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Terri Gerstein

  • How do gig workers fit into the rest of today’s labor force?

    September 12, 2022

    Marketplace – So-called gig workers are everywhere in the economy — Uber drivers, food delivery people, and others. In today’s workforce, they’re basically considered an…

  • Arbitration Use by Employers Up as High Court Affirms Validity

    August 29, 2022

    States’ attempts to ensure employees can take their workplace disputes to court are seeing their efforts chipped away by the US Supreme Court. Forty-three states…

  • Multnomah County district attorney moves to prosecute employers who intentionally cheat workers out of pay

    May 2, 2022

    The Multnomah County District Attorney’s Office could begin bringing criminal charges against employers who repeatedly or intentionally deprive workers of pay as early as this summer under a new agreement with the Oregon Bureau of Labor and Industries. ... Terri Gerstein, director of the state and local enforcement project at the Harvard Law School’s Labor and Worklife Program, said criminal prosecution is an important instrument for government entities to use because agencies tasked with civil enforcement of wage laws can be hamstrung by limited resources. And, she said, certain cases warrant not only civil but criminal penalties. Gerstein, the former labor bureau chief in the New York State Attorney General’s Office, said she worked on a case in 2015 where a Papa John’s franchise owner in New York failed to pay overtime to workers. When he learned that the U.S. Department of Labor had opened a civil investigation into his company, he devised a scheme to create fictitious names of employees to continue to avoid paying overtime, Gerstein said. Ultimately, the attorney general’s office sought criminal charges and the franchise owner was sentenced to 60 days in jail and ordered to pay $230,000 in restitution on top of $280,000 in civil damages and penalties.

  • Late Disclosures Concealed The Extent Of Amazon’s Anti-Union Campaign

    April 25, 2022

    While Amazon workers in Alabama and New York were trying to unionize their warehouses last year, the tech giant hired a large cast of anti-union consultants to undermine the organizing campaigns. Known as “persuaders,” these consultants led meetings in the warehouses and pulled workers aside for one-on-one conversations, all with the aim of turning workers against the idea of a union. ... Terri Gerstein, a senior fellow at the Economic Policy Institute think tank, recently argued in The American Prospect that employers like Amazon should have to reveal their persuaders sooner. She noted the murkiness surrounding the Rayla Group: The firm’s address appears to be a post office box at a UPS Store in Troy, Michigan. “​​When well-paid proxies are deployed to convince people not to unionize, those workers have a right to know the specifics,” Gerstein wrote.

  • Covid mask mandates for travel have been lifted. Where do we go from here?

    April 20, 2022

    An op-ed by Terri Gerstein: Last month, I boarded an airplane in New York to visit my mom and stepdad in Florida. We celebrated his 86th birthday as best we could; both have limitations common for people their age. I timed my visit carefully, traveling while Covid rates were down. I tested at home before departing. I was happy to strap on an N95 mask for the flight. (I’d gladly wear a neon hazmat suit and ski goggles to keep my family safe.) We spent a few lovely days outside in the sun, each with our signature drink: a seltzer for me, Diet Coke for my stepdad and, for my mom, “a decaf iced coffee with a lotta cream and two Splendas.” Every moment felt like borrowed time.

  • Amazon engaged anti-union consultants at a weekly rate of up to $20,000 each to work in its Staten Island warehouses, documents suggest

    April 20, 2022

    Amazon engaged anti-union consultants at a weekly rate of up to $20,000 each to work at its warehouses in Staten Island, New York, documents filed with the US Department of Labor suggest. The consultants were "engaged to represent the interests of Amazon relative to labor matters" at the company's  Staten Island facilities, according to an October 2021 letter from Amazon to Lev Labor, a consultancy that describes itself as specializing in "collective bargaining, union organizing campaigns and labor relations strategy and development." ... The publicly-available DOL documents were highlighted on Twitter by Terri Gerstein, a workers' rights specialist and director of the State and Local Enforcement Project at Harvard Law School. Gerstein said the documents probably provided a snapshot of the kind of money Amazon spends on anti-union consultants, as not all consultancy firms file forms with the DOL.

  • What Amazon and Starbucks Don’t Let Us Know

    April 14, 2022

    An article by Terri Gerstein: In the past two weeks, Amazon workers at a Staten Island warehouse and Starbucks baristas in four New York cities and beyond all voted to unionize. While these victories are remarkable and inspiring, there’s still a David-and-Goliath battle going on—and it’s still much too difficult to understand the full forces arrayed against these workers and those at other locations nationwide. When confronted by workers seeking to unionize, the vast majority of employers hire professional consultants—“persuaders”—to thwart workers’ efforts. These persuaders meet one-on-one with workers, train managers, and hold mandatory anti-union “captive audience” meetings that employees must attend. (Last Thursday, the National Labor Relations Board’s general counsel issued a memo arguing that these meetings violate the law. Until this is litigated, such meetings will likely continue apace, unfortunately.)

