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Zachary
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3831
Experience:  Contracts, Wrongful termination and discrimination
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Can an employer in Florida fire a low level management employee

Customer Question

Can an employer in Florida fire a low level management employee for demanding the halt of the use of a piece of equipment that was throwing out an 18 inch arc of 240 volt electricity that nearly zapped the employee. The general manager who was absent that day said that they could not tolerate a loss in sales, and ordered that the equipment continued to be used. The employee stated that they would not allow his staff to operate the equipment until it had been diagnosed and fixed. An outside service repair company sent 2 repairmen that casually looked at the equipment and without doing any testing said they found nothing wrong with the equipment. They admitted that they were not electricians. After the employee stood up to both service repairmen and 2 managers and insisted that the equipment not be used until diagnosed properly and fixed, one of the managers noticed a problem that the repairman had missed. The repairman was getting ready to leave prior to this discovery, but when he investigated what the manager brought to his attention he found the real problem and put a tag on the machine that it should not be used or fixed but it should be replaced. The employee has not been fired yet but is anticipating that they might be fired when they return to work on their next scheduled workday. Is there any wise course of action that the employee can take prior to returning to work and possibly being fired for not obeying?
Submitted: 1 year ago.
Category: Employment Law
Expert:  Zachary replied 1 year ago.
Hi,

Thank you for your question.

The faulty state of the equipment actually is a violation of OHSA.

The OSH Act protects workers who complain to their employer,OSHA or other government agencies about unsafe or unhealthful working
conditions in the workplace or environmental
problems. You cannot be transferred,denied a raise,have your hours reduced,be fired,or punished in any other way because you used
any right given to you under the OSH Act. Help is available fromOSHA for whistleblowers.

If you have been punished or discriminated against for using your rights, you must file a complaint with OSHA within 30 days of the alleged reprisal for most complaints. No form is required, but you
must send a letter or call the OSHA Area Office nearest you to report the discrimination (within 30 days of the alleged discrimination).

You have a limited right under the OSH Act to refuse to do a job because conditions are hazardous. You may do so under the OSH Act only
when (1) you believe that you face death or serious injury (and the situation is so clearly hazardous that any reasonable person would believe the same thing);(2) you have tried, where possible, to get
your employer to correct the condition, and been unable to obtain a correction and there is no other way to do the job safely; and(3)the situation is so urgent that you do not have time to eliminate the
hazard through regulatory channels such as calling OSHA.

So, in short, if they fire you, you can file an OSHA claim. There is no way to keep them from firing you first other than by telling them "I've talked to a lawyer, and if you fire me, I will have a claim against you because I was engaged in protected activity by insisting that we stop working with a dangerous malfunctioning machine.

Please let me know if you have any further questions. Please also kindly consider rating my answer positively so that I am compensated by the website for my work on your question. Rating positively does not cause an additional charge and does not prevent us from further discussing your questions.

Best Regards,
ZDN
Zachary, Lawyer
Category: Employment Law
Satisfied Customers: 3831
Experience: Contracts, Wrongful termination and discrimination
Zachary and 2 other Employment Law Specialists are ready to help you
Customer: replied 1 year ago.

Since our last communication I have been told that "I am the problem" and "I need to explain myself" because I shut down the dangerous pizza oven that shot out an 18" wand of electricity hovering over the conveyer belt right where we place our hands to remove the pizzas. This 18" wand of electricity was the size of a man's forearm and hand and it kept waving back and forth over the conveyer belt and made a loud humming or buzzing sound like the sound of a transformer blowing. It did not stop until I turned off all of the circuit breakers.


 


My boss had a problem with me shutting down the oven and instructing my employees not to use the oven until it had been diagnosed and fixed.


 


The Company approved appliance repair guy came and did a sloppy job of looking at the oven and told me that he could not find a problem. He did not even check the oven with any voltage meters or take the oven apart to find out what was wrong. I told him that he needed to find the problem or get someone else to find and fix the problem.


 


The second appliance man was not much better than the first. He said he could not find anything wrong with the oven. He said that the electricity that came out of the oven would not kill me. After I kept insisting that the problem be found, he eventually found part of the problem and declared that the top half of the oven was still safe.


