As the economy reopens after the COVID-19 shutdowns, businesses are taking a varied, often patchwork approach to ensuring health and safety for their workers, and much uncertainty persists regarding employers’ obligations and employees’ rights. The Gazette spoke with labor law experts Sharon Block, executive director of the Labor and Worklife Program, and Benjamin Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School (HLS), about how the pandemic has turned a spotlight on the lack of clear workplace protections in general, and in particular for women and people of color, who were disproportionately represented among those deemed essential. Block and Sachs recently co-authored a report urging that U.S. labor law be rebuilt from the ground up. On June 24, they will release the report “Worker Power and Voice in the Pandemic Response.”
Sharon Block and Benjamin Sachs
GAZETTE: What do you think the COVID-19 crisis has revealed about working conditions in the United States?
BLOCK: What it has revealed is something that many of us have known for a long time, but it’s been revealed in a much more urgent way, and it is how tattered our social safety net is in this country. That plays out in in a number of ways: for example, how inadequate our supports for workers are in terms of unemployment insurance. Just look at the desperate circumstances now more than 40 million workers have found themselves in. That’s been the reality for many low-wage workers, not on a mass scale, but that’s been their lived experience, even throughout a time when we thought we were in an expanding economy. The other side that has been exposed is that for workers who have been deemed essential and have worked throughout this crisis, how little protection they have in the workplace to be able to stand up for themselves, to say that their conditions are unsafe and they’re not being paid adequately for the important work they’re doing. On all sides of the social safety net and the ability of low-wage workers to have a decent life, what we’re seeing in myriad ways is how the system has failed workers.
SACHS: I would just add how weak the protections are for workers who stand up and demand safe, healthy, and fair working conditions, and how easy it is to fire workers who do that. It has also shown how badly broken our system of labor law is, which is to say that our system doesn’t give workers a voice so that the only recourse workers have is to take to the streets, and how little opportunity they have for an institutional structure of communication and demand-making. The other thing that Sharon and I would like to stress is how the crisis is being borne disproportionately by workers of color and women, which is another failing of our labor market and our system of labor law.
GAZETTE: Why are workers of color and women bearing the brunt of the coronavirus crisis? What role do the labor market and the labor law system play in it?
BLOCK: This is the result of the broken safety net we have. These are workers who are deemed essential, but the law has not treated as essential. They don’t have basic rights or the law doesn’t adequately address their situation. For lots of low-wage workers who are in these essential industries, the current labor law is particularly broken. They really have almost no real access to being able to act collectively and have the law recognize that and thereby give them power to affect their situation at work. As Ben said, they are predominantly workers of color and women, and that’s a big piece of why this pandemic has hit them so hard. We’re really seeing this connection that a lot of people intuitively knew, but hopefully more people understand now, which is that it is hard to separate economic issues and public health issues and issues of physical well-being. It’s not an accident that most people who are getting sick are poor or paid low wages.
GAZETTE: Can you compare the working conditions of workers in the United States to those in Europe during this coronavirus crisis? Which group fares better?
SACHS: Workers in Europe have a much richer set of protections than workers in the United States. That includes multiple mechanisms for worker voice, unions, works councils, sectoral bargaining, representation, and a much more robust social safety net. The situation is much harsher here.
BLOCK: You can see that just in looking at the simple measure of unemployment in Europe and in the United States. There are examples of many European countries moving much faster to put supports into place. It’s unbelievable that we’ve had over 40 million workers apply for unemployment insurance benefits in this country. But what’s really horrifying is that probably that does not capture everybody who has lost their job because our system of unemployment is so difficult to navigate. In most European countries that’s different, either because they’ve taken a different approach to having agreements to pay wages during this time so that workers keep their jobs, or because you have unions and workers’ organizations, as is the case in some Scandinavian countries, that actually help administer the unemployment insurance system. It’s very, very different from what we have here. In Germany, and probably in other European countries, there is a sectoral bargaining table for fast-food workers. Very quickly in the pandemic, there was an agreement among the government, employers, and unions that those workers would get about 90 percent of their wages, at least for the beginning of the shutdown period. Compare that to what McDonald’s workers are going through in the United States. It’s just a different world.
GAZETTE: You have advocated in favor of sectoral bargaining, a system of collective bargaining that happens between an entire sector, such as the fast-food industry, and all the workers in that sector. How would that help workers in the time of coronavirus?
SACHS: It has become completely obvious that we can’t rely on the government, particularly the federal government, to protect workers. The Trump Occupational Safety and Health Administration (OSHA) hasn’t taken the elementary step of promulgating a standard for dealing with this crisis, much less a sophisticated enforcement program. We need to rely on workers to have the power to protect their own safety and health, and public health, as well. In our view, we can give workers that power through a system of collective bargaining, which has several components, including sectoral bargaining.
