510 PUBLIC EMPLOYEE SAFETY AND HEALTH LAW (Sec. 101.055, Stats.)

[Ed. Note: Pursuant to sec. 101.055(8), Stats., it is unlawful for public employers to discriminate against employees because of their exercise of rights under the Public Employee Health and Safety Law. Enforcement of this law for state employees was previously the responsibility of the Personnel Commission, while enforcement of the law for public employees other than state employees was the responsibility of the Equal Rights Division. Since the elimination of the Personnel Commission in 2003, the Equal Rights Division has been responsible for enforcement of the law for all public employees. Decisions of the Equal Rights Division under this provision are subject to judicial review under ch. 227, Stats.].

The Complainant was not entitled to appeal the initial determination of no probable cause because neither the Public Employee Safety and Health Law, sec. 101.055, Stats., nor the rules of the Equal Rights Division give the Department of Workforce Development jurisdiction to hear an appeal from an initial determination of no probable cause in cases filed under that law. The Complainant’s only remedy was to petition for judicial review under ch. 227, Stats. Weiner v. DWD (Milwaukee Co. Cir. Ct., 05/12/06). [Ed. Note: Since this decision was issued, the Equal Rights Division has adopted rules specifically providing for appeals of initial determinations of no probable cause under the Public Employee Safety and Health Law. See, sec. DWD 223.08, Wis. Admin. Code.]

The complaint was properly dismissed for failure to state a claim upon which relief could be granted where the Complainant filed two reports relating to an injury he suffered when he broke up an inmate fight at the correctional institution where he was employed. The Complainant was not complaining of either an unsafe or unhealthy condition, a condition that was correctable, or an injury that was preventable. These reports fall outside of the protections set forth in sec. 101.055(5), Stats. which provides that a public employee “who believes that a safety or health standard or variance is being violated, or that a situation exists which poses a recognized hazard likely to cause death or serious physical harm” may request an inspection. The Complainant, therefore, did not exercise a right related to occupational safety and health under sec. 105.055, Stats. Process v. DOC (Wis. Pers. Comm'n, 03/08/01).

The Public Employee Safety and Health Law protects public employees from retaliation for participation in protected disclosure of health or safety hazards. The method of analysis applied to this law is similar to that employed for retaliation claims under the Wisconsin Fair Employment Act. The Complainant in this case failed to establish a prima facie case of public employee safety and health retaliation where he failed to present any evidence of having participated in a protected disclosure of health or safety hazards. Hawkinson v. DOC (Wis. Pers. Comm'n, 10/09/98).

Workplace violence is regulated under the general duty clause of the Federal Occupational Safety and Health Act. Because the comparable state law (sec. 101.55, Stats.) was intended to give state employees “rights and protections. . . equivalent to those granted to employees in the private sector” under federal law, the Respondent’s motion to dismiss the Complainant’s Public Employee Safety and Health claim relating to workplace violence was denied. Cygan v. DOC (Wis. Pers. Comm'n, 09/10/97).

The Complainant’s occupational safety and health retaliation claim was not defeated by his failure to report unsafe conditions to the Department of Commerce. The Complainant had filed an incident report regarding unsafe working conditions with management and his union. Leinweber v. DOC (Wis. Pers. Comm'n, 08/14/97).

Workplace violence is regulated under the general duty clause of the federal Occupational Safety and Health Act. Wisconsin’s public employees’ safety and health provisions were intended to give covered state employees the same protections as employees in the private sector. The Complainant’s incident report to management and his union relating to threatening telephone calls in the absence of any staff member other than the Complainant (a social worker) on a floor at a hall in the Drug Abuse Correctional Center, related to dangers protected under state law. Leinweber v. DOC (Wis. Pers. Comm'n, 08/14/97).

Filing Abnormally Hazardous Task Reports and making other disclosures to the Department of Industry, Labor and Human Relations were protected public employee health and safety activities. McKibbins v. UW-Milwaukee (Wis. Pers. Comm'n, 04/04/95). Comments and ratings on a performance evaluation are reviewable under the public employee health and safety provisions. McKibbins v. UW-Milwaukee (Wis. Pers. Comm'n, 04/04/95).

No retaliation was shown in regard to the Complainant’s performance evaluation where the Complainant had reported safety and health problems over a considerable period of years and had not suffered any adverse employment consequences but had been complimented and rewarded for her efforts. The Complainant (a building maintenance helper) had more recently failed to notify her supervisors of health and safety violations in her building, had failed to communicate effectively with her supervisors on various occasions, had failed to carry out a work assignment and had failed to wear proper safety equipment. McKibbins v. UW-Milwaukee (Wis. Pers. Comm'n, 04/04/95).