 


 


I have been ostracized by the Manager and all of the Assistant Managers since this incident. Non of them will look me in the eye anymore. The Assistant Managers act as if they have been told by the Manager that I am going to be fired soon. Apparently the Manager can cook up some other reason for firing me that is unrelated to the oven situation.


 


My employees and I have been forced to use the top portion of the oven since last Thursday without really knowing if the appliance guys know what they are talking about when it comes to the safety of the oven. Both appliance guys seemed to be incompetent and missed things that they should not have missed.


 


Yesterday a real electrician came in to prepare to install a replacement oven and found that both the old oven and the new oven are 30 Amp ovens, but the circuit breakers are 60 amp circuit breakers. This is the equivalent of having no circuit breakers at all and is unsafe. He said the ovens should not be used. The ovens are now turned off for the second time in a week, and have not been turned back on to my knowledge. (I am off today so I am not sure.)


 


The assistant Manager said that these breakers were installed 9 years ago, so apparently the oven has been unsafe for 9 years.


 


The first 2 appliance men did not find this problem at all. Nor did they find any other problems, until I put pressure on them to not stop searching till the problem was found. Is my company using unlicensed contractors maybe? Do the other company pizza locations have this same unsafe breaker situation?


 


Now that I have filled you in a little further I have a few questions.


 


I feel that my employees and I have had our lives placed in danger and have been violated and mistreated and threatened with losing our jobs if we didn't use this unsafe equipment. I think that my employer should be penalized for their reckless behavior but I also believe that I am due compensation for being exposed to a life threatening situation and being treated like a criminal for demanding that the equipment be safe to use first.


 


1. Now that the oven is turned off will OSHA even do anything?


 


2. Would OSHA handle both the penalty aspect and the compensation aspect of this, or would it be advisable to contact a local lawyer to handle the compensation part?


 


3. Does this sound like a case that a Lawyer would be interested in?


 


 


It appears that I will now have to find new employment because of the hostile work environment that now exists, and because I no longer want to be subjected to an unsafe work environment.


 


4.My question is: If my boss tries to fire me on trumped up charges that are unrelated to this incident, and I have not obtained new employment yet, is there any protection from OSHA, being that the trumped up charges are a cover for the real reason?


 


I have a perfect record for the entire time I have worked for the company, and have taken my department from very poor performance to being number 1 in the market. Any charges against me would have to be trumped up.


 


I have been unsure if reporting my employer to OSHA is something I feel comfortable doing. I feel that there could be unknown ramifications. The thing that bothers me though is if I don't do something about this, is some other person going to lose their life because I didn't report this.


 


I would appreciate your opinion on this.


 


 


 

Expert:  Zachary replied 1 year ago.
Thanks for your follow up.

I want to slow you down a bit. The law does not grant you compensation unless you have been injured. Nothing has actually happened to you in this case yet. Your exposure to a dangerous condition without actually being injured does not qualify you for any monetary compensation under the law.

In regard to the management's treatment of you, unless you are actually fired, or demoted, or have your hours cut, you do not qualify for any compensation and cannot make a claim. They have to actually take a negative action towards you to trigger your rights to make claim.

Now that the oven has been turned off and is being repaired, this would bring the employer into line with its duties under OSHA. Nevertheless, you can make a request that OSHA come and investigate the premises for other violations and to certify for you that you were looking at a dangerous condition with the oven. You need to go ahead and file a complaint with OSHA in order to bring about your anti-retaliation rights.

If they do fire you, even if it is for trumped up charges, you can make a claim for retaliation.

In regard to a hostile work environment, you need to really be careful, as these claims are very hard to prove. Them making you feel unappreciated or unwelcome does not rise to the level of a hostile work environment. It has to be truly deplorable actions on their part to qualify.

So, in summation, contact OSHA and make a complaint on the record and ask for an inspection. Ask that your complaint be listed as "anonymous" because you fear retaliation. Otherwise, keep working and follow orders so as not to be fired.

These sort of claims do not lead to huge pay offs, especially where no one has been injured, so it would be best for you to keep your head down and try not to get fired.

If you are fired, you do have a retaliation claim, but this does nothing for you while you are unemployed and may take months for you to get any sort of compensation.

I just want to tell you this so that you are fully informed about your rights and about the real world consequences of what's happening in your case.

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