  • How Washington state brokered a truce between Uber and its drivers

    April 6, 2022

    On March 31, Washington became the first state in the US to guarantee rideshare drivers receive a minimum wage. The bill, signed into law by governor Jay Inslee, ensures all drivers in the state will earn at least $1.17 per mile and $0.34 per minute, including a minimum pay of $3.00 per trip with benefits such as paid sick leave and workers’ compensation insurance. The new law takes effect in January 2023. ... Terri Gerstein,  director of the State and Local Enforcement Project at Harvard Law’s Labor and Worklife Program, is concerned about the precedent that this could set for other state-level governments to thwart local attempts to enact labor protections, especially in the gig economy. “Seattle has been a leader nationally in regulating gig worker companies. And now, instead of celebrating the leadership and innovation of Seattle, the state is tamping down on them,” says Gerstein. “Maybe it will be limited to this one industry, but I think people are fooling themselves if they think other industries won’t come to state legislatures with similar proposals to preempt local regulatory power.”

  • How gig workers in Canada are fighting for employee rights

    March 9, 2022

    When the pandemic hit, many people hunkered down at home, hoping to stay put and ride out the storm until it passed. For others, as the scourge of the coronavirus was spreading fast and seeking new host organisms anywhere it could find them, those early days in the eye of the storm, so to speak, were an anxious race against time. ... As Terri Gerstein, a workers rights lawyer at the Harvard Law School’s Labor and Worklife Program, argued in The American Prospect, the bill “would also exempt Uber and Lyft from many important laws that virtually every other employer in the state must follow by flat out enshrining the misclassification of these workers as independent contractors rather than employees. The Tacoma diner, the Seattle coffee shop, and the supermarket in Spokane all are legally required to provide a safe workplace, pay employees for all hours worked, and pay taxes to support the state’s unemployment compensation system.”

  • Washington State Advances Landmark Deal on Gig Drivers’ Job Status

    March 7, 2022

    The Washington State Senate on Friday passed a bill granting gig drivers certain benefits and protections while preventing them from being classified as employees — a longstanding priority of ride-hailing companies like Uber and Lyft. ... Worker advocates worried that other states would try to replicate the legislation. “I hope Governor Inslee seeks additional analysis of its potential impact,” said Terri Gerstein, a workers rights lawyer at Harvard Law School’s Labor and Worklife Program. “I would urge other states not to use this bill or cursory public process as a model.”

  • WA bill would give raises to Uber/Lyft drivers. Some in labor are concerned.

    March 4, 2022

    When Don Creery punches in as a driver for Uber, he’s loath to cross the bridge from Seattle to Bellevue, because when he does, the minimum pay he’s guaranteed disappears. “If I get a ride request and it appears it’s going to the Eastside, I don’t take it,” he said.  ... “This is major legislation that would set a lot of precedence in the state that could have real unintended consequences, and it needs to be really carefully considered,” said Terri Gerstein, director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program.

  • Is Washington State About to Deprive Its Gig Drivers of Basic Rights?

    March 3, 2022

    An op-ed by Terri Gerstein: When Proposition 22, the (sadly, successful) initiative to strip gig workers of rights, was on the California ballot in 2020, there was immense news coverage and analysis. As gig companies like Uber and Lyft prepare similar attempts across the country, with the goal of ensuring their workers remain non-employees, a similarly high-profile fight is brewing in Massachusetts, where worker, environmental, and racial justice advocates have formed a coalition to gear up for a major battle as a similar measure comes before voters in November.

  • After five years of #MeToo movement, a modest win for women’s workplace rights

    February 17, 2022

    A bipartisan group of lawmakers on Feb. 10 enacted one of the most momentous workplace rights reforms in more than a decade, and Congress’ most significant legislation against sexual harassment and abuse since the #MeToo women’s movement began five years ago. ... Terri Gerstein, a fellow at the Harvard Law School Labor and Worklife Program, told me the legislation is an “important first step,” and a major accomplishment, especially given the stark partisan divide in Congress and businesses’ strong interest in keeping disputes out of court. “I would not understate what a real accomplishment this is, and how meaningful it is to women who have faced harassment and assault,” Gerstein said. “It demonstrates a bipartisan recognition that forced arbitration is unfair to workers and that the secrecy is a problem.”

  • Forced arbitration in workplace sexual assault cases is ending. But what about other disputes?

    February 14, 2022

    An op-ed written by Terri Gerstein: Finally, some good news came from Congress. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act passed in the Senate on Thursday and heads to President Joe Biden to be signed. The bill prevents employers from forcing their workers to bring sexual harassment or assault cases before secretive arbitrators paid by the boss, instead of before judges in open court.

