This past week, nurses at UCLA’s Santa Monica Hospital protested publicly for not receiving adequate personal protective equipment (PPE). Similar protests have been popping up all around the country as front-line workers demand that employers take appropriate measures to keep them healthy and safe. Already, too many workers have needlessly and tragically lost their lives in the line of duty. While the COVID-19 pandemic has presented unique and significant challenges for employers to provide their employees with a safe workplace, they need to be doing more.
Common sense and compassion for people providing vital
services should lead to companies doing everything they can to provide necessary
protections for the safety of their employees during this unprecedented time. If
the moral imperative is not enough, employers should know they have a legal
obligation to do so.
California Labor Code Section 6401 states: “Every employer shall furnish and use safety devices and safeguards, … which are reasonably adequate to render such employment and place of employment safe and healthful. Every employer shall do every other thing reasonably necessary to protect the life, safety, and health of employees.”
Given what we know about the new coronavirus, providing masks, gloves, soap, and sanitizing products should be mandatory for employers whose employees have to come into contact with the public. Yet there are countless stories of front-line workers being denied these necessary precautions. In a recent Freedom of Information Act (FOIA) request by The Washington Post, the Occupational Safety and Health Administration reported there were over 3,000 coronavirus-related complaints filed from January through early April. That number does not even include all of the complaints filed with state agencies, like California’s Cal/OSHA, which is similarly inundated with employee complaints.
Besides health and safety equipment and protocols, what about
employees, many in vulnerable positions based on health considerations and the
virus threat, who request to work remotely?
Here, state law also offers some protection. If an employee has a disability that would make that employee more vulnerable to the virus and requests an accommodation to work at home, refusal to do so could violate California’s Fair Employment & Housing Act (FEHA). Similarly, if an employee lives with someone who has a disability that makes them more vulnerable to the virus, the employee should request an accommodation to work at home in order to minimize the risk to the person they live with. Refusal to grant the request could violate the FEHA because an employee who is “associated with” a person with a disability also has accommodation rights.
Importantly, an employer must also reimburse an employee for any expenses incurred by the employee to obtain necessary safety equipment or to otherwise keep themselves safe (yes, that protective equipment made from store bought swim goggles and trash bags is reimbursable). Even lodging costs may be reimbursable under state law if an employee is forced to self-isolate away from home because they live with someone who has the virus or is vulnerable to the virus.
If an employee requests safety equipment, safer working conditions or safety accommodations, including working at home, and the employer retaliates by terminating the employee, suspending them, or imposing another hardship, the employee may have legal recourse. Threats, intimidation or coercion to require any employee to take unreasonable safety risks, including the threat of termination, can constitute a violation of Civil Code § 52.1, which prohibits persons from interfering, or attempting to interfere, by threat, intimidation, or coercion, with the exercise or enjoyment of rights secured by the Constitution or laws of the United States or California. California Labor Code §§ 6310 and 6311 make it unlawful to retaliate because of safety or health complaints and protect employees who refuse to perform hazardous job duties. Health and Safety Code § 1278.5 also specifically prohibits retaliation against health care whistle-blowers.
The legal consequences of those protective measures make it even more imperative that companies adhere to their obligation to provide safe workplaces. For those employers that do not take that obligation seriously or, worse, retaliate against their employees, California law provides robust protection. If workers continue to face unsafe working conditions or retaliatory conduct, they should exercise their legal rights and consult with an employment lawyer.
In this new reality, we understand businesses are facing immense pressure, but they must remember – workers’ lives are at stake. Now is the time for businesses to rise up to the challenge and do everything reasonably necessary to protect their employees.
Civil rights attorney V. James DeSimone, of V. James DeSimone Law of Marina del Rey, has dedicated his 36-year law career to providing vigorous and ethical representation to achieve justice for those whose civil and constitutional rights are violated. His team represents individuals and families in employment, police misconduct, school abuse, and personal injury cases. You can find out more about their work at www.vjamesdesimonelaw.com
By Andy Katz.UPDATED: March 27, 2020 with more details on new unemployment insurance benefits (incl. from the federal stimulus bill); health insurance for furloughed or laid off workers; tax credits; which jobs are deemed essential; and more.
As COVID-19 spreads, many workers are considering how to protect themselves and their families – while worrying about their work and budgets.
The
California Department of Public Health had previously issued “social
distancing” recommendations and other guidance to protect public health, urging
vulnerable populations including people who are 65 years or older, in addition
to people with certain health conditions such as heart disease, lung disease,
diabetes, kidney disease, and weakened immune systems. Several County
Public Health Departments, including Alameda,
Contra
Costa, San
Francisco, San Mateo, Santa
Clara, Santa
Cruz, and Sonoma
Counties also include people who are 60 years or older within vulnerable
populations. A UCSF
Expert Panel advised: “Anyone over 60 stay at home unless it’s critical.”
Assessment of what workers should do to be safe, and the role they could
play in helping slow the spread of the virus is beyond the scope of an article
about legal rights. However, it is clear from recent advisories that workers
have legitimate reasons for concern. Many people want to heed the call of
public-health experts to stay home out of concern for the heightened risk of
severe complications for vulnerable populations. Understanding how current laws
may protect them is critical information to have as workers weigh these
important decisions and advocate with their employers for what they need. This
post provides an overview of where workers stand as of today, bearing in mind
that many advocacy groups, including CELA
(California Employment Lawyers Association) and its national counterpart, NELA, are pressing Congress and the California
legislature to offer even more protection and much-needed relief to California
workers as they try to make the choices that are best for themselves, their
families, and society at large. Read on for important answers to frequently
asked questions about California workers’ rights in the time of COVID-19.
I’M LOSING WAGES. WHAT WILL HELP?
California Workers Can Apply for Wage Replacement for Disability and
Reduced Work Hours
Two state-run programs are available for employees in need of wage
replacement during a “Shelter in Place” order, and to support
social distancing for their health and safety – Unemployment Insurance (UI) and
State
Disability Insurance (SDI), both administered by the Employment Development
Department (EDD). Governor Newsom’s Executive
Order waived the usual one-week waiting period for people who are
unemployed and/or disabled as a result of COVID-19.
If an employer closes the workplace due to COVID-19, including as a
result of a “Shelter in Place” order, and doesn’t pay or only partially pays
its employees, workers can apply for Unemployment Insurance (UI) or, if
eligible, SDI. Unemployment Insurance benefits cover approximately 50
percent of wages, up to a maximum of $450 per week, which is taxable. The Federal CARES Act
adds $600 to each weekly benefit check, extends the maximum weeks of UI
benefits from 26 weeks to 39 weeks, and allows retroactive payment of benefits
for income loss beginning January 27, 2020.
