Category Archives: Labor Laws/Legislation

Occupational Safety and Health Administration (OSHA) and Worker Safety During the COVID-19 Pandemic

Source: David Michaels, Gregory R. Wagner, JAMA, September 16, 2020

With the coronavirus disease 2019 (COVID-19) pandemic, the US is facing an unprecedented, massive worker safety crisis. Thousands of workers are at risk for workplace exposure to severe acute respiratory syndrome coronavirus 2 (SARS-CoV-2) infection as they provide care for patients with COVID-19 or perform other “essential” services and daily functions and interact with other workers or the public. By law, employers in the US are required to provide workplaces free of recognized serious hazards. Enforcement of this law is the responsibility of the Occupational Safety and Health Administration (OSHA). While OSHA could be making an important contribution to reversing the spread of the SARS-CoV-2 virus and mitigate risk to workers, their families, and communities, the federal government has not fully utilized OSHA’s public safety authority in its efforts to reduce the risk of COVID-19.

Estimates based on data from the Centers for Disease Control and Prevention indicate that more than 150 000 hospital and nursing home staff have been infected by the SARS-CoV-2 virus at work, and more than 700 have died, although the actual numbers are unknown because of inadequate data collection systems. As the epidemic has spread, many other workers, including emergency responders, corrections officers, transit workers, and workers in meat and poultry factories, farms, grocery stores, and warehouses, also have been infected with SARS-CoV-2…..

When Do Unions Matter to Social Policy? Organized Labor and Leave Legislation in US States

Source: Cassandra Engeman, Social Forces, Advance Articles, Published: July 29, 2020
(subscription required)

From the abstract:
Trade union institutions are historically and comparatively weak in the United States, and union membership has been in steady decline over several decades. Scholars thus question the contemporary relevance of organized labor to social policy. Yet, there is considerable state-level variation in social policy and union institutional strength that remains underexamined. Focusing on variability across US states, this paper uses mixed-methods analysis to examine relationships between organized labor and parental and family leave legislation under varying political conditions. Event history analysis of state-level leave policy adoption from 1983 to 2016 shows that union institutional strength, particularly in the public sector, is positively associated with the timing of leave policy adoption. These findings are robust to the inclusion of other factors, including Democratic control of state houses, which is also shown to facilitate leave policy adoption. Comparative case studies support event history findings and illustrate how state house partisanship informs the level of government that leave advocates target for policy change. The paper concludes by suggesting further attention to subnational policies and investigation into the social movement practice of target-shifting and its effects. Ultimately, the paper demonstrates the operation of power resources at the subnational level within a liberal market national context.

Labor, Poverty, and Power

Source: Cambridge Now Blog, September 3, 2020

Countries around the world are struggling with the economic repercussions of the pandemic, and the United States in particular has recorded levels of unemployment not seen since the Great Depression. While the CARES Act, passed by Congress and signed by President Trump in March, provided $600/week in supplemental income to some workers, this benefit lapsed at the end of July and no replacement program has been enacted, leaving millions in a state of housing and food insecurity. At the same time, states have made cuts or are considering steep cuts to Medicaid and other social safety programs precisely as need surges, with millions of Americans losing health insurance along with their jobs. A disproportionate number of those who are at risk are Black Americans and people of color who worked—or still work, in some cases, but at minimum wage—in industries without organized labor, which has also been in decline over the past several decades in the United States. Indeed, the precarious position of low-wage workers and the unemployed stands in contrast to legislation designed to protect businesses and employers—for example, a $25 billion bailout to the airline industry, or the GOP Liability Shield Bill, which would give employers sweeping immunity against Covid-19 related lawsuits brought by employees.

We spoke to several Cambridge University Press authors and editors about the legal, political, and historical factors that explain these converging crises and make low-income and unemployed Americans especially vulnerable. We also asked about connections between calls to end anti-Black racism and to reinvigorate organized labor, and, more generally, how anti-labor and anti-poor measures have exacerbated the systemic effects of racism.

A Look At Terminations For Protest-Related Activities

Source: Laura Scott, Employment Alert, Volume 37, Issue 19, September 16, 2020
(subscription required)

…Private employers may be wondering whether and when an employee may be fired for engaging in protest-related conduct. The First Amendment protects an individual’s freedom of speech, right to assemble, and therefore the right to peacefully protest. But, it does not guarantee an employee a job.

If an employee is “at will,” an employer can technically end the employment relationship at any time for any reason. But, it’s rarely a good idea to terminate someone “just because.”

Also, depending on the applicable state law, a private employer may be barred from taking adverse employment action against an employee for conduct engaged in at a protest while off duty…..

Corporate Culprits Receiving Covid Aid

Source: Philip Mattera and Mellissa Chang, Good Jobs First, September 2020

This new report combining data from Covid Stimulus Watch and Violation Tracker shows how many CARES Act recipients have a history of corporate misconduct.

More than 43,000 businesses and non-profit organizations that received CARES Act funds have a history of misconduct, collectively paying $13 billion to settle civil and criminal penalties over the last decade.