The Complainant failed to establish a prima facie case of retaliation where the person who decided not to rescind the Complainant’s resignation was not aware of the Complainant’s protected activity. Radtke v. UW-Madison (Wis. Pers. Comm'n, 11/22/94).

Claims meeting the standard of “discipline” under the Whistleblower Law (secs. 230.80 et seq., Stats.) constitute adverse actions under the Public Employee Safety and Health Law. Sadlier v. Wisconsin DHSS (Wis. Pers. Comm'n, 03/30/89).

Nothing in the statutes suggests that a grievance directed to management and relating to a health or safety concern cannot constitute the exercise of a right under the law entitling the grievant to protection from retaliation. Comments to the media were also protected conduct. However, a grievance referring only to a single instance of prior conduct by management with no indication that the conduct represented a policy did not relate to an ongoing safety concern. Sadlier v. DHSS (Wis. Pers. Comm'n, 03/30/89).

The Public Employee Safety and Health law, sec. 101.055, Stats., is intended to provide employees rights and protections equivalent to employees in the private sector under OSHA. Strupp v. UW-Whitewater (Wis. Pers. Comm'n, 07/24/86).

The Complainant had a reasonable and good faith belief that the delivery of a drum of sulfuric acid by hand involved a danger of serious injury or death. He presented an expert witness who testified that moving the drum downstairs by hand would not be safe. Although the delivery could have been effected safely with the use of a dolly, this factor alone did not lead to a conclusion that the Complainant’s refusal was unreasonable. Strupp v. UW-Whitewater (Wis. Pers. Comm'n, 07/24/86); aff’d sub nom. Strupp v. Wis. Pers. Comm'n (Milwaukee Co. Cir. Ct., 01/28/87).

The Complainant reasonably refused to assist in the delivery of a drum of sulfuric acid because of a reasonable and good faith belief that the task involved a danger of serious injury or death. The Complainant also engaged in protected activity when he sent DILHR a copy of a memo to his supervisor specifically questioning the safety of moving the acid. The Complainant’s subsequent termination was based in part on these activities. However, in order to establish a violation of the law, it must be found that the protected activity was a “substantial reason” for the discharge, or that the discharge would not have taken place “but for” the protected activity. In this case, the Respondent had independent reasons for discharging the Complainant. The Complainant’s attitude towards management throughout the course of his four months of employment was contentious and in some respects contumacious (including one statement that a supervisor’s memo would “make good toilet paper”). The Complainant’s discharge did not violate the Public Employee Safety and Health Law. Strupp v. UW-Whitewater (Wis. Pers. Comm'n, 07/24/86); aff’d sub nom. Strupp v. Wis. Pers. Comm'n (Milwaukee Co. Cir. Ct., 01/28/87).

Under the Public Employee Safety and Health law, sec. 101.055, Stats., the Complainant's reasonable refusal to perform a task which the Complainant has a reasonable and good faith belief may involve danger of serious injury or death is protected, and it is not required that the Complainant prove that the belief was in fact accurate. Strupp v. UW-Whitewater (Wis. Pers. Comm'n, 07/24/86).

A violation of the Public Employee Safety and Health Law was found where the Complainant, a union representative on a joint safety committee, was disciplined for handing out his business card in a work area without authorization. The business card indicated Complainant's title of "Chief Safety Coordinator" for the union. Marchewka v. Milwaukee County (Milwaukee Co. Cir. Ct., 11/25/85).

Under the Public Employee Safety and Health law, sec. 101.055, Stats., the specific language "within 30 days after the employee received a knowledge of the discrimination or discharge" means that, with respect to discharges, it is the date of the discharge, rather than the date on which the employee obtained or should have obtained knowledge that the discharge was discriminatory, that triggers the running of the 30-day statute of limitations. Sprenger v. UW Sys. (Wis. Pers. Comm'n, 09/13/85).

The Labor and Industry Review Commission does not have jurisdiction to review Equal Rights Division decisions issued under sec. 101.055, Stats., regarding public employee occupational safety and health. Marchewka v. Milwaukee County (LIRC, letter ruling, 04/16/85).

The Complainant was found not to have engaged in a protected activity where the only evidence of safety-related activity was that the Complainant discussed health and safety matters with a coworker, and where the Complainant failed to establish that the Respondent believed that he had “filed” an oral safety complaint. Even if the Complainant had shown that he had engaged in a protected activity, he failed to establish a causal connection with his subsequent discharge. Branski v. UW-Milwaukee (Wis. Pers. Comm'n, 02/29/84)