Analysis

Virus-Inspired Worker Uprisings May Have Lasting Impact

By Braden Campbell
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Law360 (April 14, 2020, 10:09 PM EDT) -- A dearth of protections for fast food workers, subway operators and other essential workers who continue to toil on the front lines of the coronavirus outbreak has triggered a wave of strikes and walk-offs that experts say will not only persist through the pandemic but also have long-term reverberations.

The recent reported firings of two white collar Amazon workers who spoke out about conditions in the company’s warehouses follow weeks of actions by package sorters, McDonald’s cashiers and others seeking masks, site closures and other protections from COVID-19. And the uptick in workers banding together to improve their lot isn’t expected to taper off anytime soon.

“I think we’re going to continue to see this, and perhaps even more,” said Steven Suflas, a Ballard Spahr LLP partner who advises businesses on labor relations.

The early days of the pandemic were marked by relative peace between workers and their employers. But as the number of confirmed coronavirus cases swelled in late March, unrest grew.

On March 30, a worker in Amazon’s Staten Island distribution center staged a walkout to protest the retailer’s handling of the pandemic after a colleague fell ill. The worker demanded that the company close and sanitize the facility and provide workers paid time off when they have virus symptoms, not just when they have a confirmed case of COVID-19 or have been in direct contact with someone who does, as the company started offering last month. About 25 workers took part in the protest and another 50 or so watched, said organizer Chris Smalls, whom Amazon later fired, ostensibly for going to the facility after having direct contact with his sick colleague.

That same day, a subset of grocery couriers with gig-economy company Instacart refused to make deliveries without hazard pay and safety gear, and Whole Foods organizing group Whole Worker called on employees of the Amazon-owned grocer to skip work to demand hazard pay and paid leave for workers who self-quarantine. Several more protests have followed in the weeks since, including a strike by hundreds of workers across more than 50 California fast food restaurants after workers in Los Angeles tested positive for COVID-19. Some employers have met workers’ demands, to an extent.

This surge in worker activity comes in the absence of a federal mandate for employers to shield most workers from the novel coronavirus.

The U.S. Department of Labor’s Occupational Safety and Health Administration, which sets and enforces workplace safety rules, can temporarily raise standards when necessary to protect workers from “grave danger.” It flexed this power during the H1N1 pandemic in 2009, ordering health care employers to protect high-risk workers by providing protective equipment and implementing "engineering controls" such as conducting certain medical procedures in isolation rooms, among other things.

Congressional Democrats, union leaders and other workers’ advocates have called on OSHA to raise standards for essential employers still operating during the crisis, but those calls have gone mostly unheeded so far.

On Tuesday, OSHA issued a plan for investigating complaints of unsafe conditions in certain high-risk workplaces, notably health care facilities. But that won’t help most workers, said Deborah Berkowitz, work safety and health program director for the National Employment Law Project.

The situation at Smithfield Foods’ pork processing plant in South Dakota exemplifies the dangers workers face without federal protections, Berkowitz said. The company announced it was closing the plant indefinitely Sunday after hundreds of workers tested positive for COVID-19.

“In this case, OSHA had issued no mandates, so this employer did not separate workers by 6 feet, did not include hand sanitizer everywhere, did not give workers a mask,” Berkowitz said. The Centers for Disease Control and Prevention has recommended employers implement such measures, but OSHA has not forced them to.

A few unions have staged actions, such as the North Atlantic States Regional Council of Carpenters, which told workers to stop working effective April 6 “until it is safe to do so.” But unionized workers have in many cases secured protections without having to take dramatic action.

On March 31, the same day as the Whole Foods protest, the United Food and Commercial Workers union and grocery chain Kroger Co. announced $2-per-hour raises for workers, plus paid leave for when they have coronavirus symptoms. The company also agreed to shorten store hours to allow more time for restocking, rest and cleaning, and to install plexiglass partitions separating customers and cashiers, UFCW said.

UFCW Local 1500, which represents grocery workers in and around New York City, insisted early on that employers let workers wear masks, President Rob Newell said. Some employers pushed back, but those objections “ended up getting handled via phone conversations,” rather than worker action or a legal demand, he said. Since then, the union has persuaded all multistore employers to provide hazard pay, and is working with grocers to enforce social distancing and customer count limits.

That last effort “is getting better but still has far to go,” Newell said.

The Transport Workers Union, which represents public transit workers in many major cities, has secured masks and service changes to protect members from the virus, President John Samuelsen told Law360. For example, it eased crowding on trains in the Bronx — where many essential workers live — by persuading the Metropolitan Transportation Authority to divert trains from areas of Manhattan where more people are teleworking, he said.

As nonunion workers struggle to win similar protections, some are reaching out to unions. Samuelsen, whose union also represents rail and airline workers, said TWU has lately been fielding inquiries from transit workers in the South, where few workers are in unions. Other union presidents told Law360 they've similarly seen an uptick in interest.

“This [pandemic] has brought extreme clarity to the fact that the workers that, on a day-to-day basis, advance American society, are blue-collar workers,” Samuelsen said. “In the aftermath of COVID-19, there’s going to be an organizing boom.”

The Service Employees International Union and its Fight for $15 wage advocacy offshoot have tried to focus this fervor through their newly launched Protect All Workers campaign. The group has issued a long list of demands, ranging from layoff protections for airline workers and other industry-specific wants, to more sweeping changes such as full wage replacement for all displaced workers.

The group has staged several actions in the weeks since its mid-March launch, including the fast food strikes in California and a nationwide health care worker protest calling on President Donald Trump to procure more protective equipment.

“People are fed up,” SEIU President Mary Kay Henry said. “Working people are talking to each other and organizing to demand change, both immediate changes and those reaching far past this pandemic.”

This surge in worker action appears to have staying power, said Michael Duff, a labor law professor at the University of Wyoming College of Law.

Duff, who was a National Labor Relations Board attorney and a union airline ramp worker before entering academia, said the trend reflects the dangers front-line workers now face.

Ordinarily, job hazards are baked into compensation. And as demand for essential workers peaks, so does their leverage over employers, Duff said.

“This is a little slice of time in history when workers almost intuitively come to understand just how much power they have,” he said.

--Editing by Aaron Pelc.

Update: This story has been updated with additional comment from a union official. 

For a reprint of this article, please contact reprints@law360.com.

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