Together, the same companies received $57 billion in grants and $91 billion in loans through the federal economic stimulus bill passed by Congress to mitigate the economic fallout from the COVID-19 pandemic.

Among the violations are workplace safety issues, leading in one case to the death of a worker, flouting of environmental standards, wage theft and defrauding the federal government. They raise the question whether greater scrutiny should be given to how recipients are using taxpayer dollars.

New Labor Viscerality? Work Stoppages in the ‘New Work,’ Non-Union Economy

Source: Michael Duff, St. Louis University Law Journal, Forthcoming, Date Written: June 28, 2020

From the abstract:
The COVID-19 work stoppages involving employees refusing to work because they are fearful of contracting coronavirus provides a dramatic opportunity for newer workplace law observers to grasp a well-established legal rule: both unionized and non-union employees possess rights to engage in work stoppages under the National Labor Relations Act. This article explains that employees engaging in concerted work stoppages, in good faith reaction to health and safety dangers, are prima facie protected from discharge. The article carefully distinguishes between Section 7 and Section 502 work stoppages. Crucially, and contrary to Section 502 work stoppages, the health and safety-related work stoppages of non-union employees, protected by Section 7, are not subject to an “objective reasonableness” test.

Having analyzed the general legal protection of non-union work stoppages, and noting that work stoppages have been on the increase during the last two years, the article considers when legal protection may be withdrawn from such concerted activities because employees repeatedly and unpredictably engage in them—so called “unprotected intermittent strikes.” Discussing a recent NLRB decision, the article argues for an explicit and strengthened presumption of work stoppage protection for employees who are wholly unaffiliated with a union, even when those employees engage in repeated work stoppages in response to discrete workplace disputes or dangers.

Next, the article grapples with looming work stoppage issues emerging from expansion of the Gig economy. When workers are not “employees,” peaceful work stoppages may become increasingly subject to federal court injunction. The Norris-LaGuardia Act (the venerable 1932 federal anti-injunction law) does not by its terms apply to non-employees, possibly including putative non-employee Gig workers, raising the specter of a new era of “Government by Injunction.” Under existing antitrust law, non-employee workers may be viewed as “independent businesspeople” colluding through work stoppages to “fix prices.” The article argues that First Amendment avoidance principles should guide Sherman Act interpretation when non-employee worker activity does not resemble price fixing; and that, consistent with liability principles articulated in the Supreme Court’s recent opinion in Sessions v. Dimaya, antitrust law’s severe penalties should not be applied to Gig workers given the ambiguities in federal and state law employee definitions.

Finally, the article considers the potential for non-union private arbitration agreements exercising restraints on the NLRA rights of employees to engage in work stoppages in light of the Supreme Court’s labor law-diminishing opinion in Epic Systems.

Go Big or Go Home: The Case for Clean Slate Labor Law Reform

Source: Sharon Block, Berkeley Journal of Employment and Labor Law, Vol. 41 no. 1, 2020
David E. Feller Memorial Labor Law Lecture (April 11, 2019)
(subscription required)

….[A]s will come as no surprise to anyone, I have very grave concerns about the future of labor law. I am going to speak tonight about what I see as the overarching weakness in the law and what we need to do to fix it…..

“You’re Fired!” The Common Law Should Respond with the Refashioned Tort of Abusive Discharge

Source: William R. Corbett, Berkeley Journal of Employment and Labor Law, Vol. 41 no. 1, 2020
(subscription required)

From the abstract:
An at will prerogative without limits could be suffered only in an anarchy, and there not for long—it certainly cannot be suffered in a society such as ours without weakening the bond of counter balancing rights and obligations that holds such societies together. Thus, while there may be a right to terminate a contract at will for no reason, or for an arbitrary or irrational reason, there can be no right to terminate such a contract for an unlawful reason or purpose that contravenes public policy. A different interpretation would encourage and sanction lawlessness, which law by its very nature is designed to discourage and prevent.

The Invisible Web at Work: Artificial Intelligence and Electronic Surveillance in the Workplace

Source: Richard A. Bales, Katherine V.W. Stone, Berkeley Journal of Employment and Labor Law, Vol. 41 no. 1, 2020
(subscription required)

From the abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. With these tools, employers can record their workers ’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (AI) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by AI will accompany workers from job to job as they move around the boundaryless workplace. Thus AI and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.

This article describes the many ways AI is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on five areas of law in which AI threatens to undermine worker protections: antidiscrimination law, privacy law, antitrust law, labor law, and employee representation. Finally, this article maps out an agenda for future law reform and research.

Manage Political Messaging Through Dress Codes

Source: Maureen Minehan, Employment Alert, Vol. 37 no. 18, September 1, 2020
(subscription required)

From the abstract:
During every presidential election, employers contend with employees who want to express support for their candidate through hats, buttons, t-shirts, and other apparel emblazoned with candidates’ names or slogans. Add in a new option for expression this year—face masks meant to protect workers and customers from COVID-19—and employers will need to decide what they are willing to permit.