News & Commentary

February 9, 2022

Jason Vazquez

Jason Vazquez is a student at Harvard Law School.

In the midst of the ongoing unionization efforts erupting at dozens of Starbucks franchises throughout the country, seven workers were fired from one Starbucks restaurant located in Memphis, Tennessee on Tuesday, which allegedly included nearly the entire union organizing committee. The company asserted that the workers at issue had violated several safety and security policies—things like opening a locked door without permission and allowing unauthorized individuals in the back of house—though one shift supervisor who was among those discharged insisted that she had had never heard of any such policies. The company’s conduct appears to constitute a relatively clear-cut violation of § 8(a)(1) of the NLRA, and the workers reportedly intend to file ULP charges with the NLRB. The reader can donate to a fundraiser supporting these terminated workers here.

The Department of Labor issued a letter to state workforce agencies yesterday expanding the permissible circumstances in which states may waive recovery of overpayments under the CARES Act, the first installment of federal pandemic relief legislation that both expanded traditional unemployment insurance through a series of new programs and also created a temporary federally-funded UI program, called Pandemic Unemployment Assistance (PUA), for workers, such as the self-employed and independent contractors, who didn’t qualify for traditional UI. (15 U.S.C. § 9021). The DOL letter explains that state unemployment agencies’ struggles to process the tsunami of claims that poured in during the early phase of the pandemic resulted in “a significant number of state errors and inaccuracies,” but recognized that “seeking recovery of . . . overpayments from individuals who did not commit fraud, especially in light of the economic effects of the pandemic, creates an extraordinary hardship on working families.” In addition to the two individualized bases for waiving an overpayment already provided for in an earlier DOL guidance from last year—without fault on the part the claimant or contrary to equity and good conscience—yesterday’s letter enumerated seven scenarios for which a state may issue a blanket waiver of claimants’ overpayments, including, for example, where claimants incorrectly answered certain eligibility questions or where the state paid claimants a higher weekly benefit amount than that to which they were entitled.

In other news from the Biden Administration’s Department of Labor, Bloomberg reports that the Wage and Hour Division of the DOL, the federal office tasked with enforcing the Fair Labor Standards Act and several other major federal employment laws, is stepping up its oversight of the warehouse and logistics industry, pledging “vigorous enforcement,” according to Acting Administrator Jessica Looman, to ensure that warehousing and logistical workers are receiving the prescribed minimum wages, overtime premium, and other workplace benefits and protections furnished by federal law. The Division intends to aggressively investigate warehouses, rather than passively waiting for workers to file complaints. In an interview on Tuesday, Looman explained that her office “want[s] to make sure that the outcome, as we’re continuing to move out of this pandemic, hasn’t been an opportunity for greater exploitation of workers, but instead that we have learned a lot of lessons and it can be an opportunity to empower more workers.”

A bipartisan bill was introduced in the U.S. Senate on Monday[1] seeking to eradicate international forced labor by compelling multinational corporations “to disclose the use of forced labor in their direct supply chain.” The bill, titled the Slave-Free Business Certification Act of 2022 and sponsored by Senators Josh Hawley (R-MO) and Kristen Gillibrand (D-NY), would require large manufacturing and production companies to conduct audits of their supply chain in order to identify any use of forced labor, and then submit a report to the Secretary of Labor containing their findings. Additionally, the Act requires covered corporations to publish their report under “a conspicuous and easily understood link” on the homepage of their website. The bill authorizes the Secretary to impose both civil damages, up to $100,000,000, and punitive damages, up to $500,000,000, upon a covered business entity that fails to comply with the requirements of the Act.

In a press release, Hawley, often identified as a leader of the new wave of allegedly populist, pro-worker Republicans, vowed that “the scourge of global slave labor must end and multinational corporations complicit in this moral atrocity must be held accountable,” asserting that the Slave-Free Business Certification Act “takes important steps . . . to protect American workers and end labor exploitation across the globe.”

Though its aim of eradicating slave labor in international supply chains is surely a noble one, it’s unclear how substantially Hawley’s bill, were it to become law, would inhibit such practices. In any event, it remains to be seen whether the bill is likely to be signed into law. Though Hawley introduced a version of this proposal in July 2020 that never made it to the Senate floor, President Biden signed into law at the end of last year the bipartisan Uyghur Forced Labor Prevention Act, which addressed similar concerns related to the international use of forced labor and passed both chambers of Congress by large majorities. That Act sought to prohibit, through the Tariff Act of 1930 (19 U.S.C. § 1307), the importation of goods produced or manufactured in the Xinjiang territory in China, a region where, according to the State Department, the Chinese government continues to use slave labor.

Out West, the California State Legislature passed a bill on Monday, AB-84, that requires most employers in the Golden State to provide up to two weeks of paid sick leave to employees unable to work for one of several qualifying COVID-19 related reasons, including caring for sick family members. A previous California law that provided similar paid leave expired in September of last year, and AB-84 is retroactive to January 1, 2022. The legislation excepts small businesses with fewer than 25 employees, however, which data suggest may leave at least one in four workers in the state unable to access these crucial benefits. Nevertheless, the bill will now be sent to Governor Gavin Newsom’s (D) desk, where he’s expected to sign it into law in the coming days.

Finally, in local news, Boston Mayor Michelle Wu (D) announced this morning that three MBTA bus routes, which run through low-income neighborhoods in Boston and have some of the highest rates of ridership in the city, will be free for two years starting in March. The $8 million plan was initially approved by the Boston City Council in December but then faced unexpected hindrance by federal regulations. Under guidelines issued by the Federal Transit Administration (contained in an agency circular, which are contractually binding on all transit providers who have accepted federal financial assistance), a transit provider must conduct an equity analysis prior to any temporary fare reduction lasting longer than six months (FTA C 4702.1B c. IV, § 7(b)(1)(a)(iii)), in order to comply with anti-discrimination regulations promulgated by the U.S. Department of Transportation under Title VI of the Civil Rights Act (see 49 CFR part 21). Wu revealed that she had just recently learned about these federal administrative restrictions after her fare-elimination plan was passed in December, and she had been working with the MBTA and federal officials to resolve the issue. This morning, however, she announced that the pilot program would commence on March 1, proclaiming that “this is just the beginning of access to fare-free public transit in Boston.” Though limited in scale, those of us who appreciate the safety, convenience, and sustainability of public transit—and recognize the crucial role it does, can, and must play in making life easier for working people and the poor—will be heartened to hear the news.

[1] Though both NBC News and Fox reported yesterday that the bill was introduced on Monday, the Congressional Record indicates that the bill was introduced on February 3, 2022

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