The Act also provides advance payments of a tax credit to taxpayers of
$1,200 per adult plus $500 per child. These
tax credits phase out for individuals earning $75,000 – $99,000 or couples
earning $150,000 – $198,000.
State Disability Insurance eligibility defines disability to include any
illness or injury preventing regular or customary work. Benefits cover
60-70 percent of wages up to a maximum of $1,300 per week for up to 52 weeks,
and are tax-exempt. A worker must be unable to work for at least eight days,
and must submit medical certification by a health practitioner prior to
issuance of benefits. Electronic certification options are available for health
practitioners. Applications may be
submitted within 49 days of the first date they had to stop working because of
disability.
While the EDD hasn’t yet confirmed that applications citing only age-related
vulnerabilities will be approved, they have confirmed that people who cannot
work due to “having
or being exposed” to COVID-19, if certified by a medical professional, can
file a Disability Insurance claim.
Older workers who are in an age-defined vulnerable population and
who obtain medical certification of their age-related condition as an “illness”
may also be eligible for disability benefits, although there is no
certain answer to this question yet. When doctors or other healthcare providers
are filling in the disability forms, they should consider using “R54,” the
International Classification of Diseases code for “age-related
physical debility” when there isn’t a more specific condition.
EDD also administers Paid Family
Leave (PFL) benefits, allowing up to six weeks of PFL at the SDI rate to
Californians who are unable to work because they are caring for an ill or
quarantined family member with COVID-19, if certified by a medical
professional.
WHAT IF I’M LOSING MY HEALTH INSURANCE DUE TO BEING FURLOUGHED OR LAID OFF?
The Federal
and California
COBRA laws require employers with at least two employees to offer continuation
of the employer-sponsored health plan for up to 36 months at the same monthly
rate the employer paid for the premium.
Laid off employees can also choose to enroll in a health plan offered
through Covered California, where
subsidies available under the Affordable Care Act may offer less expensive
coverage than the employer’s COBRA plan.
The Special Enrollment Period to enroll in a plan through Covered
California lasts 60 days from losing job-based coverage. Due to the emergency, special
enrollment is open for all Californians until June 30, 2020.
WHAT IF MY CHILD’S SCHOOL IS CLOSED
BECAUSE OF CORONAVIRUS?
Federal Response, California School Emergency Leave and Unemployment
Benefits May Help Some Workers
If you miss work to care for your child after their school closes, you may
be eligible for Unemployment Insurance. The Employment Development Department
is handling school closure applications on a case-by-case basis, and
encouraging claims for partial benefits where the employer is allowing reduced
hours, but has not yet clarified whether the usual requirements of being
available for work will be waived where the employer does not allow reduced
hours. Employees should apply right away since the usual 7-day waiting period
for benefits has been waived due to COVID-19.
Once the ‘Families
First’ Coronavirus Response Act goes into effect April 1, employees who
have worked for a covered employer more than 30 days will be eligible for
twelve weeks of leave, paid at two-thirds of regular pay, up to a maximum of
$200 per day or $10,000 total.
Also, under California’s
Labor Code, employers with 25 or more employees working at the same
location must allow employees to take up to 40 hours of leave per year to
address an emergency at a child’s day care or school. However, an employee must
still notify the employer in advance.
WHAT IF I GET SICK, OR I NEED TO CARE FOR
FAMILY?
State and Local Sick or Medical Leave Laws Offer Protection
Employees who are sick can take accrued paid sick days. How many sick days
are available depends on employer policies, although California requires
employers to provide minimally three days of paid sick leave and some cities
require even more. Employees who work for employers of 50 or more people have
more rights and may be eligible for up to twelve weeks of unpaid time off.
Employees sent home but are asked to work must be compensated for that work
without loss of sick leave.
For people who work for an employer with at least 50 employees within 75
miles of their worksite, California law requires employers to provide twelve
weeks of job-protected leave each year under the Family Medical Leave Act (FMLA)
or the California
Family Rights Act (CFRA) for a “serious health condition” of the employee
or a member of their family. To qualify for this leave, the employee must have
worked for the employer for at least one year total during their lifetime and
have worked at least 1,250 hours in the last calendar year. So, if an employee
or family member contracts COVID-19, they are likely to be protected by the
medical leave laws. These laws may also protect individuals with compromised
immune systems if a doctor takes them off work because they or a family member
suffer from a chronic condition.
It’s important to understand that FMLA and CFRA leave is unpaid
(although State
Disability Insurance may be available).
California’s Disability Rights Law Provides for Reasonable
Accommodation
The law requires employers to consider offering work-from-home or medical
leaves of absence as a reasonable accommodation under the California Fair
Employment and Housing Act (FEHA) for people who qualify as having a
disability under the law. This is a case-by-case analysis, but employees with
compromised immune systems or who are medically at risk should assert their
rights and request the accommodations they need to remain safe.
California employers with at least 5 employees are required to
provide reasonable accommodations, unless they are able to meet a very
high standard to prove that doing so would cause an undue hardship.
Legal Aid at Work has a very helpful guide on how
to request a reasonable accommodation. The best practice is to
submit written documentation of the disability and the need for the
accommodation, including a doctor’s note. If that’s not possible given the
impacted healthcare system, employees can explain their need for accommodations
to their employer and refer to publicly-available information to justify the
need for reasonable accommodation.
The extraordinary conditions and risks of COVID-19 will broaden the range of
employees who qualify for reasonable accommodations under FEHA. Disability
under FEHA is broadly construed to mean a physical disability, including a
condition that affects the immunological system and limits a major life
activity. The law already recognizes that “major life activities” include
interacting with others, working, and major functions of the immune
system. There is an exception that refers to the common cold and common
flu, but there is nothing common about COVID-19, so that exception should not
apply.
The goal of reasonable accommodations is to keep the employee working (and
earning a paycheck). So the first possibility to consider is telecommuting. Telecommuting
is a reasonable accommodation where it allows the employee to continue to
perform the essential functions of their job. For employees who can
work via computer, video-conferencing and phone, this is an ideal choice.
Employers can refuse this accommodation if letting the employee telecommute
imposes an undue hardship on the employer’s operations.
If a job cannot be done remotely, a last-resort accommodation is a leave of
absence, which is an
option under the law where “the leave is likely to be effective in allowing
the employee to return to work at the end of the leave, with or without further
reasonable accommodation, and does not create an undue hardship for the
employer.”
