this law, the standards were much more lax and gave employers more leeway. This new law makes clear that employers must grant reasonable accommodations to pregnant, nursing, new moms, people recovering from miscarriages, people with post-partum depression, and other pregnancy-related and post-pregnancy-related conditions.

This new is in addition to Title VII, the Americans With Disabilties Act, PUMP Act, the Family and Medical Leave Act, and any state and local laws that may apply.

If your employer has denied you a reasonable accommodation for a pregnancy-related condition, contact an employee-side employment lawyer in your state about your rights.

Thursday, August 10, 2023

New NLRB Handbook Rules Means Many Employer Handbook Provisions Are Illegal

NLRB has issued a new standard for evaluating employer work rules and employer handbooks. It applies to non-union and union workplaces that are covered under the National Labor Relations Act, which means most employers are covered. Under the new standard, the person challenging a rule or handbook provision must prove that the challenged rule has a reasonable tendency to chill employees from exercising their rights to engaged in concerted activity to discuss or change working conditions. If so, then the rule is presumptively unlawful. 

However, the employer may rebut the presumption by proving that the rule advances a legitimate and substantial business interest and that the employer is unable to advance that interest with a more narrowly tailored rule.

This is a sea change from the prior standard, and it will make it much easier for employees to challenge rules. The new standard appeared in a case where the following rules were successfully challenged:

  • Confidentiality of investigations
  • Limiting personal calls and emails to family emergencies
  • No personal electronic devices or cell phones to be kept in lockers and used only on breaks
  • No behavior that harms the business reputation of the company
  • No activity that adversely reflects on the integrity of the company
  • No photos
  • No recordings

If these sound familiar, it's because similar rules are in many company handbooks. If they're in yours, you may be able to file an NLRB charge against employer if you want to challenge the rule.

The Board explained how to evaluate a "chilling effect":

In determining whether an employer’s rules or policies restrict or chill employee’s rights to engage in protected activity, one must consider if: “(1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; (3) or the rule has been applied to restrict the exercise of Section 7 rights.” Lutheran Heritage Village—Livonia, 343 NLRB 646, 646–647 (2004). Where a rule or policy explicitly restricts Section 7 activity or can be reasonably read to restrict such activity, the Board is required to evaluate the employer’s asserted business justification “[t]o strike a proper balance between the employees’ rights and the Respondent’s business justification.” Caesar’s Palace, 336 NLRB 271, 272 (2001). The Board must accommodate the respective rights of the parties “with as little destruction of one as is consistent with the maintenance of the other.” NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956).

I know. Blah, blah, blah. What this means is if you would think a rule prohibited you from engaging in discussions or activities with coworkers regarding working conditions, it's probably illegal. If the rule was made because of union activity or because employees were discussing a potential union, it's probably illegal. If the rule has been applied to restrict employees' ability to discuss or take action together regarding working conditions, it's probably illegal. 

Some rules that may well be affected by this ruling, in addition to the ones I mention above, include:

  • Not saying negative things about the company
  • Restricting social media use and comments about the company
  • Limiting or regulating the ability of employees to make safety complaints
  • Restricting meetings or discussions with coworkers
  • Restricting the circulation of petitions
  • Prohibiting or limiting comments to the media or government agencies
  • Prohibiting insubordination
  • General civility rules

You don't have to be disciplined under these rules in order to challenge them. So if you think a rule is illegal, you can contact the NLRB about it. If you have been fired for violating a rule you think may be illegal, especially if you were fired for discussing working conditions with coworkers, contact an employee-side employment lawyer in your state about your rights.

Thursday, July 20, 2023

Don't Expect Noncompete Relief Until Next Year Says FTC

 Although we've been hoping that the FTC would come through on its proposed rule banning or limiting noncompete agreements, it looks like we'll have to wait. They've announced they won't be voting on the final rule until April 2024. 

That's bad news for workers. Noncompetes have been abused to suppress wages, prevent employees from looking for better jobs, create fear among employees that they will be terminated and unable to work, and force employees to work in terrible conditions. They've been used against sandwich makers and receptionists. 

That doesn't mean you have no remedies. Depending on your state law, there are defenses to noncompete agreements.

While Florida is one of the most anti-employee states in the nation, both federal and Florida antitrust law require that employers have a legitimate interest other than preventing competition in order to enforce a noncompete agreement. Absent a legitimate interest, the agreement violates antitrust laws. Some other states have additional defenses to enforcement.

When in doubt about your noncompete agreement, get some advice from an employee-side employment lawyer in your state.

Thursday, July 6, 2023

Did The Supreme Court Just Make It Legal To Discriminate?

As I'm sure you've heard unless you've been in outer space for the past couple weeks, the Supreme Court ruled that a person who thinks she might want to have a web designer business (but who has never actually designed a website in said business) could refuse to design a website for a gay marriage that she was never actually asked to design. SMH. Let's put aside the issue of whether this should have been a case in the first place, and deal with the question that is on everyone's mind: 

Is it legal to discriminate now?

