By Allana; Photo by Rolando
Published April 2022
Too often workers are held in place by the fear of retaliation. The employer doesn’t have to do or say anything to get workers to keep quiet about wages or working conditions. That silence benefits the employer who already has disproportionate access to power. We undervalue the power of, and the need for, our voices to inform and improve our workplaces. We have the opportunity, and maybe the imperative, to make work fun, inclusive, and healthy for all of our coworkers. The first step should probably always be going to the employer/HR first and asking for change. If that doesn’t work, there might still be another way: reaching out to government agencies to enforce laws.
Many of the stories that I hear are of people struggling in the doorway between suffering and risking taking an issue to the next level. I adore when I am given the opportunity to be a resource at that time. I think it’s because I have many experiences where speaking up actually did make the workplace better. Maybe if we heard more true stories of successful change-making without retaliation then we might not have as much fear. This is a collection of stories about when I used the tools of government to make positive change.
Compensated for Hours Worked
I recently applied for an opportunity to be added to the house list in order to be offered stagehand work. Re-read that last sentence again just so we are all on the same page.
One of thirteen documents they asked me to sign included…
I have received and read a copy of the [company] Employee Handbook. I understand that the policies, rules and benefits described in it are subject to change at the sole discretion of [company].
On its face, fine. Then I realized that the handbook was 104 pages long! I sent an email to HR to inquire how they’d compensate me for the hours of onboarding required before my first day of work. She clarified that it was required and would be uncompensated time. In a couple days, I made another attempt (with citations) about why I thought this was inappropriate and included recommendations based on what similar employers do. She brushed me off. Refusing to continue forward under these terms, I called my state’s Department of Labor.
The Wage and Hour Division senior investigator and I had a wonderful chat. “104 page handbook feels egregious to me, don’t you think?” He agreed. He gave me the option of filing a complaint anonymously. Since I had clearly made my complaint known to HR, I saw no need to be anonymous. [Although it feels like a safe move, investigations where the complainant is anonymous have a very high rate of failing to make any actual change (not out of malice, just by the nature of having no first hand account). If you are able, stand behind your words and actions.]
The following is how the process at my DOL WHD went. I filled out a simple form with the agency which included one spot for a paragraph on the issue. The department said they would look into it “if they have capacity” (he said they are not too busy and pursue almost everything) and will close out the case within 30 days. Because of privacy requirements, they will not follow up with me unless they need more information. This also means that I won’t necessarily know the results.
Since it would have taken less time to skim the 104 pages (or lie) than to go through the back-and-forth of good faith change, why did I do this?
- I had emotional and time capacity.
- I had the knowledge to know it was wrong.
- I don’t need this employer. They are, in fact, the ones in considerable need of workers.
- I believe the risk of speaking up is quite low to myself and existing workers.
Although no law specifically says how much uncompensated time one is allowed for new hire paperwork, according to the DLI Investigator and HR experts, that amount should be measurable in minutes, not hours.
Consumer Transparency
There was a café in the theater that I worked at which had upped the price of their sandwiches by $1 each. Unfortunately, the price charged did not match the price advertised. I spoke to the manager, a friend, about the issue (which he was aware of) and we discussed possible solutions (a sticker being the easiest) but none of them were allowed by his boss. I let six months go by before I compared my receipt to the printed sign and again spoke to the manager. The conversation was the same, “my hands are tied.”
So I reported the issue to the office of the Attorney General. I got an amazingly thorough reply about the steps that their office had taken (contacting the café and reaching out to Consumer Services) and a further step I could take (file a complaint with the Better Business Bureau). In about 45 days the case was closed, the sign was fixed, and my manager-friend was mad at me. I get it; no one likes to have the government breathing down your neck but then don’t break the law for 6+ months (over, honest to God, a sticker). My friend got over it in a month or two which I assume means that his boss did too.
Why did I do it, other than the perfectly valid reasons it was illegal and many customers suffered? Because what I heard my friend say is: (1) I know it’s wrong, (2) I tried to fix it, and (3) I can’t because I’m afraid of my boss. And I thought, “I’m not afraid of your boss and I have rights (as a consumer) that you don’t. I can make this problem go away.”