Employers cannot have blanket policies refusing telecommuting or medical
leaves (or any other possible accommodation). Instead, employers must engage
in a good faith interactive process to find an effective reasonable
accommodation.
Discrimination or retaliation against a person with a disability,
including disciplining them, treating them differently than other workers or
terminating them is prohibitedunder
California law. This protection extends to people who the employer assumes
or “regards” as a person with a disability. While employers can require medical
documentation of a disability and the employee’s limitations, they cannot force
employees to disclose a specific health condition or disability.
WHAT IF SOMEONE I LIVE WITH IS VULNERABLE
TO COVID-19?
The California
Family Rights Act (CFRA), discussed above, requires twelve weeks of
job-protected leave for covered employees caring for a “serious health
condition” of a family member. Up to six weeks of Paid Family
Leave (PFL) benefits are available through the EDD.
Employees are also protected under the California Fair
Employment and Housing Act (FEHA) from discrimination or
retaliation, such as harassment or wrongful termination, due to a known
relationship or association with someone with a known disability. This
includes making a request for a reasonable accommodation, whether that request
is granted or not. While no court has ruled yet on the specific issue of
whether an employer must grant an accommodation based on a family member’s
disability, one
Appellate Court considering this issue discussed the
possibility that the law “may reasonably be interpreted to require
accommodation based on the employee’s association with a physically disabled
person.”
It is highly recommended to review this type of complex situation with an
attorney familiar with employment law.
WHAT IF I AM OR COULD BE EXPOSED TO
COVID-19 IN MY WORKPLACE?
Employer Illness and Injury Prevention Programs
In furtherance of its mission to ensure safe workplaces and enforcing
requirements for all employers to have an Injury and Illness Prevention
Program, Cal/OSHA has issued Interim Guidelines for General
Industry and other specific industries, like childcare providers and
health-care workers, from COVID-19. These guidelines include actively
encouraging sick employees to stay home, sending employees with acute
respiratory symptoms home immediately, and preparing an outbreak response plan
in the event of an outbreak.
State disability and medical privacy laws generally prevent an employer from
asking an employee about their medical conditions. However, employers can ask for a medical
examination or about disability issues if there is a reasonable belief, based
on objective evidence, that an employee’s ability to perform essential job
functions will be impaired by a medical condition, or that a medical condition
will pose a direct threat. For example,
if an employee confirms to an employer they have COVID-19, the employer should identify
everyone the infected employee was in contact with during the CDC-identified
14-day period, notify the identified individuals of possible exposure, and
could consider sending the exposed employees home for 14 days. Employers may not disclose the names or personal information of the employee
who tested positive.
For an employee who is concerned about workplace safety,
“internal” whistle-blowing is a protected activity when a
complaint is made to a manager that identifies facts that could violate
Cal/OSHA requirements. For more serious situations, formal complaints can be filed
with Cal/OSHA, and written documentation could assist if the employer
disputes that internal whistle-blowing occurred.
An employee may also refuse to perform work that would result in a Cal/OSHA
violation that creates a real and apparent hazard to the
employee or their coworkers, and may seek back pay for lost wages. More information on workplace safety standards
is available from WorkSafe,
a nonprofit research and advocacy organization.
These situations are complex, and consultation with an
attorney is highly recommended, because an employer can take the position that
an undocumented failure to go to work is a non-retaliatory business reason
to terminate employment.
IS MY JOB REALLY ESSENTIAL?
The State
Public Health Officer has issued a list of “Essential Critical Infrastructure Workers.”
Disability accommodation and workplace safety requirements still apply when
performing essential work. Determinations
of which precise businesses and functions are deemed “essential” are made by
the California Department of Public Health and County Health Officers, and in
some cases local police departments have closed non-essential workplaces.
Worker’s Compensation
Employers are responsible to provide compensation through the worker’s
compensation system for injuries arising in the course of employment.
An injured worker who was exposed to and contracted COVID-19 at or
through their work can make a claim by completing DWC1 form
and sending it to their employer.
Any workplace exposure must be a significant contributing factor to an
employee’s injury for a claim to be compensable. Employers frequently dispute
whether an injury is work-related. Those disputes are typically resolved by the
Worker’s Compensation Appeals Board based on the medical report of a Panel
Qualified Medical Examiner appointed by the Division of Worker’s Compensation,
likely a specialist in Immunology or Internal Medicine.
If the claim is approved, benefits include temporary disability wage
replacement, medical care, and compensation for permanent impairment.
Unfortunately, misclassified independent contractors who are employees under
the new “ABC
Test” of AB 5 (2019) are not eligible for worker’s compensation until July
1, 2020.
More Protections Needed During this Public Health Emergency
Additional protections are needed during this public health emergency.
California Governor Gavin Newsom, members of the California Legislature, and
the United States Congress have announced plans to introduce legislation that
may further protect workers subject to an isolation or quarantine order by a
health official from discrimination or retaliation, or offer better wage
replacement for people who are in quarantine or caring for family members.
Stay tuned to this post for ongoing updates.
Andy Katz is the principal of Law Offices of Andy Katz, fighting for workers' rights, consumers, and environmental protection. His law practice focuses on workplace discrimination and retaliation, wage theft, workers’ compensation, and health and disability insurance denials. He previously advocated for public health issues before the California legislature. He is a member of the California Employment Lawyers Association (CELA).
Web: www.andykatzlaw.com
社区法律援助机构Legal Aid at Work提供了“如何申请合理工作安排”的指南。在申请合理工作安排时最好的做法就是提供残疾和工作安排要求的书面文件，包括医生证明。如果因医疗系统受损而无法提供这类文件，雇员可向雇主解释或提供可资参考的公共信息，证明合理处所的实际需要。比如说，加州公共卫生局鼓励高危人群“呆在家中”，三藩市公共卫生局则敦促工作人员“尽可能远程通勤”，并“避免接触患病人士”。
加州职业安全局（Division of Occupational Safety and Health – “Cal/OSHA”）提供了为应付COVID-19的有关指引。该指引覆盖大部分行业，包括托儿和医疗，积极鼓励有病患的雇员呆在家里，将有急性呼吸道症状的员工立即回家，做好疫情爆发的反应预案。针对健康护理行业的雇员，指引还强调了培训、操作实践以及个人保护设施的使用等方面。
BERKELEY, CALIFORNIA – Congress passed the ‘Families First’ Coronavirus Response Act yesterday, which provides emergency paid sick leave and paid family leave to many employees, but with significant exceptions. This Act goes into effect April 1. The law covers employers with up to 500 employees, but employers with 50 or fewer may seek exceptions from the Department of Labor, and those with 25 or fewer are not obligated to reinstate an employee to their previous position.
