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Void Where Prohibited
Revisited: The Trickle-Down Effect of OSHA's At-Will Bathroom-Break Regulation
by Marc Linder
Even before it appeared at the end of 1997,
Void Where Prohibited: Rest Breaks and the Right to Urinate on Company Time
had mobilized public opinion to pressure the Occupational Safety and Health
Administration to abandon its preposterous position that its industrial sanitation
standard, which requires employers to provide toilets, did not obligate them to let workers use those toilets. On April 6, 1998, OSHA finally issued a Memorandum declaring that the "standard requires employers to make
toilet facilities available so that employees can use them when they need to do so." Thus with a few keystrokes, OSHA had created a right for tens of mil-lions of workers to stop work when they need to void. Or had it? Was this establishment of at-will bathroom breaks worth the cyberspace it was posted in? How do labor-protective regulations get
enforced in a world of: powerful employers opposed to government
interference with their control of employees' time; workers, 90 percent of whom in the private-sector are
nonunion, afraid to assert their rights or file a complaint; and an understaffed OSHA that fails to pursue complaints
vigorously (or, in the unique case of California OSHA, refuses even to comply with its obligation to insure that its standard and interpretation are "'at least as effective' as the Federal standard")? Five years on,
Void Where Prohibited Revisited: The Trickle-Down
Effect of OSHA's At-Will Bathroom-Break Regulation answers these
questions by analyzing all the citations that OSHA has issued to employers for violating their obligation to let workers go to the bathroom and by
interviewing OSHA officials, labor union officers, workers, and employers. Since many who are free to go to the bathroom doubt stories about workers who have been forced to void on themselves or been disciplined for using the toilet without permission, OSHA reports documenting these practices are quoted in detail. Special attention is devoted to the dispute at the Jim Beam bourbon plant in Kentucky, which, thanks to the employer's appeal of a (non-monetary) citation for denying workers access to the
bathroom, sparked an illuminating hearing, whose high point was testimony by the
employer's urologist that even if workers wound up defecating on themselves, "it's a social problem, not a medical problem."
Marc Linder, a labor law professor at the University of Iowa who also worked at Texas Rural Legal Aid representing
farm-workers, has written widely on labor law, labor economics, labor relations, and labor history.
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Table of Contents
Preface: The Inaccessible Abode of Elimination Within the No Longer Hidden Abode of Production / vii
Acknowledgments / x
Note on Nomenclature and Sources / xii
I Pressure
1 Books Have Their Fates-And So Do Laws / 3
2 Void Where Prohibited and Its Impact on OSHA's Interpretive About-Face / 10
3 Iowa OSHA Anticipates Federal OSHA / 23
II An Historical-Exclusionary Interlude
4 How OSHA Almost Revoked Its Toilet Standard in 1978 / 31
5 Groups of Workers Not Even Covered by OSHA's Toilet Standard / 49
III Promulgation: Voiding on the Man's Time
6 OSHA Comes to Its Senses / 73
7 Is OSHA's Interpretation Valid as a Matter of Administrative Law? / 83
8 Reactions to OSHA's New Interpretation / 91
IV An International Comparative Interlude
9 Meanwhile Up in Civilized Canada: Pee for a Fee / 117
10 Oui Oui to Wee Wee:
The Freedom to Go to the Bathroom As a Fundamental Human Right in France /127
V Post-April 6, 1998 Enforcement
11 The Few, The Proud, The Citations / 139
12 Relatively Vigorous Complaint-Driven Enforcement:
UFCW-Organized Animal Slaughter Plants in Iowa / 186
13 Bourbon and Urine Don't Mix: Jim Beam in Kentucky / 197
14 Precocious But Meager Enforcement for Bus Drivers: Washington / 278
15 And Bringing Up the Rear: Cal/OSHA / 290
VI Human Waste and Capitalist Efficiency
16 A Golden Age for the Golden Stream? / 301
17 Is At-Will Voiding Now "The Law"? / 324
Appendix I ANSI and OSHA Workplace Toilet Standards from 1935 to the Present / 343
Appendix II OSHA's Interpretive Memorandum of April 6, 1998 / 354
Appendix III OSHA's Agricultural Sanitation Standard / 359
Appendix IV OSHA's Construction Sanitation Standard / 362
Appendix V Data Methodology and Sources: OSHA
Inspection Reports and Citations / 365
Index / 373
_______________________________________________________ Fanpìhuà Press ISBN 0-9719594-0-4 $8.00 -
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