Answer: Well, no. Not really. But maybe. Sigh.

The actual ruling says this: "Held: The First Amendment prohibits Colorado from forcing a website designer to create expressive designs speaking messages with which the designer disagrees." Seems not so bad, right? And it has nothing to do with hiring and firing, so it has no express immediate effect on employment discrimination laws. But the decision does open the door to future interpretations that are pretty bad.

The interesting part of this ruling is that it isn't based on religion. The Court didn't say people can use their religion to discriminate. At least not yet. Well, at least not in this particular opinion. Instead, they based it on free speech.

So people are asking me, can I post a sign on my business that says, "We don't hire bigots or homophobes"? The answer is probably, but you probably could have done that before this decision. What you (probably) can't do is post a sign that says, "We don't hire evangelicals." And in places like my county which prohibits political affiliation discrimination, you (probably) can't post a sign saying, "We don't hire Republicans."

The fake web designer in this case swore up and down that she would accept business from LGBTQ customers, and that her only problem was with gay marriage websites. Do we believe her? Heck no. She doesn't even have an active web designer business yet, and the only alleged customer who asked about a gay marriage site is straight and says it never happened. But still. The Court focused not on discrimination against LGBTQ people, but on this: "Ms. Smith’s belief that marriage is a union between one man and one woman is a sincerely held conviction." They also focused on the fact that her alleged profession is creative one that is "expressive in nature."

So let's look into the future and assume she actually will eventually have a real website design business. Let's assume she will be so busy she needs staff. What will happen if a gay website designer who is married to a person of the same sex applies? Can she say that the business reflects her personal expression and her sincere beliefs prohibit her from endorsing gay marriage  by hiring such a person? Probably a stretch, but I can see it happening. Can she hire the person but say that her sincere beliefs prohibit her from providing insurance to his spouse? Very possible (see the Hobby Lobby case).

How will this case apply to employment law in the future? Well, I have some strong suspicions about how evangelical employers will try to apply it. But what about other employers? What if your beliefs are similar to those of The Chosen? What if your sincere belief is that those who deliberately misgender must, forever after or until they relent, be called by the opposite gender, and those who refuse to use non-binary pronouns, must forever after or until they relent, be referred to as they/them. Can you ask in interviews about the person's beliefs on pronouns and misgendering? Maybe. If so, can you automatically disqualify anyone who says their religion requires the opposite? Hmm. Unclear. If you hire them when they admit that they deliberately misgender due to their sincere beliefs, when you forever call them by the gender opposite that on their birth certificate can they claim sex or religious discrimination? Possibly.

As you can tell, I have lots of questions about this case and how it will apply to employment law in the future. Questions such as:

  • Can a man whose sincere belief says women belong in the home now refuse to work with women?
  • Can a woman whose sincere belief says that Black people are under the "Curse of Ham" and are thus inferior pay Black employees less than white ones? (This excuse was used to justify slavery).
  • Can an employer whose sincere belief is that women are suited only to secretarial work refuse to hire female truck drivers?

This "sincere belief" stuff cuts both ways.

  • Can an employer whose sincere belief is that anyone who voted for Trump is ethically deficient refuse to hire Republicans?
  • Can a woman whose sincere belief is that anyone who believes that abortion should not be allowed in cases of rape, incest, and for the health of the mother is unfit to lead anyone refuse to grant a promotion to Catholics?
  • Can a man whose sincere belief is that anyone who supports book banning is unfit to teach refuse to hire evangelical teachers?
I think these questions will be answered soon. The answer under the law a year ago is no to all of the above. But now, apparently anything goes. So hold onto your hats and just assume things will get crazy before they settle down.

Right now, employment discrimination is still mostly illegal. But that could change. Be ready.

Thursday, June 29, 2023

NLRB Says Employee Outbursts Regarding Working Conditions Are Protected

The Biden NLRB recently overturned a Trump-era case that allowed employers way too much discretion to fire employees who engage in alleged unprofessional behavior when discussing working conditions. The case involved a union activist who was fired. The behavior that resulted in the termination was described by the Administrative Law Judge as follows:

Colone spoke persistently and argumentatively,and made a brusque, impolite statement to an employee who was leaving the meeting that he should “just go ahead and leave” be-cause he wasnot needed; he also, upon Dean refusing to provide him with the paperwork related to the new overtime policy, told Dean that he was not doing his job.