  • Data Provided by Amazon Workers Offers Rare Glimpse into COVID Cases in California Warehouses

    February 14, 2022

    After the new year, when an Amazon warehouse worker showed up to the sprawling facility where he works in Rialto, Calif., he noticed a lot of colleagues seemed to be missing. Stations were empty, he said, and workers were constantly moved around to fill in for those gone. It seemed like everyone was working mandatory overtime. ... “It’s a very serious matter when you have a state attorney general suing a major international corporation for violating a law that is so clearly important and relevant to what is happening to workers on the ground right now,” said Terri Gerstein, fellow at both Harvard Law School’s Labor and Worklife Program and the Economic Policy Institute. “This isn’t a mom-and-pop. This is one of the largest and most powerful companies in the world.”

  • Mills administration cracking down on employer wage and hour violations

    February 7, 2022

    Since Gov. Janet Mills took office three years ago, the Maine Department of Labor has escalated its pursuit of illegal workplace practices including wage theft, child labor and false record keeping, a significant departure from past practices at the agency. ... "You leverage limited resources in ways that are going to have the greatest and longest-lasting impact leading toward employer compliance," [Terri] Gerstein said. "You could have a huge staff and collect penalties year after year from the same employers, but you are not moving the dial on compliance if they are still violating the law. You need both strategy and staffing."

  • Amazon and the Girl Scouts Are Unlikely — and Disturbing — New Partners

    February 4, 2022

    An op-ed by Terri Gerstein: Amazon and the Girl Scouts of America recently announced a partnership to “engage girls in STEM.” As part of the program, Amazon fulfillment centers in more than 20 U.S. cities will host “Girl Scout Amazon Tours.” There’s even a special cobranded Amazon-Girl Scouts patch participants will earn.

  • How Governments Can Boost Workplace Safety After Supreme Court Halts Vaccine Mandate

    January 24, 2022

    An op-ed by Terri Gerstein: Earlier this month, in a decision that surprised no one who was paying attention, the U.S. Supreme Court’s conservative majority blocked an emergency workplace safety rule by the Occupational Safety and Health Administration requiring large employers to mandate either vaccines or indoor masks and weekly tests for employees.

  • Starbucks: Purveyor of Fresh Coffee and Stale Union-Busting

    November 23, 2021

    Op-ed by Terri Gerstein, Director, State and Local Enforcement Project: One of the most interesting union campaigns in recent years is happening right now in Buffalo, New York. Workers in three Starbucks outlets started a union organizing effort over their concerns about seniority pay, scheduling, staffing levels, and safety and health during COVID (plus, at one store an infestation of bees was left festering for months). Earlier this month, the National Labor Relations Board mailed ballots to the workers in these stores, who will have four weeks to vote on whether to unionize with Workers United, an affiliate of the Service Employees International Union. If they do, these stores would be the first unionized locations among the ubiquitous chain’s thousands of U.S. locations.

  • How Corporations Keep Their Own Workers in Debt

    October 21, 2021

    An op-ed by Terri Gerstein: How much should someone be paid for cleaning a 1,700 square-foot bank? A janitor in Washington State was paid an average of $6.59 per job doing this work — not $6.59 per hour, but $6.59 for the entire cleaning job. According to a lawsuit filed earlier this year by the state’s attorney general, the janitor and other immigrant workers with limited English skills were lured into this grueling, grossly underpaid work through a scheme common in the industry: A janitorial company sold the workers franchises that were pretty much bound to fail. In these situations, the price is steep, the cleaning jobs are inherently unprofitable and the franchise purchases are financed through loans from the company, to be paid off with deductions from pay. In the end, workers toil for next to nothing, lack the autonomy of a true independent business and face what is essentially a crippling payday loan keeping them indentured to their employer.

  • A Growing Trend: Treating Wage Theft As A Criminal Offense

    September 24, 2021

    Prosecutors and states are increasingly trying to tackle wage theft through criminal action against employers, seeing it as a necessary complement to civil enforcement and an instrument of public safety, experts say. ... The need for criminal prosecution of wage theft and other employment law violations has become all the more imperative, said Terri Gerstein, the director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program. "I think that the situation of working people in our country has become dire," she said. "One of the benefits of criminal prosecution is it just sort of changes the calculus … there's a whole other set of consequences other than just, 'OK, I'm going to pay money and keep on violating the law.'"

  • Unions aren’t against vaccines. They just want a say.

    September 17, 2021

    An op-ed by Terri Gerstein, fellow and director of the State and Local Enforcement Project at the Harvard Labor and Worklife Program: Earlier this month, Tyson Foods and the United Food and Commercial Workers announced that Tyson meatpacking workers will, for the first time, be entitled to paid sick leave, as long as they’re vaccinated. They’ll also get paid time off for vaccinations and for any side effects. The deal resulted from a negotiation between the multinational and the UFCW in relation to the company’s new vaccination mandate. Given that lack of paid sick days is an impediment to vaccination, the deal is a great example of how union negotiation over vaccine mandates can lead to better outcomes for workers and for public health.

