But it hasn't always been. Believe it or not, until 1998, OSHA claimed that its regulation requiring employers to provide toilets didn't mean that employers actually had to let workers use those toilets.

OSHA also prohibited employers from imposing "unreasonable restrictions on employee use of the facilities" that would cause "extended delays."

Which industries are the main culprits? Various kinds of assembly-line factories, but especially food processing and automobile plants. Call centers have also become notorious for deny-ing workers access to the toilet, while bus drivers all over the world are subject to the problem. And surprisingly, such white-collar professionals as elementary school teachers and pharmacists in supermarkets like Wal-Mart have faced some of the harshest restrictions.

So now that the government finally agrees that when you gotta go you gotta go, how can workers make use of this right? Some union contracts assign relief workers to enable assembly line workers to leave the line between formal breaks. Only a few collective bargaining agreements actually say how many minutes management is permitted to make you wait, though some plants have informal understandings.

Surprisingly, even some strong unions such as the UAW have conceded employers as much as 40 minutes to get a relief worker. That's way too long. Even though OSHA has not specified how long an "unreasonably long time" is, it's clear that 40 minutes just won't cut it. Whether the line is drawn at one second or 15 minutes depends on various factors.

Take the Jim Beam bourbon plant in Clermont, Kentucky. In 2001, Beam unilaterally issued a rule that any worker without a doctor's note who went to the bathroom more than four times a day, six times in a year would be fired. UFCW Local Ill-D filed a complaint with OSHA, which cited the company.

Even though there was no fine, Jim Beam appealed, but the UFCW succeeded in interesting media all over the world. And when Jay Leno joked about how the color of bourbon was similar to urine, Jim Beam immediately dropped its appeal.

USING OSHA

Even if you're a union member, if your union fails to deal with the problem--and remember that OSHA takes precedence over any contract--you can file a complaint with OSHA.

If you file a signed written complaint (on request your name will still be withheld from the employer), OSHA is supposed to conduct an on-site inspection within five working days. If you make a telephone complaint, OSHA will contact the employer by phone or fax within one day and give the employer; five days to respond. If the employer's response is inadequate and you give OSHA a rebuttal, within five working days OSHA is supposed to conduct an on-site inspection.

What can and will OSHA do? It depends on how serious or widespread the violation is and also on how vigilant the individual OSHA inspector and the area director are.

If OSHA finds that the employer unreasonably restricted your access to the toilet, it can issue a citation and impose a monetary fine. So far the biggest penalty OSHA has handed out for restricting toilet access is $36,000 plus a compulsory $25,000 contribution to local government. The unionized Cargill-Excel hog slaughter plant in Otturnwa, Iowa had to pay those amounts after OSHA found that two women had defecated in their pants because their supervisor had made one wait an hour and 35 minutes and the other 35 minutes for relief.

And Excel's problems aren't over. One of the workers filed a tort suit against the company based on the claim right to defecate or urinate in a reasonably private and dignified way."

On the other hand, sometimes, even when it finds a violation, OSHA doesn't deem it serious and doesn't fine the employer. Though little deterrence can be expected from such a slap on the wrist, since repeat violations can result in significant fines, OSHA has sometimes been able to jawbone employers into reaching agreements with the union on bathroom-break arrangements that have even specified how many minutes before the company has to provide relief.

Finally, in a very important sense there was no need for OSHA to tell workers that they have a right to prevent employers from doing them harm by making them wait too long to eliminate waste, which may cause urinary tract infection (among other things.)

Among the various innovative self-defense tactics union workers have used against overreaching employers is pee-to-rule. When management prohibited going to the bathroom outside of scheduled breaks, the whole plant agreed to descend on the bathrooms during a 10-15 minute break so that the long lines far exceeded the toilets' capacity. By the time the break was over, scores of workers were still waiting their turn and refused to go back to work until they had their chance. Management quickly got to the point and rescinded the restrictions.

Reprinted from The Local Line, Carol Stream, IL

Also available from Labor Notes July 2003 issue