Under the Act, employees are entitled to up to two weeks of
emergency paid sick leave and up to twelve weeks of emergency paid family
leave. For emergency paid sick leave, employees must be “unable to work (or
telework) due to a need for leave” because the employee: (1) is subject to a
federal, state, or local quarantine order related to COVID-19, (2) has been
advised by a health care provider to self-quarantine due to concerns related to
COVID-19, (3) is experiencing symptoms of COVID-19 and is seeking medical
diagnosis, (4) caring for an individual subject to quarantine order, or has
been advised to self-quarantine due to concerns related to COVID-19, (5) caring
for a child, if their school or child-care provider has closed due to COVID-19,
or (6) other conditions that the Federal government may specify later.
If taking emergency paid sick leave to care for oneself, the
employee is paid 100% of their full rate of pay, up to $511 per day and $5,110
total. When leave is taken to care for
others or for other qualifying reasons provided under the Act, an employee is
paid two-thirds of their full rate of pay, up to $200 per day and $2,000
total. This leave is in addition to any other
paid leave to which an employee is already entitled to. Employers cannot require that regular sick
leave or paid time off be used before, or instead of, using this emergency sick
leave.
The Act also allows employees
to take up to twelve weeks of emergency family leave. To qualify, an employee must
have worked for their employer for at least 30 calendar days (unlike emergency
paid sick leave, which is available to any employee, regardless of hours of
work or length of service). These workers
can take emergency family leave if they are unable to work (or to telework) due
to a need to care for the employee’s son or daughter under 18 years old if the
child’s school or place of care has been closed, or childcare provider is
unavailable. The closure or
unavailability of childcare must be due to an officially declared COVID-19
public health emergency (by comparison, emergency paid sick leave is available
when the closure or unavailability of childcare is due to COVID-19 precautions).
When an employee is taking
emergency family leave, the first 10 days may be unpaid (generally, the
employee would likely take emergency paid sick leave during this 10-day
period). After 10 days, the employee is entitled to two-third of their regular
rate of pay, capped at $200 per day and $10,000 total.
While the ‘Families First’ Coronavirus Response Act will provide much-needed relief for many working families across the country, millions of workers are left out of the law or are ineligible because of restrictive definitions of family caregiving. California must act now to fill these gaps and ensure that all workers are entitled to job-protected leave and wage replacement benefits to weather the storm of this unprecedented crisis.
BERKELEY, CALIFORNIA – Mientras el COVID-19 se difunda, muchos trabajadores están considerando cómo protegerse a sí mismos y a sus familias, mientras se preocupan por su trabajo y sus presupuestos.
La evaluación de lo que los
trabajadores deberían hacer para estar seguros y el papel que podrían
desempeñar para ayudar a frenar la propagación del virus está fuera del alcance
de un artículo sobre derechos legales. Sin embargo, de las recientes
advertencias se confirma que los trabajadores tienen motivos legítimos de
preocupación. Muchas personas quieren escuchar el llamado de los expertos en
salud pública para que se queden en sus hogares por temor al mayor riesgo de
complicaciones graves para las poblaciones vulnerables. Comprender cómo las
leyes actuales pueden protegerlos es una información crítica que deben tener
los trabajadores mientras sopesan estas decisiones importantes y abogan con sus
empleadores por lo que necesitan. Esta publicación proporciona un resumen
general de la situación actual de los trabajadores, teniendo en cuenta que
muchos grupos de defensa, incluida la CELA y su contraparte nacional, NELA,
están presionando al Congreso y a la legislatura de California para ofrecer aún
más protección y ayuda muy necesaria a los trabajadores de California mientras
intentan tomar las mejores decisiones para sí mismo y sus familias. Siga
leyendo para obtener respuestas importantes a las preguntas frecuentes sobre
los derechos de los trabajadores de California en la época de COVID-19.
¿QUÉ SUCEDE SI ME ENFERMO O NECESITO CUIDAR A LA
FAMILIA?
Se ofrece protección por las leyes de licencia medica o licencia por
enfermedad
Los empleados que están
enfermos pueden tomar días de enfermedad pagados si ya los tienen acumulados.
La cantidad de días de enfermedad disponibles depende de las políticas del
empleador, aunque California requiere que los empleadores proporcionen un mínimo
de tres días de licencia por enfermedad pagada por año y algunas ciudades
requieren aún más. Los empleados que trabajan para empleadores que tengan 50 o
más empleados tienen más derechos y pueden ser elegibles para hasta doce
semanas de tiempo fuera del trabajo, sin pago. Los empleados enviados a casa,
pero se les pide que trabajen, deben ser compensados por ese trabajo sin tener
que usar su tiempo acumulado de licencia por enfermedad.
Los empleadores que toman
represalias contra los empleados por tomarse una licencia por enfermedad a la
cual tienen derecho bajo la ley corren
el riesgo de responsabilidad por demandas por despido injustificado. Lo que
está claro es que las cantidades legalmente requeridas de licencia por
enfermedad no son suficientes, especialmente si un trabajador está tratando de
pasar una cuarentena de 14 días o enfrenta incertidumbre con los miembros
vulnerables de su hogar. Los trabajadores frequentemente clasificados
erróneamente como contratistas independientes tienen
los mismos derechos de licencia por enfermedad que los empleados bajo AB 5, aún
si su empleador los llama un “contratista independiente.”
Los empleados clasificados erróneamente pueden presentar reclamos en la corte o
en el Departamento de
Aplicación de Normas Laborales (DLSE).
Para las personas que
trabajan para un empleador que tiene por lo menos 50 empleados dentro de un
radio de 75 millas de su lugar de trabajo, la ley de California exige que los
empleadores otorguen 12 semanas de
licencia laboral protegida cada año bajo la Ley de
Licencia Médica Familiar (FMLA) o la Ley
de Derechos Familiares de California (CFRA) para una “condición
grave de salud” del empleado o un miembro de su familia. Para calificar
para esta licencia, el empleado debe haber trabajado para el empleador durante
al menos un año en total durante su vida y haber trabajado al menos 1,250 horas
en el último año calendario. Por lo tanto, si un empleado o miembro de la
familia contrata COVID-19, es probable que estén protegidos por las leyes de
licencia médica. Estas leyes también pueden proteger a las personas con
sistemas inmunes comprometidos si un médico los retira del trabajo porque ellos
o un miembro de su familia sufre de una afección crónica.
