Feeling the Heat: How Outdoor Workers Can Advocate for Safer Conditions on the Job

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• If I work outside in California, what protections do I have during dangerously hot weather?
• How should I talk to my employer about these protections?
• What can I do if my employer still doesn’t provide these protections?
• What can I do if my employer retaliated against me for speaking up?
• What are my other options here?

The Bay Area is experiencing an intense heat wave this September with several cities registering all-time record temperatures. On September 6, San José reached 109 degrees, while Santa Rosa topped 115 degrees.

Although some residents are able to work in air-conditioned offices or homes to avoid the worst of the heat, many essential workers — including construction workers, farm laborers and delivery people — have to remain outdoors, exposed to the most intense heat.

In California, employers are legally required to provide all outdoor workers with four things to prevent heat-related illness: access to fresh water, shade, breaks and an emergency response plan.

But KQED has spoken to various outdoor workers who say that bringing up their rights with their employer isn’t so easy. For some, the risk of losing their job for speaking up against an unsafe workplace is always present while others are unsure whether they are eligible for these protections due to their contract or immigration status.

That’s despite rules established by the California Occupational Safety and Health Standards Board (Cal/OSHA) that are meant to protect all outdoor employees in California, regardless of their immigration or employment status. But still, that doesn’t make some workers feel any more comfortable talking to their bosses.

“That’s a real concern,” said David Hornung, Cal/OSHA’s heat and agriculture program coordinator: “workers not wanting to ask for their worker protections because of their concern of retaliation.”

If you’re working outside during a heat wave and your employer isn’t providing you with the required protections, there are a number of things you can do, even if you don’t feel comfortable bringing things up directly with your supervisor.

What are the Cal/OSHA protections?

In July 2006, a major heat wave in California resulted in at least 140 deaths over two weeks, the highest fatality rate on record from a single heat event, prompting state regulators to strengthen protections.

“The employer must provide drinking water that is fresh, cool and free so that each worker has a sufficient amount to drink,” said Angela Yahaira Breining, a staff attorney with the Workers’ Rights program at Centro Legal de la Raza in Oakland.

California defines a “sufficient” drinking supply as at least one quart of water per hour. And even if workers bring their own water bottles, employers must still have enough water available on site.

When temperatures rise above 80 degrees, employers must also provide an area with enough shade to accommodate every worker on-site. But, Breining adds, workers also have the right to request breaks in the shade — regardless of temperature — whenever they feel the need to.

And when temperatures rise over 95 degrees, “employers or supervisors must observe these employees regularly,” Breining said.

Having a supervisor on-site, she explains, is key to setting up a communication system that can swing into action if a worker starts to feel sick. “If someone is getting a headache, having them sit down, making sure that there is a safe way of communicating with higher-ups, and having an emergency plan in place,” she said.

Setting up an emergency plan is the next requirement for employers, says Hornung from Cal/OSHA. That includes “training for all the employees so they recognize the signs and symptoms of heat illness in themselves or in their co-workers.”

Whom do these heat protections apply to?

A misconception Hornung says he often hears is that Cal/OSHA rules only apply to certain industries.

“It applies to all outdoor workers, not just agriculture,” he said. “It applies to construction workers, gardeners, landscapers, maintenance people and anyone driving around in trucks that don’t have air-conditioning.”

Another common misconception, Hornung adds, is that the protections apply only to citizens or employees with valid immigration status.

“California law for workplace safety is great because it protects all workers regardless of immigration status,” he said. “So whether you are here with the right papers or not, you are still protected by our regulations.”

But for people who work informally, things are a bit trickier and often depend on the situation.

Hornung explains that Cal/OSHA first needs to verify that there is an “employee-employer relationship” — in other words, that the worker has provided labor in exchange for payment. This can include workers who lack a formal contract.

“If an employee is paid by an employer, then that establishes an employer-employee relationship,” said Hornung.

But the heat protections don’t apply to someone who is self-employed through an informal business, like fruit cart owners who sell their own produce.

If my boss is not following Cal/OSHA regulations, how should I bring it up?

Although it may be difficult for some workers to approach their supervisors, California labor laws prohibit employers from retaliating against workers who raise concerns about unsafe working conditions.

“It’s unlawful for an employer to retaliate against this — speaking about a workplace right they are entitled to,” said Breining, the workers’ rights attorney.

She recommends workers document in writing everything that’s going on, including keeping track of the dates and places that their bosses haven’t followed regulations. And she suggests workers also address their employers in writing, in the form of a text message, an email or a traditional letter.

“Specifically say what it is that you are requesting,” she said. “Are you requesting for the employer to provide training, to see what the heat illness prevention plan is or to request these cooldown breaks?”

Documenting every time an employer does not follow heat regulations can be useful later on if a worker decides to file a complaint with Cal/OSHA, Breining says.

Meanwhile, Hornung suggests that workers who fear immediate retaliation first discuss the issue with their peers to build additional support. “So rather than you as an individual asking your boss, try to get your co-workers to ask as a group,” he said.