The reason to have sectoral bargaining over safety and health issues during the pandemic is threefold: One, there are safety and health issues common across all firms in a given sector; all grocery stores have similar safety and health problems, all hospitals have similar safety and health problems, and so on. It makes sense to address those common issues at a single bargaining table. Doing so alleviates a lot of the cost of negotiating standards. If you have to do the same thing at thousands and thousands of firms across the country, that’s much more costly. The other reason to do it sectorally is that you can take the costs of safety and health compliance out of competition if all the firms in the sector have to comply with the same baseline safety and health standards. Nobody should be competing by cutting corners on safety and health. That said, sectoral safety and health negotiations aren’t enough. We need workers’ voices over these issues at the workplace level as well. Sharon and I are recommending a system of workplace safety and health committees at the workplace, which would implement and adapt sectoral safety and health standards to the local conditions of a given workplace.
GAZETTE: What responsibilities do employers have with essential workers? And now that the economy is reopening and many more workers are going back to work, what are their obligations to those workers?
BLOCK: Sometimes it isn’t clearly understood, but in our law, employers have a responsibility to provide a safe and healthful workplace. Period. It is their obligation to do that for workers. We have a federal agency that is supposed to help define how to do that and enforce that obligation. Unfortunately, they are not doing that. In fact, there was just a hearing recently in the House of Representatives where the head of OSHA absolutely refused to answer any questions about why that agency has not issued standards for employers on how to provide a safe and healthful workplace. It’s really important to understand that is where that obligation is. To me, it is horrifying that workers are having to make that decision for themselves: whether to walk into a workplace that they are not sure is safe or risk losing their job. Workers are being threatened with their unemployment benefits being cut off if they refuse to work in a place that is unsafe, either because the employer isn’t taking the steps necessary to make it safe or because they have some underlying condition that makes them particularly vulnerable. As this opening up happens, states are putting procedures in place to cut off unemployment benefits for workers who refuse to return to work and yet those states and the federal government are not doing what is necessary to ensure that the workplaces workers have to go back to are safe.
SACHS: Our perspective is that what the law should do is empower workers to demand safe and healthy workplaces, that we shouldn’t have to rely on the government because we can’t rely on the government. Workers shouldn’t have to rely on the goodwill of their employers. They should have the power to insist upon safety and health, and making sure that workers have that power is going to require significant legal reforms. That’s what we need.
GAZETTE: Much has been said about gig workers, Uber drivers, Amazon workers, delivery workers, and their lack of protection during this crisis. Given their classification as independent workers, what obligations do companies have to them?
BLOCK: This is just another example of how the law has so been stacked against workers who need its protection the most. For the most part, they are left out of the social safety net. They don’t have access to collective bargaining rights or unemployment insurance. But in the relief legislation that passed, for the first time, people who have been treated by their employers as independent contractors, gig workers, or self-employed people, can apply for some unemployment insurance benefits. But it’s clearly not enough. States have been slow to process claims under this provision of the relief act to provide gig workers with unemployment benefits, not to mention the fact that none of the companies that treat their workers as independent contractors have paid into the system. This is just a whole other set of problems about responsibility because companies are creating these conditions where workers are so precarious but hold no responsibility for the consequences of that treatment.
I hope this crisis helps the public understand that when companies misclassify workers as independent contractors and talk about vague notions of flexibility and independence, it has real-world consequences, and a lot of workers are having to live with those dire consequences.
GAZETTE: With the reopening of the economy, what legal workplace issues are you most concerned about?
BLOCK: It has to start with safety and having some way of assuring that workers are walking back into workplaces that are safe, and we just don’t have that in place right now. We don’t have that in place because OSHA has abdicated responsibility and because workers don’t have the power for the most part to be able to assert that for themselves. We don’t have it because we have no coherent testing strategy to figure out who is sick or who is a vector of disease transmission. When you put these all together, it’s just heartbreaking to think about workers having to make the decision and say, “Do I walk back into that workplace or do I stay home and stay safe and lose my unemployment insurance benefits?” There’s a whole other set of issues if schools are closed. What happens to childcare? What happens to children who are home? I was in the Obama administration for eight years, and we fought constantly for some kind of coherent childcare program in this country. We’re going to really see how that gap is going to even further devastate women’s employment in the wake of the pandemic.
SACHS: So many of these problems have existed for decades now. What the pandemic sadly did was made them far more acute and immediate. The potential upside is that it gives us an opportunity to really do the kind of rebuilding and restructuring that we need, providing a much, much more robust social safety net, and much more robust protections for worker health and safety. From our perspective, the critical piece is empowering workers to have a voice in the shaping of their own work lives. That is the essence of where we need to go, and our hope is that that will be possible before too long.
This interview has been condensed and edited for length and clarity.