La ley de derechos de los discapacitados de California proporciona
adaptaciones razonables
La ley requiere que los
empleadores consideren ofrecer trabajo desde el hogar o licencias médicas como
una acomodación razonable bajo la Ley
de Vivienda y Empleo Justo de California (FEHA) para las personas
que califican como discapacitadas según la ley. Se requiere un análisis de caso
por caso, pero los empleados con sistemas inmunes comprometidos o con riesgo
médico deben hacer valer sus derechos y solicitar las adaptaciones que
necesitan para mantenerse seguros.
Se requiere que los empleadores de California con al menos 5 empleados
proporcionen adaptaciones razonables, a menos que puedan cumplir con un estándar muy alto para demostrar que el hacerlo
causaría una dificultad excesiva.
Legal Aid at Work tiene una
guía muy útil sobre cómo
solicitar una adaptación razonable. La mejor práctica es
presentar documentación escrita de la discapacidad y la necesidad de la
adaptación, incluida una nota del médico. Si eso no es posible dado el sistema
de salud afectado, los empleados pueden explicar su necesidad de adaptaciones a
su empleador y consultar la información disponible públicamente para justificar
la necesidad de adaptaciones razonables.
El objetivo de las
adaptaciones razonables es mantener al empleado trabajando (y ganando un
cheque). Entonces, la primera posibilidad que hay que considerar es el teletrabajo. El teletrabajo es una acomodación
razonable donde le permite al empleado continuar desempeñando las funciones
esenciales de su trabajo. Para los empleados que pueden trabajar por
computadora, videoconferencia y teléfono, esta es una opción ideal. Los
empleadores pueden rechazar esta acomodación si el permitir que el empleado
tele-trabaje imponga una carga excesiva a las operaciones del empleador.
Si no se
puede realizar un trabajo de forma remota, una adaptación de último recurso es
un permiso de ausencia, lo cual es una
opción según la ley donde “es probable que el permiso sea efectivo para
permitir que el empleado regrese al trabajo al final del permiso, con o sin
adaptaciones razonables adicionales, y no crea dificultades excesivas para el
empleador.”
Los
empleadores no pueden tener políticas generales que rechacen el teletrabajo o
las licencias médicas (o cualquier otro adaptación posible). En cambio, los empleadores deben participar en un
proceso interactivo de buena fe para encontrar una adaptación razonable y
efectiva.
La ley de Californiaprohíbe las represalias contra una persona con una discapacidad, incluso por disciplinarlas, tratarlas de manera diferente a otros trabajadores, o despedirlas. Esta protección se extiende a las personas que el empleador asume o “considera” como una persona con discapacidad. Si bien los empleadores pueden requerir documentación médica de una discapacidad y las limitaciones de los empleados, no pueden obligar a los empleados a revelar una condición de salud o discapacidad específica.
¿QUÉ PASA SI LA ESCUELA DE MI HIJA O HIJO ESTÁ CERRADA
POR CORONAVIRUS?
El permiso de emergencia escolar y los beneficios de
desempleo de California pueden ayudar a algunos trabajadores
Si pierde el
trabajo para cuidar a su hija o hijo después del cierre de su escuela, puede
ser elegible para el seguro de desempleo. El Departamento de Desarrollo de
Empleo está manejando las solicitudes de cierre de escuelas caso por caso, y
está alentando los reclamos de beneficios parciales donde el empleador permite
horas reducidas, pero aún no ha aclarado si los requisitos regulares de estar
disponible para trabajar no se aplicarán cuando el empleador no permita horas
reducidas. Los empleados deben presentar una solicitud de inmediato ya que el período
habitual de espera de 7 días para los beneficios no se aplica debido a
COVID-19. Lea más sobre
esto a continuación.
Además, según
el Código
Laboral de California, los empleadores con 25 o más empleados que trabajan en
el mismo lugar deben permitir que los empleados tomen hasta 40 horas de
licencia por año para atender una emergencia en la guardería o escuela de un
niño. Sin embargo, un empleado aún debe notificar al empleador por adelantado.
ESTOY PERDIENDO SALARIOS. ¿QUÉ AYUDARÁ?
Los trabajadores de California pueden solicitar el reemplazo salarial por discapacidad
y horas reducidas de trabajo
Hay dos programas estatales
disponibles para los empleados que necesitan un reemplazo
salarial para apoyar el distanciamiento social por su salud y seguridad: el Seguro
Estatal de Incapacidad (SDI)
y el Seguro de Desempleo (UI),
ambos administrados por el Departamento de Desarrollo del Empleo (EDD). La Orden
Ejecutiva del Gobernador Newsom renunció al período habitual de
espera de una semana para las personas que están desempleadas y / o
discapacitadas como resultado de COVID-19.
La elegibilidad del Seguro
Estatal de Discapacidad define la discapacidad para incluir cualquier
enfermedad o lesión que impida el trabajo regular o habitual. Los beneficios cubren 60-70 por ciento de
los salarios hasta un máximo de $1,300 por semana durante un máximo de 52 semanas,
y están exentos de impuestos. Un trabajador debe ser incapaz de trabajar
durante al menos ocho días y debe presentar un certificado médico por un
profesional de la salud antes de la emisión de beneficios. Las solicitudes
pueden presentarse dentro de los 49 días de la primera fecha en que tuvieron
que dejar de trabajar debido a una discapacidad.
Si bien el EDD aún no ha
confirmado que las aplicaciones que citan solo vulnerabilidades relacionadas
con la edad serán aprobadas, han confirmado que las personas que no pueden
trabajar debido a “tener o
estar expuestas” a COVID-19, si están certificadas por un
profesional médico, pueden presentar un reclamo de seguro por discapacidad.
Los trabajadores de más edad que se encuentran en una población vulnerable
definida por la edad y que obtienen la certificación médica de su condición
relacionada con la edad como una “enfermedad” también pueden ser elegibles para los beneficios por
discapacidad, aunque todavía no hay una respuesta segura a esta pregunta.
Cuando los médicos u otros proveedores de atención médica completan los
formularios de discapacidad, deberían considerar el uso de “R54,” el
código de Clasificación Internacional de Enfermedades para la “debilidad
física relacionada con la edad” cuando no hay una afección más
específica.
El EDD también administra
los beneficios de Permiso Familiar
Pagado (PFL), permitiendo hasta seis semanas de PFL a la tasa SDI a
los californianos que no pueden trabajar porque están cuidando a un familiar
enfermo o en cuarentena con COVID-19, si está certificado por un médico
profesional.
Si un empleador cierra el lugar de trabajo debido a COVID-19 y no paga o
solo paga parcialmente a sus empleados, los trabajadores pueden solicitar el
seguro de desempleo (UI) o, si es elegible, SDI. Los beneficios del seguro de desempleo cubren aproximadamente el 50 por
ciento de los salarios, hasta un máximo de $450 por semana, lo cual si es imponible.