  • Bad bosses: US prosecutors crack down on labour violations

    May 19, 2021

    State and local prosecutors across the United States are increasingly bringing criminal charges against employers who violate their workers’ rights by stealing wages or providing unsafe work environments, says a new report from the Economic Policy Institute (EPI), a progressive, Washington DC-based think-tank. “This is happening now in large part because worker organisations – like unions and advocacy groups – have pushed for it in many instances. This is happening now also because we have in our country a growing understanding of how extreme workplace violations have become,” Terri Gerstein, a senior fellow at EPI and the report’s author, told Al Jazeera. Prosecutors are also reconsidering their roles and thinking of ways they could use their prosecutorial power to pursue economic and social justice by holding bosses who violate the law to account, Gerstein added. Gerstein’s paper is the second in EPI’s New Enforcers series, which focuses on players at the state and local levels working to uphold and promote employee rights. The firstreport released last year, also authored by Gerstein, argued for increased state and local enforcement of workers’ rights.

  • Big Law Builds Up State AG Expertise Amid Enforcement Boost

    May 12, 2021

    Top law firms are building out practice groups focused on state attorneys general, whose aggressive moves on everything from workers’ rights to Big Tech have clients looking for lawyers with a deep understanding of the process. The latest entrant is DLA Piper, which unveiled its new practice Tuesday, led by veterans of the New York and California state attorneys general offices. Other big firms with similar practices include Jones Day, O’Melveny + Myers LLP, and Crowell + Moring LLP. Companies face scrutiny from state attorneys general on all sides...Harvard Law School’s State and Local Enforcement Project director Terri Gerstein, former head of the Labor Bureau in the New York attorney general’s office, cautioned private practice lawyers against relying too heavily on relationships formed during their past work in state offices. “As with any kind of a government advocacy work, it’s always helpful to have someone who understands how that office works, who has relationships,” she said. “That doesn’t substitute for substantive knowledge of that area of law or just being a courteous adversary who takes the investigation extremely seriously.”

  • How COVID experiences will reshape the workplace

    February 10, 2021

    Now that COVID-19 vaccines are finally here, employers have begun looking ahead to an eventual full return to the workplace in the coming months. But even though their offices may look exactly as they did last spring when most white-collar organizations shifted to remote operations, they will find that things will be very different, say Harvard Business School (HBS) faculty who study the work world. The pandemic has sped up macro trends in consumer behavior, business management, and hiring. That, along with insights gained by months of adjustments to work roles, schedules, routines, and priorities, have prompted employers and employees to reconsider many default assumptions about what they do along with how and why they do it...One year into the pandemic, the Occupational Safety and Health Administration (OSHA), the federal regulatory agency that oversees private sector workplace safety in all 50 states, had not established national COVID safety standards under President Trump, leaving individual companies and industries, like meatpacking, to set their own protocols and policies. “It’s bananas to entrust our public health decisions to disaggregated, atomized employers making their own decisions about what’s good enough and what’s not,” said Terri Ellen Gerstein, director of the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program. “With OSHA abdicating its responsibility, that’s been happening in too many places.”

  • Progressive Policing Requires a Well-Funded War on Corporate Crime

    February 2, 2021

    Despite “defund the police” slogans, progressives actually have a robust policing agenda. We want the EPA to crack down on polluters who kill an estimated 100,000 Americans each year. We want to prevent financial firms from repeating the mass fraud that crashed the economy in 2008. We want to stop employers from killing their employees through unsafe work conditions. We want wealthy individuals and corporations prosecuted for the estimated half-trillion dollars in tax evasion each year. And we want victims of wage theft to get justice for the estimated $50 billion in wages stolen from them by employers annually...The Biden administration, states, and local governments need to develop a more comprehensive message and strategy on combating corporate crime—and need to ramp up indictments and prosecutions, which would make it easier for the public to realize that these are criminal acts. Most people reflexively see corporate crime as a civil, not a criminal, matter. It’s precisely that which needs to change. “Everyone understands very clearly that if an employee embezzles from an employer, that is criminal,” argues Terri Gerstein at Harvard Law’s Labor and Worklife Program. “When the employer doesn’t pay their workers, that is a crime as well.”

  • Gig firms expected to push California law to other states

    November 24, 2020

    App-based rideshare and delivery companies will likely seek to build on a recent California ballot victory to limit potential employment-related liabilities they may face in other states, employment law experts say. Proposition 22, a ballot initiative that was passed by California voters earlier this month following heavy promotion by companies such as Uber Technologies Inc., Lyft Inc. and DoorDash Inc., addresses the realities of today’s workforce and will benefit employers and workers, its proponents say. Opponents, however, have criticized the ballot initiative as being a loss for workers. The proposition carves out app-based drivers from benefits employers are required to provide, including sick leave, workers compensation coverage and unemployment...Terri Gerstein, the director of the Cambridge, Massachusetts-based State and Local Enforcement Project at Harvard Law School’s Labor and Worklife program, which works with government agencies and officials engaged in enforcing workplace laws, said the proposition misleadingly says workers will receive 120% of minimum wage, but “excludes an awful lot of the work time that drivers would be doing,” including time spent cruising before they are summoned to pick up a rider, or providing maintenance on their cars, for which an employee would be paid.

