Nicholas Anway is a student at Harvard Law School.
In today’s news and commentary: The NLRB battles Whole Foods over workers’ Black Lives Matter apparel; the New York Times details the rise of the worker productivity score; and as temperatures rise, industries fight against heat safeguards for workers.
The National Labor Relations Board (“NLRB”) is litigating a complaint against Whole Foods for terminating workers in at least six states for wearing Black Lives Matter (“BLM”) apparel in 2020, Bloomberg reports. Whole Foods argues that when its staffers were on the clock, their clothes were speaking for Whole Foods and that they were not authorized to speak about BLM. But the NLRB’s top prosecutor, Jennifer Abruzzo, argues that these workers are protected by the right of employees, even those without a union, to organize in an effort to change their working conditions. Employee speech about BLM, Abruzzo argues, is protected because it is relevant to employees’ “mutual aid or protection.” And Abruzzo counters that BLM is not too controversial to be allowed on employees’ apparel, as Whole Foods suggests. “That’s like saying, back in the ’50s, ‘We have to keep Black people in the backroom because our customers don’t want a Black person,’ ” she told one reporter. “I don’t find that to be particularly persuasive.”
According to reporting by the New York Times, employees are increasingly being “tracked, recorded and ranked” as employers across industries seek efficiency and accountability gains from workers. “Eight of the 10 largest private U.S. employers track the productivity metrics of individual workers, many in real time,” the Times explains. Employee surveillance is increasingly common across job types, impacting both blue-collar and white-collar workers. “Architects, academic administrators, doctors, nursing home workers and lawyers described growing electronic surveillance over every minute of their workday.” Workers, “whether working remotely or in person, are subject to trackers, scores, ‘idle’ buttons, or just quiet, constantly accumulating records.” Although many employers claim that these surveillance measures lead to productivity increases, employees subjected to them echo the complaints that surveilled employees in lower paying positions have voiced for years: that “their jobs are relentless” and that “they don’t have control.”
Rising temperatures are increasing the need to keep workers safe from heat-related injuries. States like California and Washington have adopted workplace rules to address heat exposure. But the Washington Post reports that, “many other states’ attempts to mandate these protections have been blocked or weakened following opposition from industry groups representing agriculture, construction and other business interests, according to public records and those involved in efforts to craft new rules.” In Nevada, for example, workplace heat stress complaints nearly tripled from 2016 to 2021, but a heat safety regulation adopted by the state’s Occupational Safety and Health Administration has been stalled by industry groups for months. The Biden Administration’s plan to draft new heat rules for workers is likely to face similar resistance from the nation’s biggest companies.
Daily News & Commentary
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January 9
TPS cancellation litigation updates; NFL appeals Second Circuit decision to SCOTUS; EEOC wins retaliation claim; Mamdani taps seasoned worker advocates to join him.
January 8
Pittsburg Post-Gazette announces closure in response to labor dispute, Texas AFT sues the state on First Amendment grounds, Baltimore approves its first project labor agreement, and the Board formally regains a quorum.
January 7
Wilcox requests en banc review at DC Circuit; 9th Circuit rules that ministry can consider sexual orientation in hiring decisions
January 5
Minor league hockey players strike and win new deal; Hochul endorses no tax on tips; Trump administration drops appeal concerning layoffs.
December 22
Worker-friendly legislation enacted in New York; UW Professor wins free speech case; Trucking company ordered to pay $23 million to Teamsters.
December 21
Argentine unions march against labor law reform; WNBA players vote to authorize a strike; and the NLRB prepares to clear its backlog.