¿QUÉ SUCEDE SI ESTOY EXPUESTO AL COVID-19 EN MI
LUGAR DE TRABAJO?
Programas de prevención de lesiones y enfermedades del empleador y
compensación para trabajadores
En cumplimiento de su
misión de garantizar lugares de trabajo seguros y hacer cumplir los requisitos
para que todos los empleadores tengan un Programa de Prevención de Lesiones y
Enfermedades, Cal / OSHA ha emitido Directrices Provisionales para la industria
general y la protección de los trabajadores de la
salud contra COVID-19. Estas directrices incluyen alentar
activamente a los empleados enfermos a quedarse en casa, enviar a los empleados
con síntomas respiratorios agudos a casa de inmediato, y preparar un plan de
respuesta ante un brote en caso de un brote. La orientación para los
trabajadores de atención médica enfatiza la capacitación, los controles de
prácticas laborales, y el equipo de protección personal.
Los empleadores son
responsables de proporcionar compensación a través del sistema de compensación
del trabajador por lesiones que surjan en el curso del empleo.
Un trabajador lesionado que estuvo expuesto y contrató el COVID-19 en su
trabajo o a través de él puede presentar un reclamo por completar el formulario
DWC1 y enviándolo a
su empleador.
Cualquier exposición en el
lugar de trabajo debe ser un factor importante que contribuya a la lesión de un
empleado. Los empleadores frecuentemente disputan si una lesión está
relacionada con el trabajo. Esas disputas generalmente son resueltas por la Mesa
de Apelaciones de Compensación del Trabajador con base en el informe médico de
un médico forense calificado por panel designado por la División de
Compensación del Trabajador, probablemente un especialista en inmunología o
medicina interna.
Si se aprueba el reclamo,
los beneficios incluyen el reemplazo de salario por incapacidad temporal,
atención médica, y compensación por incapacidad permanente. Desafortunadamente,
los contratistas independientes erróneamente que realmente son empleados bajo
la nueva “prueba
ABC” de AB 5 (2019) no son elegibles para la compensación del
trabajador hasta el 1 de julio de 2020.
Se necesitan más protecciones durante esta
emergencia de salud pública
Se necesitan protecciones
adicionales durante esta emergencia de salud pública. El gobernador de
California, Gavin Newsom, miembros de la Legislatura de California, y el
Congreso de los Estados Unidos han anunciado planes para introducir legislación
que pueda proteger a los trabajadores sujetos a una orden de aislamiento o
cuarentena por parte de un funcionario de salud contra la discriminación o las
represalias. La Cámara de Representantes aprobó un paquete
de ayuda federal pendiente que extendería hasta tres meses de
licencia familiar remunerada por cuarentena (incluida la auto-cuarentena) y
cuidado de niños debido a la emergencia de salud pública, 14 días adicionales
de licencia por enfermedad remunerada para todos trabajadores estadounidenses
durante una emergencia de salud pública, además de 8.67 días acumulados por
año. El paquete también requeriría que los Estados alivien los requisitos de
IU. Sin embargo, el Senado aún no ha tomado medidas sobre esta propuesta de
ley. Estén atentos a esta publicación para actualizaciones continuas.
Andy Katz is the principal of Law Offices of Andy Katz, fighting for workers' rights, consumers, and environmental protection. His law practice focuses on workplace discrimination and retaliation, wage theft, workers’ compensation, and health and disability insurance denials. He previously advocated for public health issues before the California legislature. He is a member of the California Employment Lawyers Association (CELA).
Web: www.andykatzlaw.com
A new effort is underway to deprive a certain class of workers of the most basic benefits and protections of employment.
Last month, Assemblymember Marie Waldron (R-San Diego) introduced AB 500, which would allow employers to hire workers who have successfully completed a drug rehabilitation program following conviction of a non-violent felony as independent contractors rather than employees for a period of two years.
The targets of this bill are workers for whom steady and fair employment is a means to rebuild a life and to prevent a relapse of the ravages of addiction. AB 500 is a cynical bill that would codify discrimination and perpetuate mistreatment of this already vulnerable group.
For starters, the language of the bill violates existing federal anti-discrimination law. The Americans with Disabilities Act considers those who have received treatment for drug or alcohol abuse as qualified individuals with a disability who are entitled to reasonable accommodation. Contrary to the express purpose of the ADA, AB 500 stigmatizes individuals who have completed a substance abuse rehabilitation program by denying them, for a period of two years, the legal protections normally offered to employees in California. Stigmatizing people with disabilities is what gave rise to the disability rights movement to begin with.
Codifying second class status for workers with a substance abuse history is bad enough, but the effect of the bill is even more insidious. Under California law, a person who provides services for another person or entity is presumed to be an employee of that person or entity – as opposed to an independent contractor. The distinction is meaningful. Independent contractors are not entitled to the protections of the California Labor Code, which means they have no minimum wage or overtime protections and no entitlement to meal and rest breaks. Independent contractors are also exempted from the laws prohibiting discrimination or retaliation in the workplace, and they are not entitled to unemployment insurance or Social Security contributions. The bill would also allow employers to avoid the cost of carrying workers’ compensation insurance, leaving independent contractors unprotected in the event of a workplace injury.
Employers often complain that the cost of providing these benefits to their workers has grown too high and some may look with favor at the proposed economic windfall — being able to hire rehabilitated drug offenders for two years for less than the minimum wage, without having to provide overtime pay, workers’ compensation insurance or protections from unlawful discrimination. But these benefits are essential to providing a fair and safe work environment for California workers. Without these protections, the State would invariably end up shouldering much of the costs, while the employers would reap all the benefits.
Some advocates of the bill may believe that the bill encourages employers to give people with a history of substance abuse an opportunity to work their way into full employment status. But AB 500 would require applicants to disclose to potential employers that they have been convicted of a crime. Such disclosure is currently prohibited under certain circumstances. More importantly, there is ample evidence that qualified applicants who disclose their criminal history are just as likely to be denied employment altogether, a result directly contrary to the intended result.
Others may take a harder line toward former substance abusers, believing that second class status in the workplace is appropriate because substance abusers should suffer the consequences of their poor decisions. But how does stripping anti-discrimination protections, overtime, and workers’ compensation achieve any policy goal related to rehabilitation or substance abuse prevention?
What is undeniable is that AB 500 targets a vulnerable constituency. And if the move to strip their rights is successful, it could embolden employers to seek further erosions of the benefits and protections of employees. Who would be next? The long-term unemployed, veterans, the homeless? For those already struggling to become productive members of society, our goal should be to eliminate obstacles, not create them.
