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Employees can refuse to work due to safety fears, even at nonunion site

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in Employment Law,Firing,Human Resources

Three apartment maintenance workers refused to scrape and paint a water-damaged ceiling after they saw a TV report on airborne-asbestos health risks. When they voiced a concern, their supervisor said there was no asbestos.

Still worried, the three had a ceiling sample tested at a lab. The test showed the material did contain some asbestos. Armed with this information, the three again refused to do the job until a second test was done. The company shrugged off the workers' fears and, soon after, fired them for failing to do their jobs.

The workers sued, claiming unfair labor practices in violation of the National Labor Relations Act (NLRA).

An administrative law judge sided with the workers and the National Labor Relations Board agreed. Reason: The NLRA doesn't just protect union workers. It also protects workers who engage in a "concerted activity" to protest wages, hours or other working conditions. So these three workers were covered under the NLRA, and firing them for protesting safety concerns violated the law. (Odyssey Capital Group L.P. III, 337 NLRB No. 174, 2002)

Advice: Play it safe, and don't immediately fire workers who together protest pay or working conditions. As this case proves, the NLRA can apply to all workplaces, not just union settings, so it's wise to check the NLRA first.

Also take note: It doesn't matter whether you think the worker's safety concern has no basis. The board said that questioning the "objective reasonableness of employees' concerted activity is neither necessary nor proper in determining whether the activity is protected."

One point in your favor: While the NLRA protects employees who together refuse to work in protest, it doesn't protect employees whose conduct is unlawful, violent or in breach of contract.

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