  • Inside Scalia’s Pro-Industry Revamp of Labor Agency Enforcement

    November 2, 2020

    In 2018, Wells Fargo & Co. sent its high-powered attorney, Eugene Scalia, then a partner at corporate law firm Gibson, Dunn + Crutcher, on a mission to San Francisco to make a U.S. Labor Department investigation go away...Two years later, Scalia’s primary objective as U.S. Labor Secretary has been to solidify an enforcement philosophy at DOL that’s predictable for employers. Businesses had railed against the Obama administration for what they viewed as its overly punitive, “gotcha"-style tactics. Their frustration mounted when President Donald Trump‘s first labor secretary, Alexander Acosta, was slow to rebalance the enforcement landscape. Scalia, who took office Sept. 30, 2019, has worked to centralize decision-making; shift power away from career investigators and attorneys; emphasize providing employers with fair notice of pending actions; and ensure consistency across DOL’s vast bureaucracy of enforcement offices, according to interviews with two dozen current and former DOL officials and outside lawyers...Yet organized labor, Democrats, and workers’ rights attorneys view Scalia’s quest as a naked, corporate-friendly agenda that undermines the agency’s mission to safeguard employees. The pandemic has heightened this criticism...DOL’s Occupational Safety and Health Administration has spent the past month promoting citations levied against companies for coronavirus-related violations. But those fines have averaged $14,000 per employer, prompting greater outcry that weak enforcement is endangering worker safety. “No one wants unfair enforcement. But this is the wrong focus at this particular moment,” said Terri Gerstein, director of the State and Local Enforcement Project at Harvard University’s Labor and Worklife Program. “In the midst of these multiple crises, the sole, burning focus of the Labor Department should be on protecting workers from danger and destitution.”

  • McDonald’s Legal Boss Jerry Krulewitch Retires

    October 16, 2020

    McDonald’s Corp. general counsel and executive vice president Jerry Krulewitch has retired at the suggestion of his doctors after he was diagnosed with Parkinson’s disease, according to a securities filing from the fast food giant. The Chicago-based fast food company’s U.S. general counsel Mahrukh Hussain is serving as interim general counsel during the search for Krulewitch’s replacement, McDonald’s said in the Thursday filing...Krulewitch’s decades-long career with McDonald’s officially ended Oct.12. His run at the company began in 2002, when he joined as vice president of litigation. He became corporate general counsel and secretary in 2017. He was diagnosed with Parkinson’s, a condition that impacts the nervous system, earlier this year, according to a message to employees from McDonald’s CEO Chris Kempczinski viewed by Bloomberg Law...McDonald’s in recent years has become one of the highest profile corporations battling over the question of joint employment, or whether a franchise company is legally responsible as an employer of workers at restaurants owned by franchisees...However, franchisors like McDonald’s still have a tremendous amount of control over their franchisees, said Terri Gerstein, the director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program as well as a senior fellow at the Economic Policy Institute. “To me, it’s clear that in many instances, they should be found a joint employer,” Gerstein said. “But certain courts have allowed the franchise model to be a way for companies to evade the responsibility for ensuring a franchisee complies with the law.”

  • Lack of oversight and transparency leave Amazon employees in the dark on Covid-19

    October 1, 2020

    On the evening of Sunday, Aug. 9, workers at the MKE1 Amazon fulfillment center in Kenosha, Wisconsin, received an alert from the company via text message: More of their colleagues had tested positive for the coronavirus and they needed to maintain social distancing. They’d received about three of these notifications a week in the preceding four weeks...Kenosha County’s health director, Dr. Jen Freiheit, describedAmazon as “less than easy to work with” in an email sent to a colleague in May, referring to efforts to find out how many workers had tested positive for Covid-19. Amazon’s lack of transparency, combined with the lack of federal protections for U.S. workers who contract infectious diseases in the workplace, make it almost impossible to track the spread of Covid-19 at one of America’s largest employers during a coronavirus-led boom in online retail. This has left some of its 500,000 warehouse workers at its 110 U.S. fulfillment centers — deemed essential during lockdown — attempting to fill the information gap... “If we want to stop this virus, we collectively have to be able to keep workers safe and we have to know when people are getting exposed at work,” said Terri Gerstein, senior fellow at the Economic Policy Institute, a labor-funded think tank, and director of the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program. “It's just layer upon layer of inadequacy in terms of taking the steps needed to protect people.” ...State and local health departments follow CDC guidelines for tracking the pandemic. Many states have laws requiring doctors and laboratories to report cases, but the standardized form the CDC issued for doing so does not ask for the patient’s place of work or occupation unless the patient is a health care worker. “The idea that occupational information is not being captured when data about Covid is being gathered in any source is absurd. It’s just foolish and a terrible missed opportunity,” said Gerstein, of Harvard and the Economic Policy Institute.

