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

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What protections exist in California for those who work outside during a heat wave? For which workers do these protections apply for? How should I talk to my employer about these protections? What can I do if my employer still doesn’t provide these protections? What are my other options?

It’s past 4 p.m. and the late summer heat hasn’t let down in Oakland.

Ignacio, 75, pushes his ice cream cart down International Boulevard in Oakland’s Fruitvale neighborhood. The temperature is still above 85 degrees Fahrenheit, and he’s been out all day under the sun selling popsicles and ice cream sandwiches.

“If it rains, I try to get over it. If it’s hot, I try to get over it,” said Ignacio, who has sold ice cream for 25 years, and only wanted his first name used because of his immigration status.

“When it’s really hot, many people ask me, ‘Why do you wear jackets?’ ” he said, pulling up his sleeve to show the contrast in skin tone between his dark hands and much lighter arms.

“This is what burns,” he said, pointing to his left hand. “This is what doesn’t burn,” he adds, motioning to his arm.

Ignacio keeps a cold water bottle in his cart, but carries little other protection against the 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 Ignacio says his employer, who supplies the cart, does not provide him with these protections. Bringing this up isn’t so easy either, Ignacio points out. He works informally — he doesn’t have a contract and is not on any official payroll— and has previously avoided these types of conversations with his boss.

“Our boss just tells us where to go,” he said.

Rules established by the California Occupational Safety and Health Standards Board (Cal/OSHA) are meant to protect all outdoor employees in California, regardless of their immigration or employment status. But that doesn’t make Ignacio feel any more comfortable talking to his boss.

“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 it 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 onsite. 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 coworkers.”

A vendor sitting in the back of a tarp-covered truck in San Francisco’s Mission District shells beans on Aug. 6, 2021. (Beth LaBerge/KQED)

Who Do These 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 explained. “So whether you are here with the right papers or not, you are still protected by our regulations.”

But for workers like Ignacio, who work informally, things are a bit trickier, and often depend on the specific 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 cool-down 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 coworkers to ask as a group,” he said.

Workers, he says, might also first consider raising concerns with their supervisors before approaching their bosses directly.

A vendor sells cut fruit underneath an umbrella in San Francisco’s Mission District on Aug. 6, 2021. (Beth LaBerge/KQED)

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: (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: (510) 794-252 Alameda County workers can call the Oakland office: (510) 622-2916 North Bay workers — in Sonoma, Napa, Solano, Marin and Contra Costa counties — can call the American Canyon office: (707) 649-3700

There’s also a statewide heat helpline, which offers assistance in both English and Spanish (and can also connect workers to assistance in in other languages): (877)992-2567.

When filing a complaint, you’ll be asked questions about your employer or company, including the name, location and the 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 worksite who will speak to both employers and employees. Hornung says the inspection can take up to six months, although it often takes less.

A vendor takes shelter from the sun while he removes beans from their pod in San Francisco on August 6, 2021. David Hornung from Cal/OSHA points out that state heat protections apply to every person who works outdoors — not just agricultural workers. (Beth LaBerge/KQED)

“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.”

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 yearto employers who have not adhered to workplace regulations — so filing a claim can in some cases produce an outcome.

But there are also 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

This post includes reporting from KQED’s Farida Jhabvala Romero.

Copyright 2021 KQED