Sami N. Khadder is the founder of the Khadder Law Firm. He has a decade of litigation experience, with the majority of his career dedicated to fighting for the rights of employees and individuals. Mr. Khadder began his career as an intellectual property defense attorney, but soon realized that the pursuit of justice on behalf of those who need it most was a far more gratifying use of his legal education and experience. Mr. Khadder looks forward to continuing the fight for justice.
A fundamental change has taken place in the American workplace, and we are only now beginning to realize just how monumental it is.
A new book, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done About It, by David Weil, makes the case that in every corner of the employment world, companies are increasingly shedding their employees, while maintaining control over the ultimate product or services to be provided under the “lead” company’s logo and brand. Beginning with peripheral services such as janitorial and security, and gradually including ever more central services, such as receptionists, truckers, and even lawyers, large employers are deliberately subcontracting out their work.
Here’s how it works: A member of a loading dock crew is paid by one company, which is in turn compensated by another company, for the number of trucks loaded. That company, Schneider Logistics, manages distribution centers for Wal-Mart. Wal-Mart sets the price, time requirements, and performance standards that are followed by Schneider, which in turn uses those standards to structure its contracts with its subcontractors.
Why do they do it? Employers can reduce costs by pushing many of the responsibilities connected to being the employer of record down the chain to someone else. Yet by controlling the quality and price of their goods and services, they do not lose their reputations and the goodwill of their brands.
But should lead companies be allowed to have it both ways? Should they be permitted to control the production, delivery, and cost of goods and services, without sustaining any liability for the manner in which their contractors provide them? To take a real world example, if a company like Wal-Mart sets a price that is so low that the only way for suppliers to meet it is by underpaying their employees, isn’t that really Wal-Mart’s responsibility?
This new “fissuring” model has drastic consequences for employees who have been forced to trade in traditional jobs at a lead company, with benefits and a pension plan, for part-time temporary positions with no benefits. Pushing responsibilities down the chain often means that the direct employer is less well capitalized and less capable of maintaining wage and hour standards, or enforcing health and safety rules. Since the company on top sets the price, often as low as the market will possibly bear, the company on the bottom is forced to cut to the bone. Many of the subcontractors are small businesses that go under, and then reemerge as a different company, which results in there being no responsible party to foot the bill when legitimate claims are made.
Fissuring also negatively affects the health and safety of the broader public. Weil argues that a significant contributing factor of the devastating environmental oil spill caused by the BP Deepwater Horizon accident in 2009 was the extent of BP’s use of contractors. In order to shield itself from liability by maintaining less control over its subcontractors, BP did not sufficiently oversee the safety component of the operation. Other authors have similarly noted the increase of injuries and fatalities that have accompanied the rise of contracting in, for example, coal mining, construction, and trucking, among others.
To be sure, there are some who benefit from the practice. The third consequence of “fissuring” is to shift the surplus generated by businesses away from the workforce and to investors. This helps to explain why the operative trend in the American workforce is the widening income gap between the rich and the working poor. The gap between the wealthy and the poor is at a hundred year high. For example, in 1965, the average CEO made about 20 times what the average worker made at any given company. By 2013, the ratio had grown to approximately 331 to 1. What’s fascinating is that a recent study found that not only did people worldwide grossly underestimate the ratio of CEO to worker pay, but that people across all backgrounds preferred a smaller pay gap.
Weil, who was appointed the Administrator of the Wage and Hour Division of the United States Department of Labor in May 2014, argues that since “[t]he modern employment relationship bears little resemblance to that assumed in our core workplace regulations,” laws and judicial decisions need to adapt current rules about workplaces to the realities of the modern world.
In every corner of the American workforce, the pressures to cut costs and improve the investor’s return have resulted in a worsened standard for the middle-class worker, as well as a worsened standard of health and safety. What can be done about it? Stay tuned for my next post.
Anne Richardson is the Associate Director of Public Counsel Opportunity Under Law, a project aimed at eliminating economic injustice on behalf of underrepresented workers, students, and families throughout California and nationwide. Previously she was a partner at Hadsell Stormer Richardson & Renick representing plaintiffs in all varieties of employment discrimination and civil rights matters for over twenty years. A graduate of Stanford Law School, she has been named to the Top 100 Lawyers in Southern California and has received numerous honors for her work.
In a recent article published on the popular online magazine, Truthout, CELA VOICE blogger and police misconduct lawyer, Jim DeSimone, explains why police officers need to be properly trained in order to avoid unnecessary use of force against individuals, especially those who have disabilities. In most jobs and occupations, safety training is provided to avoid injury to employees and customers. When employers intentionally fail to provide proper safety policies and training to avoid injury, or ignore obvious accommodations to an individual employee or customer, the companies or government entities can be held liable for substantial sums to compensate the injured party. Jim shows how inadequate police training has led to unnecessary death or injury and the resulting costs to the families involved as well as taxpayers.
Low-wage workers—regardless of immigration status—shoulder more than their fair share of workplace violations, including unpaid wages, unsafe working conditions, and discrimination and harassment. Immigrant low-wage workers are particularly vulnerable—working under constant fear that if they exercise basic workplace rights, they will suffer retaliation that could result in the separation of their families; loss of homes and property; or return to violence or extreme poverty in their home countries.
This fear of retaliation is based in fact. We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.
Scofflaw employers do not and will not stop violating the law if they are not held accountable for their violations to all workers. Any other type of piecemeal enforcement, or lack of enforcement, encourages employers to hire vulnerable undocumented workers, disregard labor laws as basic as the minimum wage, and then fire them when they complain – all to the economic disadvantage of employers who do follow the law.
Earlier this summer, the California Supreme Court in the Salas v. Sierra Chemical Company case agreed, deciding that companies that hire undocumented workers (knowingly or not) do not get a free pass to discriminate against them.
In that case, Mr. Salas sued his former employer, Sierra Chemical Company, for failing to bring him back to work after he injured himself and claimed workers’ compensation benefits. Mr. Salas alleged the company retaliated against him for filing his claim and discriminated against him because of his injury. But a jury never got the chance to decide whether he was right. The company claimed that because Mr. Salas was not authorized to work in the U.S. in the first place, the company shouldn’t be liable for failing to hire him back. A lower court agreed and dismissed the case (giving the company a free pass to discriminate in the bargain).
The California Supreme Court said not so fast. On the one hand, the law says that people without work authorization shouldn’t be working. But on the other hand, the law says that all workers should be protected from discrimination.
