Return to Work – Return to Litigation?

Robert is a partner with AALRR and a member of the firm’s Return to Work Task Force. He is a co-author of the AALRR Return to Work Tool Kit

Many of the waking hours of executives in the modes and their counsel have been filled with navigating the emergency rules and regulations that have been issued at the federal and state level arising from the Covid-19 Pandemic.

The new legal framework for remote work, economic benefits and relief, social distancing, testing and matters of testing and personal protective hygiene, returning to work poses challenges.  However, returning to normalcy brings its own irony for employers - a return to issues of traditional labor law, albeit in new ways. That is our topic here.

An overarching starting point is that a federal national emergency has been declared in the United States. Such a declaration permits invocation of the Defense Procurement/Stafford Act through wartime proclamation for the first time since World War II. (https://www.fema.gov/media-library/assets/documents/15271)

The absence of conventional rulemaking or even legislative consideration creates special challenges that drill down to the most basic aspects of Covid-19 compliance, notably the interdiction of pandemic goods between the states and into the U.S. and, as a related matter, the role of the Food and Drug Administration in the labeling of pandemic related products for proper identification for shipment as well as sale. The author, upon request, will make available copies of the latest FDA guidances and exemplars explaining how interdictions are functioning in practice. But, as a labor column, my initial focus is how these subjects are becoming part of the labor environment, especially as labor unions and plaintiff counsel begin to identify the need for masking and protective clothing, testing as rallying tools in organizing and energizing workers.

As a related subject, we will anticipate the complicated interplay between a new populace of those effectively disabled by the pandemic experience.

I.          questions part of the new environment:

What if an employee declines to return to work?

What if the reason is economic, i.e. their net income augmented by supplemental benefits is presently higher than earned pay?

What if there is uncertainty about protected leave?                                                                  

What if the employee is generally nervous about return to work?

What if the employee is articulating a potential workers compensation stress claim and they are currently working remotely?

What if the employee believes that the employer has not adequately implemented required or standard of care social distancing or other workplace safety protocols?

What if the employer has not provided adequate notices of its policies or modified its illness and injury protection plan?

What if site access or union or concerted action issues arise in the new workplace?

Is there room for picketing or hand billing in a Zoom meeting? Claims arising from return to work when only some workers are asked to return?

What is the impact of union neutrality provisions in federal relief act packages?

Claims related to return to work screening whether temperature or other tools?

Can antigen or antibody screening be reliably used? Or legally required?

Anticipating claims arising from concerns about safely interfacing with customers, the vendors or the public?

Uniformity and quality of PPE access and reimbursement issues?

Compensation issues from following protocols, including the cost of PPE, cleaning; pre and post liminary time and testing?

What if the employee is in a medically vulnerable status?

What are special obligations for the implementation of the ADA interactive process in return to work, especially for the medically vulnerable?

What are current options for providing a safe workplace beyond social distancing?

What is the role of retaliatory and constructive termination causes of action in return to work?

What is the role of special emergency rules that create presumptions or rebuttable presumptions that invoke workers compensation insurance coverage?

What about the stigma of infected workers?

How will an employer respond, as some have, to employee petitions not to work with such a person?

Consider re-entry PTSD as a stress-based factor in workplace violence?

And, pragmatically, which employment practices liability policies have language that alters expectations for coverage and defense of claims?

Consider all these questions as touchpoints when a union or employees raise them, rather than questions already addressed in company policy, or in the civil courts and thus involve monetary claims uniquely suited to class testament.   

II.         UNION AND UNION ORGANIZING ISSUES ARE ALREADY HERE

Consider the following, from a press release issued by the Teamsters:

(WASHINGTON) -- Since the start of the COVID-19 pandemic, there have been more than 100 walkouts and strikes, where workers have demanded appropriate safety protections. Today, on International Workers’ Day, the International Brotherhood of Teamsters has launched Solidarity is Essential, a comprehensive online resource guide for non-union workers to take action and fight for safer working conditions for themselves and their co-workers.

The site offers “Know Your Rights” information for non-union workers, emphasizes the power of organizing, and weaves in elements of the fighting history of the Teamsters. During this time of crisis, the Teamsters reiterate its commitment to standing with all workers, not just union members.

“As Teamsters, we stand shoulder to shoulder with all workers fighting for safety, dignity and respect on the job -- and this can only be won through solidarity,” said James P. Hoffa, General President of the International Brotherhood of Teamsters. “Now, more than ever, workers need to speak up and take action to protect themselves, their families and their communities.”

The union lays out a set of basic protections that should be guaranteed to every worker, including: the right to be kept safe from illness, injury or death at work; the PPE and other equipment they need to do their job safely; being given adequate time to do their work safely; paid time off; and the right to speak up about their concerns at work without fear of retaliation.

Workers have started to take action around safety concerns at a number of non-union companies all over the country as the crisis continues to worsen. For example, workers at an Amazon facility in Minnesota, who participated in a walkout, fought and won the reinstatement of one of their coworkers. At a Perdue Farms facility in Georgia, workers walked off the job in late March, noting that they did not feel safe at work, and the company had not done enough to properly protect them.

The new website also includes resources for workers to take action, including steps to build a network, understand workers’ rights under federal labor law, come up with demands, and take actions like blowing the whistle or, if necessary, going on strike. It also includes health and safety tips for workers trying to stay safe on the job.

https://teamster.org/news/2020/05/teamsters-launch-website-non-union-workers-during-covid-19-crisis

Those who have followed the independent contractor controversies in California and Massachusetts are well aware that the numerous wage and hour and class action cases have been closely coordinated between transportation unions (and their counsel) identifying the needs and grievances of independent drivers and translating them into two-pronged labor and class and individual wage and hour claims. (Contact the author for copies of briefs in some of the most recent cases.)

Another union framed its approached this way:

Q. What is Protected Concerted Activity?
•Under the National Labor Relations Act, most workers have the right to act together to address work-related issues in many ways. Protected Concerted Activities include: talking with one or more co-workers about working conditions, circulating a petition asking for health and safety provisions, participating in a concerted refusal to work in unsafe conditions, openly calling for paid sick leave, and joining with co-workers to talk directly to your employer or to a government agency about problems in your workplace.

Q. Does the NLRA (National Labor Relations Act) protect workers at my workplace?
•Most likely, yes. Most frontline, non-management private sector employees are covered by the National Labor Relations Act with some important exceptions. Excluded from coverage under the Act are public-sector employees (employees of state, federal and local governments), agricultural and domestic workers, independent contractors, workers employed by a parent or spouse, and employees of airlines and rail carriers.

Q. What is the National Labor Relations Board?
•The National Labor Relations Board (NLRB) is an independent federal agency that protects employees, employers and unions from unfair labor practices and protects the right of private sector employees to join together, with or without a union, to improve wages, benefits and working conditions. The NLRB conducts hundreds of workplace elections and investigates thousands of unfair labor practice charges each year. The NLRB enforces the National Labor Relations Act.

Q. Can I act alone and still be protected?
•Concerted activity is when two or more employees take action for their mutual aid or protection regarding terms and conditions of employment. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action.

Q. What are examples of Protected Concerted Activity?
•Two or more employees discussing work-related issues beyond pay, such as safety concerns with each other is protected concerted activity. An employee speaking to an employer on behalf of one or more co-workers about improving Coronavirus protections or other workplace conditions is protected concerted activity.

Q. Can my co-workers and I get in trouble for speaking out about our safety at work?
•Your employer cannot lawfully discharge, discipline, or threaten you for, or coercively question you about this “protected concerted activity”. A single employee may also engage in protected concerted activity if he or she is acting on the authority of other employees, bringing group complaints to the employer’s attention, trying to induce group action, or seeking to prepare for group action. However, you can lose protection by saying or doing something egregiously offensive or knowingly and maliciously false, or by publicly disparaging your employer’s products or services without relating your complaints to any labor controversy.

Q. My employer refuses to close down even though a coworker tested positive for COVID-19. We don't feel safe. Can we walk out if the company isn't listening to us?
•Under some circumstances, yes! NLRA covered workers have the legally protected right to walk out in protest of critically unsafe working conditions. In Detroit, bus drivers refused to drive until the buses were properly cleaned. Their refusal of working in unsafe conditions was protected concerted activity. They are now back to work.

In an example prior to the Coronavirus, a group of employees in Omaha, NE walked off the production line to protest the speed of the line and other working conditions, and thereafter met with the plant manager. An NLRB administrative law judge found that the Employer had unlawfully discharged the employees in retaliation for engaging in concerted protected activity and ordered the Employer to reinstate the employees with full back pay and benefits.

Q. Can we demand that our employer expand paid time off during this crisis?
•Yes. If the demand is done as a group (two or more people), this is protected activity too.

Q. Am I protected if I’m already in a union?
•If you already have a union, you may have other rights and obligations under your contract. Contact your local union leadership to discuss these issues.

Q. Do I have to be in a union to be protected by the NLRA?
•No. Employees at union and non-union workplaces have the right to help each other by sharing information, signing petitions, and seeking to improve wages and working conditions in a variety of ways. For more information on this aspect of the law, including a description of recent cases, see the NLRB Protected Concerted Activity page.

The National Labor Relations Act gives most private-sector front-line employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away.

Q. I believe that my rights have been violated. How do I file a charge with the NLRB?
•Charges must be filed in a Regional Office, usually with the help of an Information Officer, within six months of the occurrence. The Regional Office will investigate the charge and, if found meritorious, will issue a complaint.  For forms and more information, NLRB Investigate Charges page.

