Right-to-act legislation

On September 3, 1991, 25 men and women perished in a fire in a chicken-processing plant in Hamlet, North Carolina. Workers were trapped inside the burning building because managers of the plant had illegally bolted emergency exits in order to prevent possible theft of chickens. The American public reacted with outrage to news of the fire because it was recognized that the employees' deaths could have been prevented if Occupational Safety and Health Administration (OSHA) standards regarding access to fire exits had been enforced. As a result, labor representatives have repeatedly called for new, more effective means for protecting Americans from the hazards of injury, illness, and death at their workplaces.

In North Carolina, the site of the 1991 poultry plant fire, Worker Right to Act (RTA) legislation has been enacted in an effort to meet those demands, and such legislation is being proposed in other states. RTA legislation is designed to give workers some of the power they need to avoid or prevent exposure to such workplace hazards as those leading to the poultry plant fire and those associated with use of toxic chemicals . It is important to note that the goals of RTA legislation overlap with those of Toxics Use Reduction legislation (TUR). TUR laws, which have been enacted in at least 26 states, require business facilities to reduce their use of toxic substances, thus protecting workers and other community residents.

Although North Carolina has adopted a number of RTA provisions through a series of separate statutes instead of in a comprehensive, single package, RTA laws are only in the proposal stage in most states in which they are being advocated. In New Jersey, an initial four-year campaign for adoption of Worker and Community RTA was unsuccessful. Advocates of RTA in that state were optimistic that future efforts will be successful and that their experiences would benefit groups and individuals working for the enactment of RTA laws in other states. Several years later, Passaic County in New Jersey passed the nation's first right-to-act law in the spring of 1999. The measure allows 25 or more neighbors and/or workers to petition the county Health Officer for creation of a Neighborhood Hazard Prevention Advisory Committee to monitor a specific facility. In addition, such committees have the authority to conduct walk-through surveys of the plant, accompanied by technical experts. If a company refuses to cooperate, the county can sue on behalf of the committee.

In Michigan, a comprehensive RTA bill was first considered in 1993 and has been reintroduced before the state legislature several times since then. Therefore, the bill proposed in Michigan is used here to illustrate the provisions of a comprehensive RTA statute. Second, some of North Carolina's RTA provisions are described to provide further examples of RTA mechanisms.

Michigan's proposed RTA law

A Worker RTA bill considered in Michigan in 1993 includes five sets of RTA protections. First, the bill mandates that worker-management committees be established at each worksite where the number of employees regularly exceeds ten. If there is a government-certified labor organization at the worksite, it will select the workers' representatives. If there is no certified labor organization, nonsupervisory employees will select their own representatives. The committee must: (1) inspect the site at least monthly for existing or potential safety, health, and environmental problems; (2) investigate accidents and exposures that have the potential to harm employees and the environment ; and (3) conduct annual reviews. The committee's duties are cross-referenced to a proposed Toxics Use Reduction and Community Right to Act (TUR/CRTA) bill.

Second, the Michigan Worker RTA bill mandates that each employer develop and implement a worksite safety and health plan. Such plans must provide for periodic inspections of the worksite and require documentation of hazards and actions taken to correct them.

Third, there are provisions giving any employee or employee representative the right to request an inspection by the Michigan Department of Labor or the Michigan Department of Health if he or she believes that there is a violation of a standard and that that violation threatens physical harm to an employee. Before a representative of one of those agencies makes a determination as to imminent danger, an employee may choose not to perform an assigned task if the employee has a reasonable apprehension of death or serious injury and he or she reasonably believes that no less drastic alternative is available.

Fourth, the Michigan bill increases the authority of state inspectors regarding citations and penalties and authorizes employees to contest the failure of such inspectors to conduct inspections and issue citations. There are substantial penalties for willful or repeated violations of the Act. Fifth, an employer cannot discharge an employee or in any way discriminate against an employee or job applicant because he or she has filed a complaint under the Act or testified at a proceeding under the Act.

It is significant that the Michigan TUR bill, entitled the "Toxic Use Reduction and Community Right to Act Bill" (TUR/CRTR), also includes RTA provisions. A summary of some provisions of Michigan's TUR/CRTA bill illustrates the interrelationship between RTA and TUR laws. First, TUR/CRTA establishes a goal of a 50% reduction in toxics use and toxics waste generation over a period of five years, thus reducing workers' exposure to toxics. Second, companies and governmental bodies that must report information under the federal Emergency Planning and Community Right to Know Act (EPCRA) must conduct audits of toxics used and generated as waste, and they must prepare plans and set goals for reducing the amounts of those toxics at their facilities. Then, annual reports must be filed, documenting progress in reaching those goals. Third, communities are granted rights to monitor business facilities through "community environmental committees." This provision is cross-referenced to workers' rights to investigate hazards under the Worker RTA bill. Also, workers, through their committees established under Worker RTA, have the opportunity to review and provide input on the facility's TUR plan before it is completed. Fourth, there are provisions giving workers and community members the right to take companies to court to compel them to comply with the TUR/CRTA law.

North Carolina's RTA statutes

North Carolina's RTA statutes include some of the same kinds of mechanisms in Michigan's Worker RTA bill, but, overall, they are not as comprehensive. For example, North Carolina requires workplace safety committees and the establishment of health and safety programs, but those requirements are imposed only on employers of 11 or more employees if those employers have a poor "experience rating" under workers' compensation laws. (A "1.5" rating or worse is the measure used.)

