In April, a pork plant worker and a labor group filed a lawsuit against the worker’s employer, Smithfield Foods, for failing to keep workers, and the Missouri town where the plant was based, safe.
The complaint alleged Smithfield was a “public nuisance” and asked not for money, but for safer working conditions. Although the lawsuit was eventually thrown out, it got results: Smithfield put up barriers between workers and allowed workers more opportunities to wash their hands.
A new report from Harvard Law School and the National Employment Law Project suggests that cities and states could use this tactic, and others, to pressure employers to keep workers safe on the job — a pressing need as the economy slowly reopens despite the still-present threat of infection.
Many workers deemed essential during the pandemic are at a loss: They say their employers aren’t keeping them safe on the job, but workers don’t know where to turn for protection.
The Occupational Safety and Health Administration (OSHA), the federal agency in charge of protecting workers, has largely left workplace safety up to employers. Meanwhile, despite instituting workplace safety guidelines of his own, Gov. Tom Wolf has thrown up his hands, saying, “We can only do so much with oversight.” Mayor Jim Kenney, too, has said that the city can’t be picking up the slack for the federal government.
“This is a moment for government to use whatever powers they can to protect working people,” said Terri Gerstein, a lawyer who runs a project on local enforcement at the Harvard Law School Labor and Worklife Program and one of the authors of the report.
If business and government leaders are worried about the economic impact, the most important thing to do is make sure workers are healthy and safe, she said, as continued outbreaks will just prolong the current economic standstill.
The report comes at a time when unions and labor groups have called for Kenney to institute local protections for essential workers. Kenney has made progressive labor laws a hallmark of his administration. And worker safety during the pandemic is an issue that’s especially urgent in Philadelphia, the poorest big city in the United States, where black people are dying from the virus at a higher rate than white people, according to city data. Most essential workers earn low wages, and black and Hispanic workers are less likely to be able to work from home.
Cities and states, the report says, can legally enforce guidelines from the Centers for Disease Control and Prevention as workplace safety law — a best practice, according to former OSHA officials — without fear of preemption concerns because, so far, OSHA has not issued any workplace standards about the coronavirus.
Preemption refers to the legal idea that laws passed by lower authorities can’t interfere with those passed by higher ones. It’s the reason Philadelphia can’t raise its minimum wage — because it would come up against a state law barring it from doing so.
Some other measures Philadelphia and Pennsylvania could take to protect workers, as per the report, include:
Being public about any enforcement action taken against employers not following CDC guidelines. A 2018 Duke University report found that when OSHA published news releases about employers found to have violated the law, there were fewer violations at similar employers in a five-kilometer radius. Philadelphia has already done this with employers that break city labor laws.
Developing a policy that protects workers from being retaliated against if they speak up about unsafe working conditions.
Investigating workplace complaints through the attorney general or district attorney’s office, in tandem with local health departments, as the Illinois Attorney General’s Office has done. As of the end of April, the Illinois attorney general had not brought any lawsuits against employers but said the threat of a lawsuit was enough to change working conditions.
As of April 21, OSHA had received 2,400 coronavirus-related complaints and had not issued a single citation. A Labor Department spokesperson said the agency had six months to complete an investigation.
In April, Wolf issued an order requiring essential businesses to keep their workers safe by requiring masks and instituting social distancing, but enforcement has been light. The Pennsylvania State Police have issued 25 warnings and no citations, which carry a maximum $300 fine.
Philadelphia has issued its own set of safety guidelines for essential businesses and said it was doing complaint-based enforcement, taking complaints through the city’s 311 nonemergency line. The city has not issued any fines to businesses violating the guidelines.
Also, mayoral spokesperson Lauren Cox said, “The city has not ruled out additional protocols being put in place as part of the reopening, but that plan has not yet been finalized.”