Commentary, COVID-19

Veteran attorney explains rights of people heading back to work and hoping to stay safe

My workplace is reopening, but I’m afraid conditions there are unsafe. What can I do?

The North Carolina Division of Employment Security will consider that you have good cause not to return to work, and you may be eligible to continue to receive unemployment benefits, under the following circumstances:

  1. You have been diagnosed with or have symptoms of COVID-19 and a medical professional has advised you not to go to work;
  2. A member of your household has COVID-19 or you are caring for a family or household member with COVID-19;
  3. You are at high risk for COVID-19 ( 65 years of age or older, or have serious underlying medical conditions including being immunocompromised or having chronic lung disease, moderate-to-severe asthma, serious heart conditions, severe obesity, diabetes, chronic kidney disease and undergoing dialysis, or liver disease);
  4. You are the primary caregiver of a child or person in your household whose school or care facility is closed due to COVID and you can’t work because of the closure;
  5. You can’t get to work because of a quarantine order or a health care provider has advised you to self-quarantine;
  6. You can’t report to work because of a government order regarding travel, business operations, or mass travel;
  7. You reasonably believe there is a valid degree of risk to your health and safety due to a significant risk of exposure or infection to COVID-19 at your employer’s place of business due to a failure of the employer to comply with guidelines as set out by the CDC, other governmental authorities or industry groups as may be found in CDC guidance, the Governor’s Executive Orders, or other binding authority; or due to objective reasons that the employer’s facility is not safe for you to return to work.

I have returned to work (or I have been working), and things are not safe. What are my options?

  1. Raise your concerns with your employer. Workers have the most legal protection when they bring complaints or concerns to their employer in a group of two of more people. Look at the CDC and OSHA guidelines for businesses. Be as specific as you can about what you think needs to happen in your workplace in order for you to safely return to work.
  2. File an OSHA complaint. You have a legal right to a safe and healthy workplace. You can file a complaint with the NC Occupational Safety and Health Division by calling 1-800-NC-LABOR or filing a complaint online. You do not have to give your name, but if you don’t, be as specific as you can about the workplace location and the problems (such as a lack of masks on the processing floor, or no social distancing between employees in the warehouse). Let OSHA know how many people are exposed to the unsafe conditions.
  3. If you qualify, request paid leave. If you have a child who is not able to attend school or daycare because of COVID-19 and your employer has fewer than 500 employees, you may qualify for up to 12 weeks of paid emergency leave. This leave is paid for by the federal government through your employer, and is paid at 2/3 of your normal pay up to a capped amount. It is available to people who cannot work or telework because the child’s school or daycare is closed.
  4. Apply for unemployment benefits, if you decide not to stay at work. If you leave your job, you will need to show you had good cause to do so in order to get unemployment benefits. See the information on page 1 of this flyer about when you may have good cause. Get a doctor’s note, if you are at high risk.If you are getting paid leave through your employer, you must use that leave before applying for unemployment. All applications during the COVID-19 crisis must be filed online or by phone, 1-888-737-0259. If you are denied unemployment benefits, you have 10 days to appeal the agency’s decision against you. You need to appeal in writing.

I have COVID-19. Now what? Read more

Commentary, Trump Administration

Trump administration rolls back labor protections

The Trump Administration this week made good on its promise to roll back its Department of Labor’s stance regarding protections for employees who work for more than one company.

Formally adopting its proposed interpretation of “joint employment,” the Department set forth criteria for when it thinks a company is sufficiently involved in a worker’s employment that it should be liable for wage and hour violations suffered by that worker.

Not surprisingly, this new standard is much more stringent that what is being used by most courts, and what the Department’s interpretation was of joint employment under the previous administration.

By restricting a finding of joint employment to those companies who hire or fire, pay, keep employment records, and control schedules and job conditions, it will be harder for the Department to enforce wage standards in workplaces where higher level corporations contract out responsibility to other entities.

Fortunately, because the rule is arguably interpretive rather than legislative, it may not be entitled to much deference by the courts.  It should also be relatively straightforward for a future administration to return to a more common-sense interpretation.  Worker advocates are considering their options.

Resources on Joint Employment are available here and here from the N.C. Justice Center and the National Employment Law Project, respectively.

Carol Brooke is a senior attorney with the N.C. Justice Center’s Workers’ Rights Project. Policy Watch is also a Justice Center project. 

Commentary, Trump Administration

Trump administration rule change would stymie workers’ suits against employers

“The Future of Work.”

It sounds so promising, with its emphasis on flexibility, app-based employment, and following your passion.  Some of that future is here now, and it’s not living up to the promise.

Workers misclassified as independent contractors lose out on valuable benefits.  Workers cobble together multiple “gigs” in a vain attempt to keep their financial heads above water.  And corporations make out like bandits by very effectively distancing themselves from any responsibility for their employees.

Now the Trump Administration wants to increase that distance.  They propose to do so by adopting new regulations that change how you determine when a top level corporation is sufficiently involved in an employee’s work, limiting a worker’s ability to sue them – not just the middleman – when those employees aren’t paid correctly.

Right now, there is a broad test used by courts to determine who is an employer when there is more than one possible answer to that question.  The proposed new rule would significantly narrow that test – making it much harder for workers to go up the food chain and sue the entity that may be most responsible for the wage violation.  Not unexpectedly, that higher level company may also be the only one who can afford to pay the workers who have been cheated.

In 2014, dozens of hardworking janitorial employees who cleaned Durham schools learned that the subcontractor who employed them had declared bankruptcy and would not be paying them their final two weeks of wages.  Not only that, but the workers were owed overtime and back wages for underpayment of the promised hourly rate.

