For many American workers, the current outlook is bleak, and every indication is that, without significant and sustained government intervention, things will get much worse. More than 16 million people have filed new applications for unemployment insurance in the past three weeks, reflecting unprecedented and catastrophic job losses. Among those who remain employed, many “essential workers”—such as grocery stockers, health care workers, and delivery drivers—have a heightened risk of exposure to COVID-19 if they stay in their jobs. This risk, caused by the global pandemic but exacerbated by inadequate workplace protections, falls disproportionately on people of color and white women. These groups are disproportionately represented among low-wage front-line service workers, and in health care jobs such as nursing and home health care.
In response to this heightened risk, some essential workers are taking their well-being into their own hands, going on strike to demand protective equipment, hazard pay, and paid sick leave. In fact, if there is a single thing that best indicates the inadequacy of our federal worker protection laws, it is that workers have to resort to going on strike in order to receive paid sick leave and other protections in the middle of a lethal pandemic. The list of workers who have taken this stand, collectively refusing to work until it is safe to do so, is impressive, and growing. Recent employers and sectors impacted include Whole Foods and Amazon warehouse workers, Instacart shoppers, Pittsburgh trash collectors, and meatpackers. The list is growing so quickly that the labor news site, The Payday Report, has created an interactive strike map, with forty-five strikes across the country since March.
This situation—a public health emergency that has cascaded into severe job loss and a nationwide economic crisis—should prompt the federal government to strengthen workers’ rights to a safe workplace and to adequate pay and benefits, as well as their right to resort to collective self-help. But instead, the administration has continued to turn its back on workers.
Both right now and for the future, workers need stronger baseline guarantees that are backed by meaningful government enforcement and a robust right to self-help through collective action. The next COVID-19 response bill must not only include economic relief, but also guaranteed paid sick leave for all workers, meaningful safety protections, and stronger protections for workers’ collective action.
COVID-19 Reveals Threats to Workers
Everyone has a personal stake in the health of essential, frontline workers. This has always been true, but the COVID-19 pandemic has brought the message home forcefully. But non-union workers have few legal protections in the workplace. Those protections that do exist are often weakly enforced; further, employer discrimination based on race, gender, disability, or other traits leaves minority workers even more vulnerable to employer mistreatement. Non-enforcement of existing labor standards can be of even greater concern in times of high unemployment, because some employers will feel even more emboldened to ignore even the limited worker protections currently on the books—after all, if workers complain or quit, employers can always find a replacement
Everyone has a personal stake in the health of essential, frontline workers.
It may be shocking to many to read accounts of workers who are sick having to go to work or risk being fired, or of workers pleading for basic personal protective equipment so that they can perform their work without fear of exposure to the virus. But these types of stories predate the COVID-19 epidemic as well—though before now, they were prompted by other illnesses and dangers.
This is because Americans have long had among the fewest workplace rights and protections of any rich country. For example, many countries already guarantee workers the ability to take substantial paid time off when they are ill—whereas U.S. federal law contains no general right to paid sick leave. With the Families First Coronavirus Response Act, Congress made a small step in the right direction. But the leave guaranteed by that law is limited to workers who need leave for COVID-19-related reasons. Further, employers with over 500 employees are exempted altogether, and the U.S. Department of Labor has indicated that it plans to allow small employers to determine for themselves whether they will grant employees’ leave requests, or invoke a small-business exemption.
While there is no federal law yet on the books to guarantee paid sick leave, there is one that is meant to guarantee workplace safety and health. The aptly named Occupational Safety and Health Act (which established the Occupational Safety and Health Administration, commonly referred to as OSHA) requires employers to furnish a workplace that is “free from recognized hazards.” This standard can require employers to provide protective equipment, such as gloves and respirators for frontline workers. But the Administration allowed the number of OSHA inspectors to fall to an all-time low, with only 870 safety inspectors last spring, covering 130 million workers at over 7 million worksites—making the law’s promise of safety and health illusory for many workers. And workers who are fired for trying to exercise their rights to refuse to do dangerous work under the law face a long and uncertain road in getting relief from an agency that has a weak enforcement record.
The same story of weak protections and lax enforcement exists with respect to any number of workplace rights—legal standards that are on the books are both inadequate on their own terms, and sporadically enforced. It is unsurprising, then, that the recent strikes related to COVID-19 did not come out of nowhere. In 2018, 500,000 teachers, nurses, hotel workers, and others struck—a thirty-year high. And recent data from the Bureau of Labor Statistics shows almost as many workers went on strike in 2019. Though the specifics of each strike varied, the rapid increase in strike activity—occurring while labor union membership is at an all-time low—shows workers’ growing anger and dissatisfaction about their working conditions.
Even as current events are showing exactly why workers need both strong baseline legal protections and strong collective action rights, the Administration continues to side with employers over workers. In just the past month, the U.S. Department of Labor’s new Joint Employer rule has taken effect, which the Economic Policy Institute (EPI) has estimated will cost workers more than $1 billion dollars annually due to wage suppression. The National Labor Relations Board, after halting all union elections due to the COVID-19 outbreak, finalized the deceptively titled “Protect Employee Free Choice” rule, which makes it harder for workers to have their unions voluntarily recognized by employers, while also allowing elections to proceed even when there are charges of illegal unfair labor practices that could taint the process.
These actions by the administration to strip workers of rights during a pandemic that can make going to work a life or death decision is only the latest in a series of moves that undermine workers’ right to strike or to form a union, exclude more workers from legal protections altogether, and weaken baseline standards for workers who are covered. The undermining of union rights is especially cruel at the moment, as membership in a union greatly increases one’s access to leave, job protections, and the ability to get hazard pay and protective equipment.
Band-aid solutions that respond narrowly to changes brought on by COVID-19 are not enough. Instead, the moment demands permanent reform of labor and employment law in America to rebalance worker power and provide a real voice and protections for American workers. Congress should take this opportunity to durably expand worker rights. There are numerous bills that would do so that are currently stalled in the Senate; for example, the Protecting the Right to Organize (PRO) Act would immediately offer strong and meaningful protections for workers’ collective action, and improve enforcement of existing labor and employment standards by prohibiting employers from forcing their workers into individual arbitration. Similarly, the Clean Slate for Worker Power, an initiative of Harvard’s Labor and Worklife Program, offers a new approach to legal protections for workers’ collective action. Clean Slate’s recommendations, released earlier this year, would give workers long-sought protections, and a greater voice in the workplace and the economy.
Anyone listening to what workers have been saying over the past couple of years would hear clearly what they need and want: greater protections, higher wages and shared prosperity, benefits that allow them to live safe and healthy lives, a greater voice in the workplace, and the right to organize collectively. The time to respond to these calls is now, in the next phase of Congress’s COVID-19 response. We are in the midst of what veteran labor reporter Dave Jamieson has described as a “workplace revolt”; Congress should answer this revolt by rebalancing the power dynamic in the workplace.
header photo: Amazon employees hold a protest and walkout over conditions at the company’s Staten Island distribution facility in New York City. Source: Spencer Platt/Getty Images