However, the fact that retaliation is illegal doesn’t prevent an employer from retaliating against workers who speak up against an unsafe workplace, says Cynthia Rice, director of litigation, advocacy and training at California Rural Legal Assistance, a group that provides free legal aid to agricultural workers.

“We never say the employer can’t retaliate against you because of course the employer can retaliate against you,” she told KQED. If you believe your employer fired you or cut your hours or wages because you spoke up for a safe workplace, you can report this behavior to labor officials, who can start an investigation.

My boss didn’t listen to me. What do I do now?

If an employer is still unwilling to provide required heat protections, the next step may be to file a complaint with Cal/OSHA, a process that can be completed anonymously.

The agency has several Bay Area field offices workers can contact directly to file a report, based on where their work sites are located.

• San Francisco workers can call (415) 557-0100.
• San Mateo County workers can call the Foster City office at (650) 573-3812. This office also accommodates workers in some Santa Clara locations, including Palo Alto, Mountain View and Sunnyvale.
• Most workers in Santa Clara County can call the Fremont office at (510) 794-2521.
• Alameda County workers can call the Oakland office at (510) 622-2916.
• North Bay workers — in Sonoma, Napa, Solano, Marin and Contra Costa counties — can call the American Canyon office at (707) 649-3700.

There’s also a statewide heat help line, which offers assistance in both English and Spanish (and can connect workers to assistance in other languages): (833) 579-0927.

When filing a complaint, you’ll be asked questions about your employer or company, including the name, location and number of workers on site, how many hours you work in a day and what the safety issue is. This is when having a written record of past incidents or requests is especially useful.

While providing your name is optional, Hornung from Cal/OSHA says that if you provide your contact information, you can be notified when the report was received and if Cal/OSHA will look into the situation.

If Cal/OSHA takes up your case, the agency will assign an inspector to your work site who will speak to both employers and employees. Hornung says the inspection can take up to six months, although it often takes less.

“If there were any violations of the California code of regulations,” he said, “then the employer would be cited for those violations and those citations would have a monetary penalty.” The employer would also have to resolve whatever issue is putting workers at risk.

If your employer decides to retaliate against you during this time and either threatens you, cuts your hours or fires you, that’s grounds for a retaliation complaint with the state Labor Commissioner’s Office. You can file a retaliation complaint online; by calling (714) 558-4913; or through email.

“If [your employer] retaliates against you, you have a remedy,” said Breining. “They can reinstate you, there’s penalties for retaliation, there’s back wages you can get.”

If you are an agricultural worker, another option is filing an unfair labor practice charge against your employer with the state’s Agricultural Labor Relations Board (ALRB). The ALRB investigates potential unfair labor practices including retaliation by an employer against a worker who reports unsafe working conditions.

At least two workers must come together to file a charge with the ALRB. You can file a charge using this form and then send it, either though the mail or fax, to the closest ALRB office. In the Bay Area, the regional ALRB office is in Santa Rosa:

606 Healdsburg Avenue
Santa Rosa, CA 95401
Phone: (707) 527-3256
Fax: (707) 576-2360

What are my other options?

Last summer, workers at an Oakland fast food restaurant filed a workplace COVID-19 safety complaint with Cal/OSHA against their employer, alleging unsafe working conditions Agency officials responded nine months later saying no violations had been found — even as the employees who filed the original report claim that inspectors never reached out to them.

Understaffing has plagued Cal/OSHA for years, and that has only been exacerbated during the pandemic, limiting the agency’s ability to investigate claims.

That said, the agency has already issued hundreds of citations this year to employers who have not adhered to workplace regulations — so filing a claim can in some cases produce an outcome.

But there are additional steps you can take.

Breining, the workers’ rights attorney, points out that there are multiple legal aid offices around the Bay Area that can support employees throughout the complaint process and offer additional legal assistance, most of the time at no cost — including her office, Centro Legal de la Raza.

“We’re more than happy to help [workers] make the complaint or help make them make a demand letter if they don’t really want to go through this more formal process,” she said.

Breining adds that in many cases, workers reach out to her office after their employers have already retaliated against them or they have already suffered heat-related illness. While Centro Legal can still provide assistance, she encourages workers to seek aid before things go wrong.

“We prefer to help when it’s actually happening so that you don’t have to do some of the difficult legal processes after the fact,” she said.

Here are some organizations that offer free legal aid to workers in the Bay Area:

• Legal Aid at Work: (415) 864-8208
• Asian Americans Advancing Justice/Asian Law Caucus: (415) 896-1701
• Centro Legal de la Raza (Oakland): (510) 437-1554
• La Raza Centro Legal (San Francisco): (415) 575-3500
• Trabajadores Unidos Workers United: (415) 621-4155
• Street Level Health Project: (510) 533-9906
• California Rural Legal Assistance: (800) 337-0690

A version of this story was originally published on Sept. 8, 2021. This post includes reporting from KQED’s Farida Jhabvala Romero.