Many months later, I was grumbling about the café to the theater’s executive director and I mentioned this story. She said, “I wish you would have told me before we renewed the contract.” She wanted to use evidence of the transgression as a bargaining chip. This is where the story becomes complicated for me. Was my goal to correct the injustice or punish the offender? Does the fact that they knowingly broke the law, which reflects poorly on the rest of the building, speak to the café’s quality of character or likeness to reoffend? My director seemed to think so and appreciated the tool (story) I had shared and the correction that I demanded.
I Don’t Feel Safe at Work
This may surprise people who know me but I’ve never felt the need (or, in some cases, had the opportunity) to file an OSHA complaint. I have definitely had friends who had the need and who reached out to me for a gut-check and moral support. One such friend got a customer service job while our industry was shut down. She called me to share the good news and how they were especially interested in all her safety training (OSHA 10) and how she could use it to improve the workplace. [hindsight: sad trombone]
She tried for months to make reasonable requests about preventative COVID-19 strategies (this was during mask mandates and pre-vaccines). They had no emergency escape plan, no robbery plan and, at best, offered sarcastic solutions when she raised these concerns. She cleaned out the first aid kit of medicine that expired in 1998 and started to update the safety file (mostly untouched since the 80’s). One day, the employer went on a screaming tirade, telling her that she was forbidden to go on the OSHA website. She was no longer treated equally as her coworkers and found the culture dangerous and reckless.
From OSHA.gov/workers:
Federal law entitles you to a safe workplace. Your employer must keep your workplace free of known health and safety hazards. You have the right to speak up about hazards without fear of retaliation. You also have the right to [...] request an OSHA inspection, and speak to the inspector.
After months of trying to make this work, she phoned a friend for help. Once I was up to speed, I recommended some continued attempts to communicate with the employer and, eventually, to reach out to OSHA for a consultation. I can attest that it was an enormous step for her to finally get there. “Am I being unreasonable? Have I really tried everything I could? I really want to keep this job.” Afterward she felt relieved to have a way forward and to have clarity about how this might impact her unemployment options. Because so much of her situation was anecdotal, the OSHA complaint was a primary document for proving her case to unemployment.
Because the form was so generic and English was a second-language, she found it difficult to perfectly answer all of the questions to submit a complaint. Wisely, she had kept a timeline and notes of relevant events. We talked through each answer together before submitting. The important part to remember and reinforce in communication with your employer, and with OSHA, is when you didn’t feel safe and when you tried to offer solutions.
In a week, she couldn’t get to work without a panic attack. Although the investigation wasn’t complete (or started?), it was time for my friend to call it quits. OSHA had forewarned her that if she quit, they could no longer pursue charges. A friend of hers who still works there and has confirmed that no safety progress has been made since she left a year ago. In my experience with helping people report to OSHA, I think they report too late in the process. It’s very hard to judge because you always want to make it work – to find a solution that doesn’t involve such a risk – but by the time you have exhausted all of your solutions, you are too exhausted to file the form and wait for the government to exhaust its options. I don’t know anyone who has gone through with reporting and been able to stay in the workplace long enough to see change. Ideally, I’d want justice to be served and human beings to be able to recover their mental health.
Fear is an assumption based on incomplete data. If you only hear stories of when things went wrong, you aren’t getting the full picture of what’s at risk or the likelihood of any particular results. If you find yourself in a situation where your “hands are tied,” look again. The government organizations showcased above are another tool you can use. They are there to educate about and enforce the law and to protect you from retaliation.
One of my favorite things is when friends come to me asking for workplace advice and I can affirm their concerns and give them an informed opinion on next steps. Sometimes my advice includes calling [the right] agency and getting their gut-reaction. A phone call is incredibly low risk because you can keep all things anonymous and just run the facts by someone who knows whether or not it’s worth pursuing.
If you find yourself in a situation where filing a complaint makes sense, I hope you have someone who will support you through this. Some phrases that may help:
- You are doing the right thing.
- You have already tried everything you could. They are being unreasonable.
- You deserve better.
- You deserve to be treated with respect; granted the rights you’ve been promised.
- You have the right to say “enough is enough.”
- This law is here to protect you.
- You are making it possible for future workers to not have to go through what you went through. They might not have the same resources or privileges that made it possible for you to get this far.
- It’s okay to choose personal health over justice; your health and safety matter.
Technicians for Change 