**** 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).
[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.