(a) To establish a violation of
AS
18.60.089, the employee's engagement in a
protected activity need not be the only consideration for discharge or other
discrimination.
AS
18.60.089 is violated if
(1) engaging in a protected activity is a
substantial reason for the action; and
(2) the discharge or other discrimination
would not have taken place if the employee had not engaged in a protected
activity.
(b) The
following activities are protected:
(1) An
employee may file a discrimination complaint that is related to conditions at
the work place, as distinguished from a complaint related only to general
public safety and health. The employee may file a complaint with the
department, a federal, state or local government agency, or the employer. The
employee is not required to make the complaint directly. It is sufficient if
the employee sets into motion, or participates with others in, an action that
results in a complaint being made.
(2) An employee may institute or cause to be
instituted any proceedings related to the enforcement of occupational safety
and health standards. These proceedings include contesting an abatement date
under AS
18.60.093(e), petitioning
for adoption of an occupational safety and health standard, requesting
modification or revocation of a variance, or judicially challenging a standard.
The employee is not required to institute the proceeding directly. It is
sufficient if the employee sets into motion, or participates with others in,
activities which result in proceedings related to
AS
18.60.010-18.60.105.
(3) An employee may testify or intend to
testify in proceedings under
AS
18.60.010-18.60.105. This protection is not
limited to testimony in proceedings instituted or caused to be instituted by
employees, but extends also to any statements given in the course of judicial,
quasi-judicial, or administrative proceedings including inspections,
investigations, and administrative regulations adoption or adjudicative
functions.
(4) An employee may
exercise any other right afforded by
AS
18.60.010-18.60.105. These rights include
participating in an enforcement inspection, requesting a copy of the log and
summary of occupational injuries and illnesses, and requesting access to an
employee's own medical records.
(c) An employee's engagement in a protected
activity described in (b) of this section does not protect the employee from
discharge or discipline for legitimate reasons unrelated to the protected
activity.
(d) An employee who walks
off the job because of an unsafe condition at the worksite is engaged in
protected activity if the employee is confronted with the choice of not
performing an assigned task or being subjected to a risk of serious injury or
death arising from the unsafe condition. The condition causing the employee's
apprehension of death or injury must be of such a nature that a reasonable
person would conclude that there is a real danger of serious injury and that
there is insufficient time, due to the urgency of the situation, to eliminate
the danger through the employer or regular governmental enforcement channels.
An employee, if feasible, must also have first sought from the employer, and
have been unable to obtain, a correction of the unsafe condition.
