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Can I sue my employer for not fixing the air conditioning in our restaurant?

Sacramento, CA |

It has been over 100 degrees in California for the past couple of weeks. I'm not sure how long it has been since our ac has worked but, when it got hot it didn't. On June 30th the temperature was to over 120 degrees in our kitchen and I worked 4 hours straight in it. As a result I ended up going into heat stroke. I did not go to the hospital but I had all the symptoms. I had dilated pupils, my body wouldn't stop sweating, I had to hold on to things to keep from falling over, I couldn't focus, etc. I felt awful and just wanted to go home, so I did. I worked again on Monday in the heat. Now, a week later, I still can't focus for more than 30 seconds before I start doing something else and I keep making stupid mistakes that I wouldn't have before. People have noticed. What are my options?

Attorney Answers 4

Posted

In California employers have a duty to control the risk of “heat illness”, which is a serious medical condition resulting from the body’s inability to cope with a particular heat load, including heat stroke, cramps, exhaustion and syncope. [8 Cal.C.Regs. § 3395(b)] in outdoor places of employment. [8 Cal.C.Regs. § 3395(a)]. However, your question might suggest that you are not working in outdoor kitchen. Nevertheless, if you are getting sick because of the heat, you are covered under workers' Compensation. You might also want to provide notice to your employer about your working condition and ask for improving the temperature in your working place. Alternatively, you could contact California Occupational Safety and Health (Cal–OSH) and request for a site inspection. If the inspection found any health and safety violation, and the employer fails to cure them, you may bring a civil action against them.

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Posted

I'm sorry to hear about this and I hope you are able to recover completely.

The Occupational Safety and Health Administration (OSHA) regulates workplace safety, including the temperatures under which employees work. Here are some links that should help you:

OSHA's discussion of heat in the workplace: http://www.osha.gov/SLTC/heatstress/

OSHA's handbook on workers' rights: http://www.osha.gov/Publications/osha3021.pdf

Contact information for reporting an unsafe workplace or for filing a complaint: http://www.osha.gov/html/Feed_Back.html

If you pursue your rights – and what happened to you indicates that you should – be prepared for employer retaliation. Taking action could result in the loss of your job due to employer retaliation. While it is illegal to retaliate against an employee who makes a good faith complaint about illegal circumstances, all the law does is provide a remedy after the fact; the law cannot prevent your employer from taking retaliatory action in the first place. You may find yourself out of a job in this terrible economy and unable to find a replacement. No law suit, no matter how successful, can ever give you back the lost time and lost peace of mind that are taken from you during any litigation.

That said, if you lose your health, you lose the ability to work and the ability to enjoy life. It's a tough call, but it seems your situation favors reporting the working conditions. Know that your report to OSHA is anonymous.

Do what you can to protect yourself. Keep a log of any comments, adverse actions or other funny business. Write down the date, time, what was said or done, who said or did it, and any witnesses. Start with the first day the temperature was too high. Be sure to include any complaints you made to HR, your boss or anyone. Include details of your injury. And if you are subjected to adverse treatment, be sure to include info starting with the first adverse action that took place. Keep your log at home, not at work, because you never know what will disappear.

If you report your employer to OSHA, you will be a whistleblower. Whistleblowers are employees who refuse to violate the law, and/or report wrongdoing that harms the public or has the potential to harm the public, and/or report employers who violate lawthe laws. The wrongdoer can be a private employer, a private entity, a federal, state or local government, or another employee. Usually, but not always, the wrongdoing benefits the person or entity that engages in the wrongdoing. Harm to the public may be caused by inflated prices, dangerous products, environmental harm, and more.

Whistleblowers are protected by law. The purpose of whistleblower protection laws is to allow employees to report, stop or testify about this kind of wrongdoing, as a benefit to the public. Note that complaints about wrongdoing that only harm the employer itself are not protected by whistleblowing laws. Many whistleblower laws have a very short time period in which to file a claim. Please see my Avvo guide to whistleblowers for more information about whistleblowing: http://www.avvo.com/legal-guides/ugc/whistleblowers-and-their-rights?published=true.

Also, you should file a claim for your on-the-job injury. You can find a workers' compensation attorney on the California Applicant Attorneys Association (CAAA) web site: http://caaa.org/cs/. CAAA is the strongest California bar association for attorneys who represent injured workers. On the home page, click on the picture of the wheelchair above the words "Injured Workers." On the next page, click on the link to “Attorney Search” on the left side. Enter your city or any other information and click “Search.”

I hope you can resolve your situation and wish you the best.

twitter.com/MikaSpencer *** All legal actions have time limits, called statutes of limitation. If you miss the deadline for filing your claim, you will lose the opportunity to pursue your case. Please consult with an experienced employment attorney as soon as possible to better preserve your rights. *** Marilynn Mika Spencer provides information on Avvo as a service to the public, primarily when general information may be of assistance. Avvo is not an appropriate forum for an in-depth response or a detailed analysis. These comments are for information only and should not be considered legal advice. Legal advice must pertain to specific, detailed facts. No attorney-client relationship is created based on this information exchange. *** Marilynn Mika Spencer is licensed to practice law before all state and federal courts in California, and can appear before administrative agencies throughout the country. She is eligible to represent clients in other states on a pro hac vice basis. ***

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Posted

The owner knows and is taking no action. Since I was sick for 4 days, and still not that much better, my manager told everyone that I wes pregnant

Posted

Your question asks if you can sue. The answer is no. However, you do have options that have been explained to you.

One option is an anonymous report to OSHA regarding the hazardous workplace. This might cause OSHA to come in and force the employer to change the workplace to make it non-hazardous.

Another option is to file a workers compensation claim. Your post suggests you have continuing issues associated with your heat stroke. The workers compensation system is the exclusive remedy for employees who are injured in any way in the workplace (except for a few exceptions not applicable here). It is the workers compensation law that makes it impossible for you to sue your employer for your injuries. Instead, you file a workers compensation claim and you get medical assessment and treatment, temporary disability benefits if you need to miss work, and a financial settlement if the workplace injury creates any permanent disabilities.

If you intend to go the workers compensation route, it is really important that you find a good workers compensation attorney to stand alongside you through the process.

You should immediately locate a workers compensation attorney to assist you to consult with and get your filing started. You can look here on this site in the Find a Lawyer section, or you can take a look at the membership list of the California Applicants Attorney Association on its website at https://www.caaa.org/

Good luck to you.

This answer should not be construed to create any attorney-client relationship. Such a relationship can be formed only through the mutual execution of an attorney-client agreement. The answer given is based on the extremely limited facts provided and the proper course of action might change significantly with the introduction of other facts. All who read this answer should not rely on the answer to govern their conduct. Please seek the advice of competent counsel after disclosing all facts to that attorney. This answer is intended for California residents only. The answering party is only licensed to practice in the State of California.

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Posted

I would suggest that you contact the local EDD (employment Development Department) or OSHA (Occupational Safety and Health Administration) first to see if you can get help.

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