  • Labor Day is a time to recognize all unions do — to help health care, education, even marriage

    September 8, 2020

    An article by Terri GersteinIf you needed surgery and could choose your hospital, what questions would you ask in deciding where to go? You’d surely ask about insurance coverage and maybe about the success rate with your type of procedure. If you have enough money, you might ask about a private room. One question, though, that almost no one thinks to ask: Is the staff unionized? That omission is a mistake. Conservatives and corporations often paint a cartoonishly villainous picture of unions as greedily grabbing workers’ dues. This foolishness couldn’t be farther from the truth. Unions look out for their members, fighting for higher wages, better benefits and safer working conditions. They overwhelmingly deliver on those promises, including in the pandemic. But what’s discussed less often is the positive effects of unions that extend far beyond their members, benefiting the general public in surprising and unexpected ways. Want to improve health care? A study of California hospitals found that the risk of dying of a heart attack was 5.5 percent less in hospitals with unionized registered nurses. Another study compared patient outcomes at three sets of hospitals — those with successful, unsuccessful and no union drives — over a nine-year period. They found measurably better patient outcomes in the newly unionized workplaces in 12 of 13 categories potentially impacted by nursing care (urinary tract infections, hospital-acquired pneumonia or sepsis, wound infections and the like). Unions also fight for strict staffing ratios and higher wages, which can decrease adverse outcomes in nursing homes, including during the pandemic.

  • State Attorneys General Are Helping Workers in Hard Times

    September 8, 2020

    An article by Terri Gerstein: These are tough times for workers, with COVID-related risks layered atop a grossly distorted power disparity that has long enabled businesses to degrade working conditions and violate labor laws. Workers and unions have been fighting back with strikes, lawsuits, walkouts, and more. But they shouldn’t have to do it alone. One basic function of government is keeping people safe. Another is enforcing the law. Unfortunately, President Trump’s labor team has barely lifted a finger to help workers. Enter state attorneys general. In recent years, a number of them have been increasingly involved in workers’ rights, as documented in an Economic Policy Institute and Harvard Labor and Worklife Program report issued last month. State attorneys general (AGs) represent their states in court when they’re sued, and also bring legal cases to protect the general public. They’ve taken on heroic battles—fighting Big Tobacco in the 1990s and the opioid industry today—and also stopped more-prosaic consumer frauds and scams. Historically, protecting workers hasn’t been on their menu. But in the past several years, state AGs have begun bringing cases to protect working people, from big-headline lawsuits against Uber and Lyft, to more local cases involving a juice bar, a cleaning company, and a security guard business. They’ve fought wage theft by restaurants and home health agencies, the sexual harassment of women farmworkers and hard hats, and the misclassification of workers as independent contractors, rather than employees, by construction, education, and other companies. State AGs have also acted to preserve job mobility by fighting against the use of noncompete agreements, which prevent people from being able to take a job with their bosses’ competitors. In consequence, Jimmy John’s sandwich shops, the co-working company WeWork, and others curtailed their use of such agreements.

  • State AGs Taking On Bigger Workplace Enforcement Role

    August 31, 2020

    State attorneys general have stepped up their workplace enforcement efforts in recent years by suing employers that short workers on pay, fighting job misclassification and challenging noncompete agreements binding low-wage workers, according to a new report by the Economic Policy Institute. The liberal think tank's Aug. 27 report runs down dozens such actions taken since 2018 by state attorneys general offices, some of which have recently formed units dedicated to prosecuting employment violations. These new efforts comprise another layer of protection for vulnerable workers in an especially precarious time, said report author Terri Gerstein, who heads the State and Local Enforcement Project at Harvard Law School's Labor and Worklife Program. "Offices that have done this work have really had an impact and done really great work," said Gerstein, a veteran of the New York State Office of the Attorney General and that state's Department of Labor. "These issues are so important right now. They were before the pandemic and now even more so, and they should really be top-line issues for leaders in all of our states and cities." Gerstein's report charts increased efforts by attorneys general to curb several workplace abuses, including wage theft, which occurs when employers short workers on overtime and minimum wage. Attorneys general in Massachusetts, New York, West Virginia and other states have filed numerous such actions, securing millions of dollars in combined pay for construction, health care, grocery, car wash and other workers, according to the report...Historically, the attorneys general offices of California, Massachusetts and New York — which have long had dedicated workers' rights units — have been the most active in the employment space. But others have recently caught up amid growing awareness of income inequality and the precarity of low-wage work, Gerstein said.

