Dirty Work

This is Part 2 of a series called Clash of the Protocols. Read Part 1 here. Read Part 3 here.

Today, workers in North America have a “right to refuse dangerous work” (Right to Refuse). 

If someone considers a work task to be dangerous, they can refuse to complete it. The task could be entering a tight space, using equipment, or dealing with chemicals. 

One codification, according to the U.S. Occupational Safety and Health Administration (OSHA):

Your Right to Refuse is protected if all the following conditions are met:

• Where possible, you have asked the employer to eliminate the danger, and the employer failed to do so; and

• You refused to work in "good faith." This means that you must genuinely believe that an imminent danger exists; and

• A reasonable person would agree that there is a real danger of death or serious injury; and

• There isn't enough time, due to the urgency of the hazard, to get it corrected through regular enforcement channels, such as requesting an OSHA inspection.

If workers and employers follow the Right to Refuse, workplaces could gradually become less dangerous. Fewer injuries and fatalities would occur to begin with. Over time, we would eliminate dangerous tasks or engineer them to be safer. We could improve safety by exercising precaution (using protocols like DUSK).  Not by using trial and error at the expense of life and limb. 

Now, whether all employees and employers in the U.S. are aware of this is a different question. Even if everyone was aware, the protocol wouldn’t have 100% compliance. 

It’s easy to imagine abuse on both the side of the employer and the employee. Employers could use their power to coerce employees into completing dangerous tasks. And by falsely citing dangerous conditions, employees could exploit their employers for payment without working. As always, there are two sides to the story. And who defines “dangerous”? Going down that rabbit hole is beyond the scope of this article. 

So, coming back to the right to refuse dangerous work. How did this protocol emerge? Was it an “organic” grassroots movement? Or was it dreamed up by the safety nerds at OSHA? This right has not always existed. Slaves and serfs did not have this right. With little agency comes few rights. 

Sam Kissinger suggests [1] that the Right to Refuse has been around since at least the 1940s: 

“Starting in the 1940s, collective bargaining became the most common way to protect the right to refuse unsafe work for employees in North America.”

That’s the earliest specific mention of the Right to Refuse that I’ve seen so far. Even then, it wasn’t a right. It seems that workers’ unions were the driving force behind this emerging protocol. Not regulators or governments. That said, governments did legalize collective bargaining and the formation of unions. That likely helped. But the protocol emerged from a real, desperate, and unmet need. Workers took things into their own hands. They demanded a right. They got it, and only later was there an attempt to formalize that right into law.

I say ‘attempt’ because it’s impossible to codify a protocol like this one. There are two things that make codification intractable. First, the balance of power between employees and employers. Second, the room for abuse by both parties. OSHA’s formulation of the Right to Refuse protocol relies, out of necessity, on a lot of vague terms. Such as, “Where possible…”, “... in “good faith”, “A reasonable person…”. Most of us understand the Right to Refuse well enough to practice it. At the same time, coming up with a perfect definition is impossible.

Take the third clause, for example:

“A reasonable person would agree that there is a real danger of death or serious injury.”

Would a reasonable person consider "desk work" to pose a real danger of death or serious injury? What about night shifts?

I don’t think a reasonable person would say either of these things constitute a real danger of serious injury, let alone death. But – as far as I understand the health impacts of being sedentary and nocturnal – both reduce human life expectancy. 

I have worked in some offices where this was common knowledge. There was a lot of encouragement to take stretching breaks, go for runs at lunch, and use the stairs. I have also worked in offices where this wasn’t the case. The definition of “real danger”, then, depends on one’s perspective – not what OSHA says. 

The vagueness of OSHA's definition might look dysfunctional, or even illegitimate. But its vagueness accommodates different perspectives, like the ones I mentioned above. Trying to include all perspectives in the definition would be counterproductive. There are too many contradictions, edge cases, and uncertainties. The definition would be too long. Too boring. No one would read it. And the formalized version of the protocol would thus no longer do its job. Death by over-specification.

So we’re left in an uncomfortable middle ground. Having no definition leaves too much room for employers to coerce employees into dangerous work. Having a perfect definition is a fool’s errand – it’s functionally equivalent to having no definition. The Right to Refuse is a protocol that creates safer workplaces and helps to smooth the clash between employees’ and employers’ Survive Protocols. The codification of the Right to Refuse happened only recently, in the mid-late 1900’s. The protocol continues to evolve as a result of i) new forms of work (i.e. knowledge work) and ii) a growing understanding of human health. 

In the next installment of Clash of the Protocols, I’ll dig deeper into:

• How workplace safety reporting protocols work (or don’t),

• Health and safety of knowledge workers vs. traditional workers,

• The concept of legitimacy as it applies to pedantic safety professionals, and

• What we can learn from Men Without Hats’ hit song, Safety Dance.

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P.S. I’m not sure if it’s a causal connection, but “Dirty Work” by Steely Dan might have something to do with worker rights coming under the spotlight:

[1] Rethinking the Right to Refuse Hazardous Work by Samuel Kissinger