News & Commentary

April 30, 2020

Maxwell Ulin

Maxwell Ulin is a student at Harvard Law School.

In a report released this morning, the Bureau of Labor Statistics estimates that around 3.8 million more Americans filed for unemployment benefits this past week.  This adds to an already daunting 26.5 million workers who had joined the rolls since the pandemic began, now totaling at around 30.3 million people.  Moreover, according to a report released this week by the Economic Policy Institute (EPI), previous numbers likely undercounted the total jobless by between 8.9 and 13.9 million people. EPI estimates that for every ten workers receiving unemployment benefits, three to four tried but failed to secure benefits through their state’s unemployment system, and two more did not try at all due to the expected difficulty. Beyond the obvious economic consequences, job losses are dramatically upending healthcare access; models by the University of Minnesota indicate that as many as 18.4 million people may be at risk of losing employer-sponsored health insurance.

As the pandemic’s economic fallout continues, pressure grows for more congressional action.  On Tuesday, the American Federation of State, County, and Municipal Employees (AFSCME) secured support from House Speaker Nancy Pelosi (D-CA) and Senate Minority Leader Chuck Schumer (D-NY) to push for $700 billion in aid for state and local governments.  The proposed package includes around $300 billion in unrestricted funding and about $200 billion for healthcare and education spending.  Meanwhile, over 100 economists are now urging Speaker Pelosi to pass Rep. Pramila Jayapal’s Paycheck Guarantee Act, which would keep workers employed by subsidizing 100% of worker wages of up to $100,000 annually.

As states begin to reopen in the coming weeks, millions of workers face a difficult choice: stay home and lose one’s job, or go to work and risk one’s health.  Adding to health concerns, the U.S. Chamber of Commerce is now pushing with Republican lawmakers to exempt businesses from liability for coronavirus-related injuries or death.  Such a policy, occupational health experts worry, might dis-incentivize employers to provide necessary protective gear and safety measures for workers.  In response, AFL-CIO President Richard Trumka wrote a letter to Secretary of Labor Eugene Scalia this week demanding clear safety standards for reopening businesses.

Among affected industries, meat packing has proven particularly unsafe. As Mackenzie reported Monday, over 5,000 workers at meat processing facilities have already contracted COVID19, a rate of around 15 times the national average. Counties with the nation’s 150 largest meat plants have also registered higher rates of infection than over 75% of counties across the country. None of this, however, has kept President Trump from deeming meat processors “critical” and ordering the reopening of most plants.  Of the roughly 500,000 meat packing workers put at risk by the order, 44% are Latino, 25% Black, and a full 80% either undocumented or refugees.  In response, 19 members of the Congressional Hispanic Caucus have sent a joint letter to the Departments of Agriculture, Labor, and Health & Human Services demanding that the administration promulgate binding emergency standards for the meat-packing industry.

In the meantime, the Occupational Safety & Health Administration (OSHA) has taken decidedly little action to impose proper safety measures. On Sunday, OSHA released interim guidance for meat processors on how to maintain social distancing and clean equipment in plants.  As guidance documents, however, the rules do not carry independent force of law.  In addition, OSHA has announced that it will not file charges against meat-packing violators so long as they attempt a “good faith effort” to comply with agency standards.  With the risk of infection so high, scores of unions and workers’ rights groups have signed onto a letter urging Congress to pass the Every Worker Protection Act, which would mandate that OSHA issue legally-binding occupational health standards as businesses like meat-packing resume.

OSHA’s enforcement challenges span beyond the meat-packing business.  As Zach reported last week, OSHA now has just 862 inspectors, its lowest number since 1975. 42% of top career posts at OSHA also remain unfilled.  Meager staffing has reduced agency capacity drastically; cases brought by the agency declined by 38% between 2016 and 2019, and annual inspections are down by more than 5,000, or roughly 15%, since the George W. Bush administration. All told, it would take 165 years for OSHA workers to inspect every workplace within their national purview.  At the same time, OSHA complaints skyrocketed to over 7,300 between January 1 and April 22 of this year, overwhelming current capacity.  Looking to fill the vacuum, some state officials, such as the Illinois Attorney General’s Office, have taken on the task of policing private workplaces in OSHA’s stead.

Labor market disruption has also created an unfortunate opening for union busting.  Throughout the spring, companies such as Everlane, Uovo Fine Arts, Trader Joe’s, and Cleveland’s Plain Dealer newspaper have allegedly terminated workers under the pretext of COVID-related cutbacks in order to undermine burgeoning unionization campaigns. Recently, Cort Furniture Store, a subsidiary of Warren Buffet’s famed conglomerate Berkshire Hathaway, purportedly retaliated against its truck drivers for signing union election cards and demanding better protective equipment, laying truckers off on the basis of coronavirus belt-tightening only to higher independent contractors weeks later.  Amazon, the most notorious actor during the crisis, is now being investigated for unfair labor practices by the New York State.

At the same time, certain workers—particularly those deemed “essential”—have gained new workplace leverage during the pandemic and begun organizing in unprecedented numbers.  This past week, Amazon workers walked off the job to protest unsafe work conditions and retaliatory firings at fulfillment centers in Tracy, California and Shakopee, Minnesota, echoing similar protests in Staten Island, Detroit, and Chicago.  Across Illinois, workers at over 40 nursing homes have set a strike date of May 8 to demand higher wages, greater staffing and personal protective equipment (PPE), improved training, and a hazard pay bonus of 50%.

Largest of all, workers at Amazon, Instacart, Whole Foods, Shipt, Walmart, Target, and Fedex will stay home and walk off the job this Friday in an unprecedented May Day strike.  The emerging coalition behind the effort is composed of new labor groups Amazonians United, Target Workers Unite, Whole Worker, Instacart Shoppers, and the Gig Workers’ Collective. Their demands include retroactive compensation for all unpaid time off since the pandemic, PPE equipment at all facilities, hazard pay, paid leave, and greater transparency in reporting workplace diagnoses of COVID19.

Current worker activism and labor market unrest make this a potentially defining moment for the U.S. labor movement, opening doors for either widespread unionization or sharp, recession-induced decline.  As a result, many scholars and organizers have been thinking about how labor leaders ought best to respond; Stephen Lerner, architect of SEIU’s historic Justice for Janitors Campaign, has some thoughts in the American Prospect. More ideas from labor experts can be found at the American Prospect’s new symposium “The Future of Labor in Post-Pandemic America.” On the policy side, meanwhile, Sharon and Ben teamed up with the Roosevelt Institute this month to propose reforms that would give workers a formal role in shaping workplace safety protocols going forward.

Finally, it is worth noting that the American judiciary has continued largely apace this month, if via Zoom. This week, Walmart formalized a $14 million settlement with around 4,000 female workers who were denied employment accommodations for pregnancy between 2013 and 2014.  The West Virginia Supreme Court affirmed the state’s new right-to-work law in Morrisey v. W. Virginia AFL-CIO, while the 9th Circuit refused to rehear its prior en banc decision upholding a California regulation that allows union organizers to visit farmworkers on grower property at select times.

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