Posts Tagged safety

Do homeless employees have any legal right to get out of doing the dangerous day labor jobs?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

If day laborers see that working conditions look too dangerous or difficult for them, they can opt out of doing the work. They are not necessarily entitled to be assigned to different work, but opting out of something dangerous is the best way to avoid getting sick or injured.[i]

If an employee starts the work and then quits when he discovers that it is risky, he is still entitled to get the minimum wage for the time he worked, whether or not he finished the assigned task. This is basic contract law. The worker agrees to work and the employer agrees to pay for the work. If the worker does part of the job, he is entitled to part of the pay.[ii]
Many workers guess that construction companies, landscapers, and other contractors bring in day laborers for work that involves heavy lifting, harsh chemicals, and other things that are hard on the body because they don’t want to risk injuring the full-time employees who are covered by workers’ compensation insurance.Some employers may also think that temporary or day laborers don’t have any way to make a legal claim for workers’ compensation benefits.  But, in fact, even day laborers are entitled to have their work-related medical expenses covered by the employers’ workers’ compensation insurance.[iii]

Workers’ compensation programs exist to efficiently resolve workplace injury claims so that workers and employers do not have to go through the expense and long processes involved with a negligence case in court.[iv] The Occupational Safety and Health Administration (OSHA)[v] regulates workplace safety. That organization advises employees at unsafe or unhealthy work sites to take steps to avoid danger:

1. Ask the employer to fix the hazard.
2. Ask the employer to assign you to different work.
3. Inform the employer that you will not do the hazardous work.
4. Stay at the work site until the employer requires you to leave.[vi]

These steps seem more applicable to permanent workers than temporary workers, but they are still a logical progression. If taking those steps does not result in your getting safer work, you can file a complaint with OSHA.[vii] Your state might also have an occupational safety and health plan under OSHA’s approval.[viii] If you have stayed at the job and become injured or sick due to unsafe or unhealthy conditions there, you should file a worker’s compensation claim and also make sure that OSHA knows how you got hurt or sick.
For either or both of these claims, seek help from the nearest legal aid office or homeless advocacy group.[ix] They will help you collect the medical records necessary to document your suffering. These claims processes involve a lot of data collection and many formal procedures.
Once you have filed your claim form, either through OSHA or the state’s workers’ compensation office, you should expect to have meetings with investigators. The investigators will want to know everything about the job site, the other workers, the supervisors, the weather, the tools, the pace, your health going into the job, and many other details.

Unless you have filed an anonymous OSHA complaint, you will probably have to participate in an initial hearing to personally explain and answer questions about your injury or sickness in connection with the job. (If the job accepts responsibility for your injury or sickness, you won’t have to go through this hearing process; the workers’ compensation insurance will cover your medical costs as long as you follow the instructions they give you.)

If you do not prove your claim at that hearing, you can appeal the decision at another hearing through the workers’ compensation office. If that hearing is not successful, you can sue the workers’ compensation office and the employer in court for failing to properly follow the state workers’ compensation law.


[i] If the employer transported the employee to a far away work site and the employee opted out of the work as soon as he got there, he should not expect payment or a ride back, at least until the employer takes the other workers back. The contract was an exchange of work for pay. By backing out of the job before it started, the worker breached the contract. He can’t expect the former employer to spend money on him. Maybe the police can help. Phone calls to 911 are free. Explain your emergency as being removed from home and ask them to get you assistance from homeless advocates or any other nearby social services agency.[ii] Two sources that clearly explain basic employment law are: Merrick T. Rossein, Ed. THE EMPLOYMENT LAW DESKBOOK FOR HUMAN RESOURCES PROFESSIONALS (West, 2001) (See Section 4.) and Barbara Kate Repa, YOUR RIGHTS IN THE WORKPLACE (Nolo, 2005).

 

[iii] Locate your state Workers’ Compensation office through the blue pages of the phone book or on the Web at http://www.dol.gov/esa/regs/compliance/owcp/wc.htm. You will see that “employee” is defined to include any person who is supervised and paid by an employer.