In a careful decision, the California Supreme court balanced these two concerns. It allowed Mr. Salas to take his case to a jury, finding that a company can be liable for discrimination even against undocumented employees. At the same time, the court held that undocumented employees cannot seek a court to be hired back by the company that has discriminated against them.
This decision demonstrates an understanding of the reality of the California workplace, which is increasingly made up of workers of all immigration statuses, including green card holders and naturalized U.S. citizens. It also includes 1.85 million undocumented workers, who constitute nearly 10% of the total workforce.
Against this backdrop, the Supreme Court confirmed that employers cannot violate the law—by discriminating or otherwise—and then later be immunized from liability for those violations. The court recognized that leaving undocumented workers without the protection of the law would actually give employers a strong incentive to “look the other way” when hiring and then turn around and use their immigration status to ultimately exploit them. That would be bad news for employers who actually honor their obligations to treat workers fairly and legally when it comes to hiring, pay, and non-discrimination in the workforce.
Mr. Salas will now have the chance to take his case to a jury, who will decide whether he wins or loses. But the Salas decision is a solid win for all law-abiding Californians – employees and employers alike.
Megan Beaman is a community-based attorney who roots her work in the notion that all people deserve access to justice, and who understands the larger struggles for immigrant and worker justice in California and nationwide. Beaman’s practice is founded on her years of advocacy and activism in working class and immigrant communities, and tends to reflect the predominate needs of those communities, including many cases of discrimination, harassment, unpaid wages, immigration, substandard housing, and other civil rights violations. The client communities Beaman most often represents are overwhelmingly Latino and Spanish-speaking. Beaman also works and volunteers in a number of other community capacities, including as a coordinator for the Eastern Coachella Valley Neighborhoods Action Team.
On March 25, 1911, 146 garment workers died in the Triangle Shirtwaist Factory fire in Manhattan. Today, we know our clothes are still often sewn in lethal conditions in foreign factories. Last year’s disastrous Rana Plaza collapse and a series of deadly factory fires resulted in much hand-wringing over how to improve safety in Bangladesh’s garment industry. But 103 years after the Triangle Shirtwaist fire, we still have our own dirty garment secret, much closer to home.
There are some 5,000 garment manufacturersregistered in Los Angeles County where an estimated 50,000 workers make clothes. The true numbers are almost certainly higher since many businesses do not report their employees, pay taxes, or carry insurance. Some L.A. garment factories are safe and decent workplaces where skilled employees make high-end denim, swimwear, and other products for elite brands. But in many others, where clothes are sewn for the “fast fashion” industry, the conditions are similar to those in New York sweatshops over a century ago or to those in Bangladesh today.
Bet Tzedek, the public-interest law firm where I practice, has represented hundreds of L.A. garment workers over the past decade, and their stories are sobering. Workers earn as little as two cents per completed garment. The pay, predictably, falls far below minimum wage, sometimes less than $200 for workweeks of 65 hours or more. Even in factories where breaks are permitted, piece-rate pay encourages workers to stay at their sewing machines for unbroken stretches. Musculoskeletal pain and related health problems are common. Over 100 years after workers were unable to escape the Triangle Shirtwaist Factory because the doors were locked, some of our clients have worked in factories without access to fresh water or functioning bathrooms, where bales of fabric block fire exits, and where owners lock workers in the building during overnight shifts.
Statistics bear out our clients’ testimony. According to research conducted by UCLA, over 90% of garment workers in L.A. experience overtime violations, and more than 60% are not paid minimum wage. The federal Department of Labor (DOL) found violations in 93% of the 1,500 inspections of garment factories it has conducted since 2008.
It wasn’t supposed to be this way. In January 2000, a landmark law went into effect in California with the intention of eradicating garment sweatshop labor. Before passage of the law, known as AB633, factories that often had no assets other than a few sewing machines would close, move, or reorganize under a different name in response to legal claims, leaving workers empty handed. AB633 established an administrative process in which companies that contract with sweatshops can also be liable for a share of workers’ unpaid wages.
In response, the industry reorganized. Over the past decade, thousands of middleman companies sprang into existence to funnel orders from retailers to factories. These subcontractors create a buffer between workers and the fashion houses that profit from sweatshop conditions. Not coincidentally, this is the same subcontracting structure that now prevails in the garment industry around the world, surprising brands like Walmart and Sears when their production documents are recovered from places like the rubble of Rana Plaza or the ashes of the Tazreen factory.
While we assume that U.S. garment factories are well-regulated, my clients know better: their bosses simply lock the doors to workrooms when potential inspectors are seen approaching. And paying citations is a relatively minor cost of doing business in an industry where the vast majority of workers, many of whom are Asian or Latina immigrant women, are too afraid to file a complaint.
In response to the tragedies in Bangladesh, some companies have entered agreements to inspect and monitor the factories there. Here at home, there is no such movement. When the DOL found garments allegedly destined for Forever 21 stores being sewn by workers in L.A. making less than minimum wage, Forever 21 fought the agency’s subpoena in federal court, arguing that it shouldn’t be forced to disclose sensitive information such as where it makes clothes or what systems it has in place to monitor compliance with the law.
There is little incentive for the law-abiding sector of the industry to get involved. Fashion houses paying fair wages for domestic labor are not competing for the same customers as the companies using sweatshop labor. And organizing a low-wage, immigrant workforce on an industry-wide scale requires investments of time and money that have not been forthcoming.
What else can be done? Paying workers less than minimum wage is theft, and criminal prosecutions of factory owners could cause many to rethink their business models. Aggressive investigations by government agencies could begin to unpeel the layers of subcontracting that protect the reputations of retailers and keep the sweatshop system humming.
The simplest solution would be a law clarifying that retailers are liable to workers who prove they sewed garments sold in stores, regardless of who signed the contract with the factory or how many subcontractors were involved. Such a law would swiftly clean up supply chains. But it would also likely mean fewer inexpensive clothes for shoppers and could send more garment jobs overseas if we aren’t willing to pay more.
The question is whether we want sweatshops in our backyard. It took more than 1200 dead bodies for the Bangladesh agreements to be proposed. What will it take here?
Kevin Kish is the Director of the Employment Rights Project at Bet Tzedek Legal Services in Los Angeles. He leads Bet Tzedek’s employment litigation, policy and outreach initiatives, focusing on combating illegal retaliation against low-wage workers and litigating cases involving human trafficking for forced labor.
This fear of retaliation is based in fact. We as advocates have seen it happen time and time again—and it overwhelmingly leads to workers staying silent, leaving employers without even a slap on the wrist when they break the law.