  • Pa. is part of growing movement of state AGs defending workers’ rights, report finds

    August 28, 2020

    Pennsylvania Attorney General Josh Shapiro brought criminal charges last September against a Centre County mechanical contractor for allegedly underpaying its workers by more than $64,000 over at least five years. The charges against Goodco Mechanical and its owner, Scott Good, were just one part of the attorney general’s strategy to crack down on scofflaw employers — a strategy that, according to a new report, places Pennsylvania on the forefront of a trend of state attorneys general using their powers to protect workers’ rights. In the last five years, several state attorney general offices — including those in Pennsylvania and New Jersey — have launched units focused on defending workers, transforming their offices into what report author Terri Gerstein describes as a rarity: a high-profile government entity that’s willing to hold employers accountable. Previously, only three states had such units; now, there are nine, according to Gerstein’s Economic Policy Institute report published Thursday. The trend marks a major shift, as attorneys general have not traditionally taken action on worker-related issues, said Gerstein, director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program. The shift comes as workers have faced increasingly precarious working conditions, and the percent of the workforce represented by a union has dropped to a historic low. It’s also part of a local worker protection movement, as cities and states attempt to fill the void left by the Trump administration, which has not prioritized workers’ rights. But perhaps most of all, worker issues have found footing in the national consciousness: “If you go back to 2008,” Gerstein said, “[these issues] were not in the newspaper headlines. It wasn’t a matter of such intense, focused, public concern.” In most states, including Pennsylvania, the attorney general is an elected position. Voters, she said, care about these issues.

  • Covid Gag Rules at U.S. Companies Are Putting Everyone at Risk

    August 27, 2020

    Lindsay Ruck was just starting her Father’s Day brunch shift at the Cheesecake Factory in Chandler, Ariz., when her boss told her a co-worker had Covid-19...Her boss, the general manager, told her she wasn’t allowed to mention the coronavirus case to anyone, including fellow staff. The company was informing only the people who’d worked during the sick employee’s last shift, and, per Cheesecake higher-ups, even the information that any worker had tested positive was deemed private, Ruck recalls...In the past few months, U.S. businesses have been on a silencing spree. Hundreds of U.S. employers across a wide range of industries have told workers not to share information about Covid-19 cases or even raise concerns about the virus, or have retaliated against workers for doing those things, according to workplace complaints filed with the NLRB and the Occupational Safety and Health Administration (OSHA). Workers at Amazon.com, Cargill, McDonald’s, and Target say they were told to keep Covid cases quiet. The same sort of gagging has been alleged in OSHA complaints against Smithfield Foods, Urban Outfitters, and General Electric...In July, Colorado’s governor signed a similar law, making it illegal for companies to require workers to keep health concerns private or retaliate against workers who raise them. A few days after the Colorado bill signing, Virginia’s state safety board passed its own binding Covid regulations, including a ban on retaliation against workers who raise reasonable concerns at work or on social media and a requirement that companies notify co-workers and the state about coronavirus cases. Other states should adopt such standards and could go further by alerting the public about companies with clusters of cases, says Terri Gerstein, a former labor bureau chief for New York’s attorney general’s office and now a fellow at Harvard Law School. “It’s a matter of public health,” she says, “and of opening the economy in a long-term way instead of start-and-stop sputtering.”

  • Summer was always a heat and health risk for UPS workers. Then came COVID-19.

    August 17, 2020

    Business has soared for UPS as Americans have turned to home delivery during the pandemic, but employees say heavy workloads, COVID-19 safety measures and sweltering summer heat are pushing them to the limit...Twenty UPS workers around the country told NBC News that since spring they’ve been dealing with the volume of packages they see during their peak season, the Christmas rush, if not more. As the pandemic has forced businesses to close around the country, UPS is a shiny outlier. Company statistics show home deliveries are up two-thirds compared to the same period in 2019. But even as temperatures rise, drivers and warehouse workers said they’re pushed to work harder and pressured not to take breaks or days off. As the pandemic extends into the hottest days of summer, UPS employees are among thousands of essential workers in the U.S. confronting a Catch-22. To stave off infection, they’re told to wear masks and avoid clustering with others in closed, air-conditioned spaces. But those measures increase the risk of heat illness — a problem for delivery workers even before the pandemic. Last year, NBC News found more UPS employees were hospitalized for serious heat-related injuries between 2015 and 2018 than workers at any other company except the U.S. Postal Service, which is significantly larger...But despite a growing attention to the role of essential workers, advocates said OSHA, which polices workplaces, has failed to protect them. “It’s unthinkable to me what has been happening with OSHA,” said Terri Gerstein, senior fellow at the Economic Policy Institute and director of the State and Local Enforcement Project at Harvard Law School. “They are abdicating their duty to enforce the law.”