[iv] It is not impossible for an injured employee or a deceased employee’s survivors to bring a negligence case against an employer. If the hazardous conditions were concealed or the law exempts the particular work arrangement from the workers’ compensation program, such a case is possible. A detailed demonstration of how to prove that kind of case is in Christopher M. Mislow, Cause of Action Notwithstanding Workers’ Compensation Statute Against Employer or Fellow Employee for Injury to or Death of Employee, 11 COA 717 (updated through 2006).

[v] The OSHA Web site is at http://www.osha.gov/.

[vi] OSHA’s instructions for dealing with a dangerous worksite are at http://www.osha.gov/as/opa/worker/refuse.html.

[vii] OSHA’s complaint Web site says that any employee can file a complaint about employment safety without giving his or her own name. The site includes an online complaint form and all of the necessary information about filing a complaint. http://www.osha.gov/as/opa/worker/complain.html

[viii] OSHA approved state occupational safety and health plans can be reached via http://www.osha.gov/dcsp/osp/index.html or your state’s department of labor and employment. http://www.dol.gov/esa/contacts/state_of.htm

[ix] Find legal aid offices through LawHelp at  http://www.lawhelp.org/ and homeless advocates through the National Coalition for the Homeless at http://www.nationalhomeless.org/resources/local/local.html.

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Do you have a legal right to live in habitable conditions if you are on someone’s property with permission?

**** The information written here is not legal advice and the author of this blog is not your lawyer.  These posts merely contain ideas to help you plan and organize your legal research and identify potentially helpful sources of law. ****

In group housing facilities, such as shelters and apartment buildings, there is a legally enforceable expectation of habitability. That legal obligation is connected to local and county health department ordinances and the law about leases. If a landlord violates the health code by having a water heater that leaks carbon monoxide, for example, the health department can declare that water heater unusable. But that does not give the resident anything more than a lack of hot water.      
The resident’s legal rights come in a warranty– the implied warranty of habitability. This implied warranty is identified in the statutes of some states and in the caselaw of other states.[i]    

 
The point of the warranty is that a rent-paying tenant is entitled to get a livable facility in exchange for his money. When the landlord does not maintain the building’s basic systems: plumbing, heating, electricity and other things that are under the landlord’s control such as infestations of hallways and other common areas, then the law says that the tenant is not getting what he is supposed to get out of the lease.    

  
A visitor does not have a lease agreement with a property owner. Even though the earlier part of this chapter showed that the relationship between a homeless visitor and a homeowner could be interpreted according to contract law, it also demonstrated that unlike an ongoing lease type of contract, the arrangement between someone staying thanks to the owner’s courtesy, possibly in exchange for some chores, is not a contractual right to prolonged housing. The owner’s motivation in allowing someone to stay at his place as a favor is basically a charitable one. The owner’s motivation in renting spaces to tenants, by way of leases, is the standard business motivation-to make money.       

Having to satisfy all of the codes– fire codes, health codes, tax codes, electrical codes[ii] is a legal responsibility that comes with being in the business of providing housing. Shelters are in the non-profit business of housing people which is why they have to follow the codes.      

Homeowners who do not rent out space do not necessarily keep their places in top condition. They may have learned to live with a faulty toilet or a failing furnace or flickering lights. They may not even live at the place where they agree to allow a homeless person to stay. Whether or not they live there, they have not established a contractual obligation to maintain the property in a particular condition if they have not entered into a lease with the visitor or they do not have standard legal obligations connected with being in the business of renting property. 

     
A homeless person living in a place without paying for it can get out of the sickening, dangerous, or injurious conditions of the building by simply leaving; it is not as if he is walking away from money that was paid in a down payment or rent. Being able to simply walk away without violating a deal or owing anything is even more proof that he does not have an enforceable contract for habitable living conditions. There are certainly many variations on the relationship between property owner and homeless visitor that can create a contractual obligation of habitability, but generally the obligation will not arise.     

There is, however, another possible legal avenue by which a homeless visitor might be able to take action against unsafe or unhealthy housing conditions if he has suffered harm from those conditions. This alternative legal claim would be negligence. Property owners have long been legally responsible for preventing visitors from being injured or sickened on their property. This area of negligence is specifically known as “premises liability.”     
The law of premises liability comes from cases more than statutes or regulations, and it varies according to the history of cases in every state. Basically, it means that when someone is injured on another person’s property as a result of the property owner’s failure to repair or warn about a danger on the property, the owner has to pay damages to the injured person.    

  
Warnings are not always a legal way of avoiding responsibility for someone’s injury on property. Nobody can get away with saying, “it’s not my fault he got burned in a fire; I told him the wiring was old.” On the other hand, sometimes just warning visitors against the danger can satisfy the owner’s legal duty. Everyone has seen electrified fences with signs that say “high voltage.” The fence owner with such signs would probably not ordinarily be liable for electrocuting someone who ignored those signs and touched the fence.    
In some places, trespassers do not have a legal right to sue for injuries caused by dangerous property. In those jurisdictions, courts have decided that property owners cannot be expected to protect people who go on property without their knowledge or at least without permission. Property owners definitely cannot purposely cause something to harm trespassers.[iii] And, in most places, a property owner who knows his property well enough to be able to predict that something about it could cause sickness or injuries, (examples: broken sink could cut someone, bad water heater could lead to scalding, faulty furnace could cause carbon monoxide poisoning…) has a duty to prevent those problems from hurting people who are allowed there as well as trespassers.[iv]   

   
Negligence has been defined elsewhere in this blog. Here is how it applies to a premises liability problem: Think about a homeless person living in someone’s basement. The house’s main sewer pipe is under the floor of this basement. Every time there’s a heavy rain, the basement becomes flooded with sewage. The homeowner knows about this sewage flooding, but doesn’t know exactly what’s wrong with the sewage pipe. The homeless person develops a terrible bacterial infection from living in the basement that has repeatedly had these floods.     
Since the owner knew that there had repeatedly been raw sewage in his basement and everyone knows that raw sewage can be sickening, he had a duty to prevent the homeless visitor from getting sick from it. He breached that duty by either not cleaning his basement or not preventing new flooding. Since he breached his duty and harm was caused as a result of that breach, he can be found negligent. Being guilty of negligence will make him liable for the sick visitor’s medical expenses. He might also be ordered to pay punitive damages. In other words, the court might say that he has to additional money to the visitor as a way of being further punished for causing that visitor to get sick.


[i] Richard. A. Lord, Williston on Contracts §48:11 (4th ed. 1990 & Supp. 2006).

[ii] These health and safety codes are usually published in the county or local ordinances. In Justia, http://www.justia.com/us-states/ click on your state’s name and then, within the state resources page, look for the link to “city websites and city codes.”

[iii] The famous case conveying this legal prohibition involved a property owner who set-up a spring-loaded gun that would shoot as soon as someone opened the door to bedroom in his old farm house. He arranged the gun that way because trespassers had been entering his old farm house, while he was at his main house, and stealing things from it. He expected that the gun would serve to punish the next trespasser and deter any others who might have come. Katko v. Briney, 183 N.W. 2d. 657 (Iowa 1971). Similar cases involving spring guns had been on the books for years, often as criminal cases against the property owners. See, Homicide-Death of Trespasser by Spring Gun in Unoccupied House, 31 Yale L.J. 562 (1922).

[iv] To see a thorough comparison of relevant cases from throughout the country, go to Vitauts M. Gulbis, Modern Status of Rules Conditioning Landowner’s Liability Upon Status of Injured Party as Invitee, Licensee, or Trespasser, 22 A.L.R 4th 294 (1983 & Supp. 2006).

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