North Carolina's RTA statutes do include several provisions which are not in the Michigan bill. North Carolina has created a special emphasis inspection program to target employers with high rates of violations or high rates of illness, injury or death. Also, an interagency task force has been created to study and issue a report setting out a plan for reorganization of the occupational health and safety and fire safety networks within North Carolina.

Significance of RTA laws

Labor leaders and workers in Michigan and in other states continue to advocate adoption of RTA and are optimistic that it will be adopted as leaders and citizens become aware of the need for it and its benefits. RTA laws are designed to lead to better enforcement of existing OSHA standards. Under RTA, worker-management committees conduct inspections of a workplace on a regular basis instead of waiting for OSHA or its state counterpart to do so. Thus, management and workers, as a team, become the primary watchdogs for the work facility. A major reason for the lack of enforcement by OSHA and its state counterparts is their lack of funding for inspectors. Use of worker-management committees provides a means of protecting workers despite scarce government resources.

By mandating that employers prepare worksite safety and health plans and that employee representatives be included in that planning process, RTA laws are designed to prompt employers and their employees to take a proactive stance with respect to workplace hazards. Workers are included in planning because they are on the job on a dayto-day basis and are in a good position to identify hazards and recommend safer ways of working.

An important feature of RTA laws is that protections are extended to non-unionized as well as unionized workers. This is significant in view of figures showing that as of 1993 union membership in the United States had shrunk to a five-decade low—16% of the work force.

Worker RTA also recognizes that even workers who know about on-the-job hazards often lack viable alternatives for safer ways to earn a living and support their families. RTA provides the worker with mechanisms for reporting hazards as well as the right to refuse to perform an assigned task because of a reasonable apprehension of death or serious injury. Also, anti-discrimination provisions encourage workers to exercise their rights under the RTA law.

Finally, the interrelationships between the goals and provisions of RTA and TUR statutes and the fact that such laws are being supported by a coalition of labor interests and environmentalists appear to signal a shift in public policy in this country. For decades, United States laws have divided laws on health and safety regulatory authority according to site: OSHA in the workplace and the Environmental Protection Agency (EPA) outside the workplace. Also, existing laws have mandated different approaches to regulation of different media pursuant to such separate laws as the Clean Air Act , the Clean Water Act , and the Occupational Safety and Health Act . Supporters of RTA and TUR laws view workplace and environmental problems as interrelated parts of an integrated "whole." Therefore, the provisions of RTA and TUR have been drafted to reflect an holistic approach to regulation. New Jersey's experience, however, suggests that environmentalists, community leaders, and workers need to work together more closely to secure adequate right-to-act legislation. Many environmentalists do not fully understand the intensity of the fear of unemployment among workers, and their perception that job loss results from environmental regulation.

In terms of right-to-act legislation, Canada has progressed further than the United States. As of January 2002, Canadian workers are guaranteed the right to refuse dangerous work as well as the right to report unsafe conditions and to participate in workplace health and safety committees. It remains to be seen whether legislators and citizens throughout the United States will be convinced that enactment of RTA laws is an appropriate way to deal with hazards faced by American citizens within and outside of their workplaces. Ralph Nader pointed out during his presidential campaign in 2000 that not a single control standard for toxic chemicals was passed during the Clinton administration, thus reflecting the longest period of inactivity in OSHA's history. Nader's platform called for national right-to-act legislation, defined as "an unambiguous statutory right for employees to refuse dangerous work." Although job security remains a pressing concern for American workers, the incidents that have focused public attention on workplace hazards over the last twenty years have brought about a fundamental shift in public opinion. In the words of Frances Lynn, "ordinary people are challenging the assertion that a regrettable but necessary cost of business is environmental damage and threats to human health."

[Paulette L. Stenzel and Rebecca J. Frey, Ph.D. ]

RESOURCES

PERIODICALS

"Exits Blocked, 25 Die As Blaze Sweeps Plant." Chicago Tribune, September 4, 1991.

Garland, S. B. "What a Way to Watch Out for Workers." Business Week, September 23, 1991.

Lynn, Frances M. "Public Participation in Risk Management Decisions: The Right to Define, the Right to Know and the Right to Act." Risk: Issues in Health and Safety 1 (1990): 95–102.

Stenzel, P. L. "Right to Act: Advancing the Common Interests of Labor and Environmentalists." 57 Albany Law Review (1993): 1–40.

Young, Jim. "Jersey County Gives Workers and Residents 'Right to Act' Against Corporate Polluters. Labor Notes May, 1999.

OTHER

Engler, Rick. Right to Act Backgrounder. Lawrenceville, NJ: New Jersey Work Environment Council, October 28, 2001.

Industry Canada. A Canadian Guide to Occupational Health and Safety. Sydney, Nova Scotia: University College of Cape Breton, 2002.

Michigan Senate Bill 946 (1992).

Nader 2000 News Room. Statement on Occupational Safety and Health. Issued October 31, 2000.

ORGANIZATIONS

New Jersey Work Environment Council (NJWEC), 1543 Brunswick Avenue, Lawrenceville, NJ USA 08648-4627 (609) 695-7100, Fax: (609) 695-4200, Email: [email protected], <http://www.njwec.org>