  • Uber Says Gig Workers Are Their Own Bosses — But Courts Disagree

    August 12, 2020

    According to some estimates, over 50 million people today may be engaged in some type of gig work. In the side hustle economy, gig work has become a necessity to make ends meet while also providing some flexibility that a typical 9 to 5 wouldn’t. But gig workers are facing an identity crisis now, especially those working for popular app-based companies like Uber, Lyft, Postmates, or Doordash. Are they their own self-employed bosses, or are they employees?...The essence of an independent contractor is that they have control over how their work is conducted. They call the shots — but that means that they’re outside the reach of most employment protections and benefits. And there’s a lot of those, says Terri Gerstein, Director of the State and Local Enforcement Project at Harvard Law School’s Labor and Worklife Program. “That's minimum wage, overtime, workers' compensation — which gives you medical care and lost wages if you get sick or injured at work — the right to organize collectively bargain, form a union, anti-discrimination laws, social security, paid sick leave laws, all of them,” she explains...But is the flexibility tradeoff a fact of life? “There is nothing in any employment law that says you can’t have an employee and give them flexible hours,” says Gerstein. “So I don't know what else to say about that.” She says that this line of reasoning has become something of a “trope” with businesses. “[They say] if you become an employee, you give up flexibility — that's because they've built their business model this way.” “When workers are misclassified as independent contractors, it has a lot of serious implications,” says Gerstein. That includes all the protections mentioned above, which have been especially crucial during the pandemic. The CARES Act expanded unemployment benefits to cover self-employed workers, but if Uber drivers aren’t true independent contractors anyway, they shouldn’t have to rely on a temporary emergency expansion to receive their legal benefits.

  • Protecting Workers through Publicity during the Pandemic

    July 31, 2020

    An article by Tanya Goldman and Terri GersteinThe COVID-19 pandemic has been devastating for many low-wage workers and their families. Workers are risking their health and lives, including in meatpacking plants, grocery stores, restaurants, mass transit, and health care. Black workers, in particular, are experiencing retaliation for raising COVID-19 workplace safety concerns. Millions of workers are struggling to make ends meet after being laid off and need unemployment insurance. Other workers have been deemed essential, but their employers have not provided them living wages or critical benefits like paid sick days. While federal and state laws are in place to protect and support workers during the pandemic in various ways, many workers don’t know about these laws or programs. Similarly, employers may not realize their legal obligations. Using media and strategic communication was a critical tool for labor enforcement agencies before the pandemic—and it is of even greater urgency now. To help agencies with this aspect of their work, the Center for Law and Social Policy (CLASP) and the Harvard Law School Labor and Worklife Program released a toolkit earlier this month, Protecting Workers through Publicity: Promoting Workplace Law Compliance through Strategic Communication. The toolkit shares research showing that media coverage and public disclosure improves policy outcomes, in labor and other contexts. The toolkit can be used by labor enforcement agencies, as well as policymakers who care about worker issues, to help them use media effectively. It will also benefit worker advocates, who can share it with enforcers and policymakers as part of an effort to press for greater use of this underutilized vehicle for driving compliance.

  • These Furloughed Workers Must Sign Arbitration Agreements To Get Their Jobs Back

    July 23, 2020

    Jana Alexander was furloughed from her job at The Container Store when the pandemic began in early spring. With the economy reopening, the company recently invited her back to her old position at her store in Southlake, Texas. But there was a catch. Alexander would have to sign an arbitration agreement, giving up her right to sue The Container Store in court if she was mistreated. Her welcome-back letter made clear she had little choice in the matter if she wanted to draw a paycheck: “This job offer is contingent upon agreeing to our Mutual Agreement to Arbitrate which we will ask you to sign on your first day on the Payroll website.” Alexander, 61, refused to return to work because her husband has lung cancer and is at high risk of contracting the coronavirus. But she said her colleagues, many of them women in their 60s, would have little choice but to sign away their legal rights to avoid financial ruin...But Terri Gerstein, a labor law expert at Harvard Law School, said the situation at The Container Store underscores an absurd assumption in that ruling: that such agreements are mutually agreed upon and not coercive. “Arbitration agreements aren’t agreements in any sense of the word, because workers don’t have a choice about signing them: If you don’t sign, you can’t get the job,” Gerstein said in an email. “What options do workers have but to sign, especially now, in light of high unemployment rates, as well as the likelihood of losing unemployment insurance if they turn down a job.” She added, “Employers shouldn’t use ... the post-furlough return to work as an opportunity to impose unfair new conditions on workers.”

  • An ER Doctor Lost His Job After Criticizing His Hospital On COVID-19. Now He’s Suing

    June 1, 2020

    An emergency medicine physician from Washington state has filed a lawsuit to get his job back at a hospital. He was fired in late March after criticizing his hospital's response to the coronavirus pandemic. "This is about people on the front line being given the opportunity to speak out without being terminated and being reprimanded," says Dr. Ming Lin. Since 2003, