Since the pandemic began, declines in workforce participation have proven particularly stark among women. Experts attribute this phenomenon in part to women’s disproportionate representation in service-sector businesses, which have been especially affected by the pandemic. Turmoil in the child care industry has also played a major role; around 60% of U.S. child care centers closed between February and April in response to the pandemic, laying off some 325,000 workers—around one third of the workforce. A recent survey by the National Domestic Workers’ Alliance further found that around 70% of domestic workers had lost or left work by May of this year. With fewer places to send children during work hours, working women have proven more likely than their male counterparts to leave work in order to care for kids during the pandemic. Pregnant women, as well, have reportedly been reticent to return to work for fear of infection. Moreover, since over 30% of child care centers doubtfully can remain solvent through a long-term closure period, the present decline in childcare options may become permanent. With some 4.5 million childcare slots projected to disappear in the next year, millions of working parents will likely struggle to reenter the workforce for some time to come.
In California, State Attorney General Xavier Becerra announced yesterday that he plans to seek a preliminary injunction in state court to compel Uber and Lyft to reclassify their drivers as employees. The move comes after Becerra’s office filed two suits against rideshare companies in May under California’s new employee classification law, A.B. 5, which imposes a stricter standard for independent contractor status. City Attorneys in Los Angeles and San Diego back Becerra’s move, as does San Francisco District Attorney Chesa Bousin, who sued DoorDash for similar misclassification infractions last Tuesday. Boudin’s lawsuit marks one of the first actions by her office’s new Economic Crimes Against Workers Unit, one of the first local DA divisions of its kind in the country.
As the federal Occupational Safety & Health Administration (OSHA) comes under increasing criticism for inaction during the crisis, Virginia has emerged as an unlikely state leader in issuing its own binding health and safety standards. On Wednesday, Virginia’s state health and safety board voted 9-3 to enact binding workplace safety rules. The new emergency temporary standard—drafted by the state’s Department of Labor and Industry in May at the Governor’s behest—requires employers to develop policies for symptomatic workers and mandates various social distancing and sanitation measures drawn from the CDC. Unlike current federal recommendations, state inspectors have committed to enforcing the new regulations, with fines of up to $124,000 and even forced business closures in severe cases. Virginia’s move was spurred in large part from outbreaks in the agricultural sector, as nearly 350 workers contracted the coronavirus in Shenandoah Valley meatpacking plants.
Some state courts have also begun filling the void. On Monday, workers at an Oakland-based McDonald’s franchise won a temporary state court order requiring their employer to implement tougher health and safety measures under the tort of public nuisance. The California court’s ruling was echoed yesterday in a similar public nuisance case involving Chicago-based McDonald’s workers. There, a Cook County circuit court partially granted workers’ request for a preliminary injunction mandating new coronavirus safety measures at two corporate locations. While the doctrine of public nuisance is far from new, the two cases represent the law’s first successful use in the context of workplace safety during a pandemic. A Missouri federal court threw out a similar public nuisance case last month, but workers are now asking the judge to reconsider in light of recent decisions.
While OSHA fiddles, other divisions within the Department of Labor remain busy with rulemaking. Yesterday, the Department published a proposed rule that would limit retirement managers’ discretion to invest in funds for any purposes that is not purely financial. The rule targets so-called environmental, social, and governance (ESG) funds, which constitute a small but growing share of 401K and pension investments. The Labor Department additionally released new internal rules curbing prosecutors’ pursuit of liquidated damages in wage and hour cases. The new policy limits pursuit of so-called “double damages” to cases where the government possesses clear evidence of bad faith on the part of the employer, or where the employer has a history of violations. Even then, prosecutors must receive approval from both the Solicitor of Labor and the WHD Administrator in order to move forward.
Elsewhere in Washington, the National Labor Relations Board has been similarly occupied in overturning restrictions on disciplinary action before collective bargaining. The new rule, reversing an Obama-era precedent, allows management to discipline workers during the period between a union election and the start bargaining without notifying or negotiating with union leadership. Justifying the decision, the Board claimed that the prior rule conflicted with Supreme Court precedent and ran afoul of the “general body of law governing” bargaining practices.
Next week, the minimum wage is set to increase in Nevada, Oregon, D.C., and Illinois, as well as in localities such as Chicago, Minneapolis, Los Angeles, and San Francisco. While some states such as Virginia have balked at raising the minimum wage in the midst of the economic downturn, David Cooper of the Economic Policy Institute (EPI) argues that an increase would actually boost economic growth, since a bump in low-income workers’ wages would counteract the current slump in demand animating the recession. A small portion of the increase may inadvertently be diverted from workers’ pocketbooks to the government, however; according to D.C.’s Office of Revenue Analysis, the District’s upcoming minimum wage increase will boost wages by an average of $3,097 annually, but will also reduce the average employee’s Earned Income Tax Credit (EITC) award by about $322. Still, around 60,000 workers within the District are expected to benefit.