 The NLRB said the harsher standard the GOP Board set was erroneous:

The Board has long held, with uniform judicial approval, that causation is not at issue where an employer defends a disciplinary action based on an employee's alleged misconduct in the course of union activity, and the Board determines that the misconduct was not sufficiently egregious to deprive the employee of the protection of the Act. Everyone agrees that the disciplinary action was motivated by conduct that the Board—in fulfilling its statutory responsibility to determine the scope of the Act's protection—has found to be protected. That the employer labeled the conduct abusive, disloyal, uncivil, or insubordinate does not bring its motive into question. Ozburn-Hessey Logistics, LLC, 366 NLRB No. 177, slip op. at 5 (2018), enfd. in relevant part 803 Fed. Appx. 876, 882-883 (6th Cir. 2020); Roemer Industries, Inc., 362 NLRB 828, 834 fn. 15 (2015) (explaining that where an employer defends disciplinary action based on an employee’s misconduct in the course of protected union activity, and the misconduct was not egregious enough to remove the protections of the Act, “the 8(a)(3) violation is established because the antiunion motive is not in dispute--the protected union conduct was the motive for the discipline”), enfd. 688 Fed. Appx. 340 (6th Cir. 2017). 

 The NLRB cited as an example of conduct that is protected:

A good example is the Eighth Circuit’s picket-line misconduct decision in Cooper Tire & Rubber Co. v. NLRB, 866 F.3d 885 (8th Cir. 2017), a case the General Motors Board simply ignored. In Cooper Tire & Rubber, the court enforced the Board’s order requiring reinstatement of a striker who had directed racist taunts at a van carrying replacement workers that had just crossed the picket line. It agreed with the Board’s application of the Clear Pine Mouldings standard and rejected the employer’s argument that Wright Line should apply. 866 F.3d at 889–890. It also rejected the argument that the Board’s order conflicted with the employer’s duty under Title VII, 42 U.S.C. §§ 2000e, et seq. Id. at 891- 892. The court explained that the striker’s picket-line jibes—racially offensive, stereotyped comments about food —did not create a hostile work environment, nor did Title VII create any legal obligation to fire the striker. Id. at 892.41 The Eighth Circuit’s decision is not anomalous.
The Supreme Court has said repeatedly that Title VII is not “a general civility code for the American workplace.” As the Court has explained, “offhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the terms and conditions of employment.” There is no obvious or inevitable conflict, then, between the Board’s approach as reflected in the setting-specific standards and Federal antidiscrimination law.
I can't tell you how often the "general civility code" language has been thrown at me in sexual and racial harassment cases, so it's good to see the NLRB saying what's good for the goose is good for the gander. You don't want a general civility code? Then you can't claim it when people are protesting or discussing working conditions.

I generally suggest that employees remain professional when discussing working conditions with management and coworkers. But the NLRB has made it much more difficult for employers to fire employees who are advocating for better working conditions. 

See? Elections matter. Vote well in 2024.


Thursday, June 22, 2023

What Rights Do Workers Have During Heavy Wildfire Smoke?

It looks like wildfire smoke is becoming a fact of life for many Americans. What rights do you have if your workplace is in one of the dangerously smoky areas? 

OSHA actually has a web page about wildfires. It says, among other things, “Each employer is responsible for the safety and health of its workers and for providing a safe and healthful workplace for its workers. Employers are required to protect workers from the anticipated hazards associated with the response and recovery operations for wildfires that workers are likely to conduct.”

They have a detailed Response page that includes links to requirements for many types of hazards. That page includes a link to a California publication on smoke.

 That publication discusses what steps can be taken by employers to protect both indoor and outdoor workers. For outdoor workers:

Options for limiting workers’ smoke exposure include postponing or shortening time spent outdoors; focusing on only performing high priority tasks; relocating workers or rescheduling work tasks to smoke-free or less smoky areas or times of the day; reducing outdoor workers’ physical activity and exertion levels; encouraging and ensuring workers take frequent breaks inside cleaner air spaces such as enclosed structures or vehicles with recirculating air; and encouraging and using air cleaners with HEPA (or other protective) filters in indoor working areas to reduce overall smoke exposure. In some cases, the use of particulate respirators should be considered to protect workers who cannot implement the exposure reduction recommendations listed above when performing outdoor work (see additional information below). Workers involved in post-fire cleanup activities clearly must be protected from exposure to ash and all other hazards (see sections pertaining to after-fire hazards) by using a range of control methods (e.g., dust suppression, personal protective equipment). When other measures are not sufficient to control a respiratory hazard, OSHA requires employers to provide respirators that are appropriate for the hazard and work situation. An OSHA-compliant respirator program names a qualified person responsible for administering the program and describes procedures for respirator selection, medical evaluation for safe respirator use, fit testing for tightfitting respirators, training on topics such as how to use and maintain respirators, and program evaluation.

But the publication also states: “The Occupational Safety and Health Administration (OSHA) is the regulatory entity for employee health and safety but, in about half of the states, a federal OSHA-approved state OSHA program regulates non-federal workplaces. There are currently no occupational standards specifically for wildfire smoke, except in California.”