Q. I want to form a union with my co-workers to address COVID-19 and other workplace issues. Is that also protected?
•Yes. Under the National Labor Relations Act, workers have the right to form a union without retaliation. Forming a union is an effective way to collectively address workplace issues from COVID safety to wages, benefits and working conditions. If you want help forming a union, fill out this form on-line and a CWA organizer will contact you about next steps.

Q. Who can we reach out to if we need advice asap?
•If you feel like your health is not in immediate danger, please use this form to reach out to a CWA organizer for advice. We will do our best to get back to you ASAP. If your and your co-workers' health is in imminent danger, you should take immediate action to protect yourself.

Common to both labor and litigation models are the fact that class action issues and labor law protected concerted activity are functionally related.

In these contexts, few entry points are simpler and riskier than a demand for masks and a failure to provide or pay for them.

One of the most notable cases is Mountaire Farms  https://www.nlrb.gov/case/05-CA-260343. (5/13/2020)  (05-CA-260343).

In that case, the union, United Food and Commercial Workers Local 27 filed a charge with the NLRB required workers in Selbyville, Del., to sit through persuasion meetings ahead of a vote next month to disband the union, but that there were no social distancing requirements in place during the sessions. In a letter to Mountaire Farms (copy available upon request), the union accused the company of docking employees’ wages for masks, gloves, aprons, and other protective equipment. The union also alleged that poultry-line employees are working too close together. The persuasion meetings at the poultry plant were related to a de-certification election set for next month.

The NLRB Office of the General Counsel has also begun to issue guidance in connection with bargaining requirements.

https://apps.nlrb.gov/link/document.aspx/09031d4583059a69

The AFL-CIO unions have also issued comprehensive guidances.

https://aflcio.org/covid-19/take-action

The AFL-CIO has also filed an Emergency Petition (copy available upon request) with the District of Columbia Court of Appels that requests as follows:

Under section 6(c) of the Occupational Safety & Health Act of 1970 (“the OSH Act”), OSHA “shall provide . . . for an emergency temporary standard to take immediate effect upon publication in the Federal Register if [it] determines (A) that employees are exposed to grave danger from exposure to substances or agents determined to be toxic or physically harmful or from new hazards, and (B) that such emergency standard is necessary to protect employees from such danger.” 29U.S.C. § 655(c)(1) (emphasis added).

The Writ, which demands issuance of rulemaking under the Court’s authority, argues:

The five general standards and the general duty clause are insufficient to address the grave hazard and protect workers to the greatest extent possible as required by the OSH Act. [B]ecause many states and localities have already begun the process of allowing businesses within their jurisdictions to reopen while others are coming under enormous pressure to do so—a reopening process that will expose millions more workers to grave danger to their life and health if OSHA fails to issue an ETS.”

Finally, another expected friction point is who has jurisdictional responsibility for Covid safe port environments. This, at least, is an example of a situation where the ILWU sought not to assume responsibility for the work.

Bay Area representatives of the International Longshore & Warehouse Union, Locals 10, 34, 75 and 91, are asking SSA Marine to thoroughly clean equipment at its Oakland terminal between shifts. All other container terminals now employ a separate staff for this except for the SSA, said Keith Shanklin, spokesman for Local 34.

SSA Marine, which leases a terminal from the Port of Oakland, is the employer of the longshoremen.

 “They’re trying to have us come in and clean the equipment. That’s not our job, that’s their job,” Shanklin said. He said under current contract rules, employers are required to provide safe working conditions for employees. This includes efforts to curb the spread of the coronavirus by making sure thorough sanitation is enforced, he said.

https://www.sfchronicle.com/business/article/Coronavirus-Port-of-Oakland-longshoremen-15147186.php

See also https://www.joc.com/port-news/us-ports/us-longshore-union-hiring-halls-adjust-covid-19-reality_20200326.html

III.        WHERE NEXT?

The stimulus enactments contained specific provisos on protection of collective bargaining disruption and neutrality in the face of union organizing.  Such provisions tied to government funding were enacted in California in years past and were determined to have violated labor and free speech rights by the United States Supreme in Chamber of Commerce v. Brown, 554 U.S. 60, 128 S.Ct. 2408 (2008).  To date no challenge or enforcement action has emerged with reference to these provisions.  While such issues could arise in audit by Inspectors General as to monies received, such audit focus is precisely the flaw identified by the Court in Brown.

At the state level, provisions for third party (including union labor management fund) audit rights have begun to appear.

Finally, two states have created a new presumptive class of protected individuals under the workers compensations system. In California, Governor Newsom issued an anticipated Executive Order N-62-20 providing that any employee who performed work outside the employee’s residence on or after March 19, 2020 who is diagnosed with a test-confirmed COVID-19 illness will be presumptively eligible for full workers’ compensation benefits. That presumption is rebuttable in California.  In Illinois, a non-rebuttable presumption is currently under legal challenge.

More to come.

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