Because these workers were jointly employed by the school system and the higher level contractor, as well as their bankrupt subcontractor, they were able to reach a settlement and receive back wages.  Had the proposed new rule been in effect at the time, it is unlikely these workers would have been able to recover anything, since the contractor and school system who contracted out the work would probably not be considered employers who were responsible for ensuring the workers were properly paid.

Temporary workers and those who work through staffing agencies will be particularly impacted if the proposed joint employer rule goes into effect.  In North Carolina, temporary employment has grown faster than in the nation as a whole, increasing by 52 percent between 2009 and 2014.[1]  Temporary and staffing work has particularly increased in low-wage, “blue-collar” occupations, especially in more hazardous industries such as construction, manufacturing and logistics.

If the joint employer rule goes into effect, it will incentivize the use of temporary, staffing, and subcontracted workers rather than direct hires because it will protect companies from liability.  This is a problem because these so-called “contingent” workers earn considerably less money than permanent, direct-hire workers.  Contingent workers lose out on training, benefits, and overtime pay.  Read more

Commentary, News

Attorney General moves to limit anti-worker “no poaching” agreements

Attorney General Josh Stein

North Carolina Attorney General Josh Stein took an important step forward in protecting both businesses and workers this week by announcing a new multi-state settlement that prohibits several major fast food companies from forcing their employees to sign “no-poaching” agreements — or contracts that prohibit employees of one franchise from moving to another.

Public attention has been drawn to employers’ increasing use of non-compete agreements to keep their low-wage workers from taking other similar jobs in the same industry. One of the more infamous cases involves Jimmy John’s, which forced its front line sandwich makers to sign binding agreements promising not to work for a competitor sandwich-making company under certain circumstances. Although employers typically use non-competes to keep skilled employees from taking proprietary knowledge to a competing business, these kinds of restrictions for low-wage workers—who clearly lack such skills or knowledge — is nothing more than an effort to suppress wages by limiting these workers’ options.

Unfortunately, some industries have upped the ante from non-competes and are increasingly using another stealth tactic to limit employees’ job mobility: no-poaching agreements.

These agreements take non-competes one step further and prohibit employees of one franchise location from taking a job with another franchise of the same company. In other words, a McDonald’s in downtown Raleigh could prohibit an employee from leaving to work at a different McDonald’s franchise in Southeast Raleigh. Even more troubling, workers may not even be aware when accepting a job that future job opportunities are restricted by these agreements, which are signed between employers.

Because the fast food industry has become a chronic abuser of no-poaching agreements,  on March 12, North Carolina joined 12 other states and the District of Columbia in reaching a settlement with Arby’s, Dunkin’ Donuts, Five Guys, and Little Caesars.  Those restaurants have agreed not to include no-poaching clauses in their franchise agreements, to remove them from existing agreements, and not to enforce such clauses.  Investigations are continuing into Burger King, Popeyes, and Panera.

This agreement follows a major effort by the Washington attorney general resulting in no-poaching clauses in franchise agreements nationwide with a wide range of companies, well beyond the fast food industry.  The most recent agreement included Einstein Bros. Bagel, Express Employment Professionals, FASTSIGNS, L&L Franchising, The Maids, Westside Pizza and Zeek’s Pizza, bringing the total number of companies affected to 57.

Employees interested in learning their rights with respect to non-compete agreements can find information here.

Carol Brooke is a senior attorney with the N.C. Justice Center’s Workers’ Rights Project. 

Commentary, News, public health, Trump Administration

Trump administration moves to curb health and safety rules for workers

President Donald Trump (Credit: Gage Skidmore/Wikimedia Commons)

The Trump Administration launched its latest attack on working people yesterday, repealing a 2016 rule requiring large employers to electronically report injuries and illnesses to the federal Occupational Safety and Health Administration (OSHA).

And this is just the latest assault. Previous efforts have included privatization of inspections in hog slaughtering plants, allowing 16- and 17-year-olds to operate patient lifting machines in nursing homes, limiting mine and oil rig inspections, and many others.

See the statement below from Deborah Berkowitz, program director for worker health and safety with the National Employment Law Project, a nonpartisan research and advocacy group that focuses on low-wage and unemployed workers:

“Today, despite the ongoing federal government shutdown, the Trump administration announced yet another rollback of workplace safety protections. The final rule, published today, allows dangerous employers to hide workplace injuries, seriously hindering the efforts of the Occupational Safety and Health Administration (OSHA)—as well as the efforts of state agencies, the public health community, workers, and employers—to identify and prevent workplace injuries.

“The administration’s new rule repeals provisions of an existing rule adopted in 2016—the ‘Improve Tracking of Workplace Injuries and Illnesses’ rule—which required large employers (those with 250 or more workers in an establishment) to electronically submit to OSHA important detailed information on injuries at their workplaces. The administration has arbitrarily reversed the conclusions of the 2016 final rule, which found enormous benefits to the rule—not just in targeting scarce agency enforcement resources, but in providing compliance assistance and overall injury prevention efforts.

“Without citing any supporting evidence or facts, the Trump administration has again sided with big corporate interests over working people. It ignores the abundance of evidence that workers and their representatives overwhelmingly supported the collection of this data. Once again, the Trump administration has ignored the voices of workers and their representatives, and listened exclusively to large corporations and their lobbyists who don’t want to report any of this information to the government and the public. It’s yet another shameful move by the Trump administration.”

Carol Brooke is a senior attorney for the N.C. Justice Center’s Workers’ Rights project.