For indoor workers, they state: “HVAC systems should be operated continuously while occupied in order to provide the minimum quantity of outdoor air for ventilation, as required by the standards or building codes to which the building was designed. For many office buildings, this is often in the range of 15–20 cubic feet per minute (cfm) per person, although it could be less in older buildings.” They provide details on what steps need to be taken to inspect and repair HVAC systems to protect from smoke. They provide additional information for protection of indoor workers: “In addition to assessing and if necessary modifying the function of the HVAC system, employers are encouraged to take other reasonable steps to reduce employee exposure to smoke, including alternate work assignments or relocation and telecommuting. Some buildings rely on open windows, doors, and vents for outdoor air, and some may have mechanical ventilation systems that lack a functioning filtration system to remove airborne particles. In these cases, the employees may need to be relocated to a safer location. Employees with asthma, other respiratory diseases, or cardiovascular diseases, should be advised to consult their physician for appropriate measures to minimize health risks. Respirators, such as N95s and other filtering facepiece respirators, may provide additional protection to some employees against environmental smoke. Employees whose work assignments require the use of respirators must be included in a respiratory protection program (including training, medical evaluations, and fit testing).”

New York, where wildfire smoke recently wreaked havoc, does have a Division of Safety and Health as part of their Department of Labor but I’m not finding anything specific relating to smoke hazards. They do have a website here: https://dol.ny.gov/safety-and-health

The bottom line is that it looks like New York and many other states don’t have specific safety standards on outdoor smoke, but they probably should. Employees nationwide are covered by OSHA. Here's what OSHA says generally about workplace safety:

You have the right to a safe workplace. The Occupational Safety and Health Act of 1970 (OSH Act) was passed to prevent workers from being killed or seriously harmed at work. The law requires that employers provide their employees with working conditions that are free of known dangers. OSHA sets and enforces protective workplace safety and health standards. OSHA also provides information, training and assistance to workers and employers. Workers may file a complaint to have OSHA inspect their workplace if they believe that their employer is not following OSHA standards or that there are serious hazards. Contact OSHA at 1-800-321-OSHA (6742) if you have questions or want to file a complaint. We will keep your information confidential. We are here to help you.

Most of the OSHA-specific standards regarding smoke involve workplace fires. But employers need to protect employees from hazardous conditions, and that includes wildfire smoke. Employers need to take sensible precautions to protect employees. For employees who have medical conditions that place them at high risk for smoke exposure, they need to consider measures such as remote work, alternate assignments, relocation, respirators, and filters. For indoor employees who aren’t particularly vulnerable, employers still need to protect indoor workers with functional HVAC systems, filtration, PPE if necessary, and relocation or remote work as necessary. For outdoor workers, employers should be providing respirators, frequent breaks into clean air spaces, and any other protective equipment necessary.

If you feel you are being put in unsafe conditions, notify OSHA and ask them to inspect the workplace. OSHA has a page about when you can refuse to perform work. It says:

If you believe working conditions are unsafe or unhealthful, we recommend that you bring the conditions to your employer's attention, if possible.

You may file a complaint with OSHA concerning a hazardous working condition at any time. However, you should not leave the worksite merely because you have filed a complaint. If the condition clearly presents a risk of death or serious physical harm, there is not sufficient time for OSHA to inspect, and, where possible, you have brought the condition to the attention of your employer, you may have a legal right to refuse to work in a situation in which you would be exposed to the hazard. (OSHA cannot enforce union contracts that give employees the right to refuse to work.)

Your right to refuse to do a task is protected if all of the following conditions are met:

§  Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and

§  You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and

§  A reasonable person would agree that there is a real danger of death or serious injury; and

§  There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

You should take the following steps:

§  Ask your employer to correct the hazard, or to assign other work;

§  Tell your employer that you won't perform the work unless and until the hazard is corrected; and

§  Remain at the worksite until ordered to leave by your employer.

If your employer retaliates against you for refusing to perform the dangerous work, contact OSHA immediately. Complaints of retaliation must be made to OSHA within 30 days of the alleged reprisal. To contact OSHA call 1-800-321-OSHA (6742) and ask to be connected to your closest area office. No form is required to file a discrimination complaint, but you must call OSHA.

In a situation involving wildfire smoke, I would expect that very few situations outside the range of the actual fire rise to the level of presenting a risk of death or serious physical harm unless you have an underlying health condition, so I’d recommend that most workers follow the steps OSHA requires: Bring it to the employer’s attention. If they don’t fix it or provide appropriate protective equipment or otherwise eliminate the danger, file a complaint with OSHA and ask for an inspection. 

Only if the work is so dangerous that you are risking serious physical harm should you refuse to do the work. 

If your employer retaliates for reporting them to OSHA, report the retaliation to OSHA or contact an employee-side employment lawyer in your state.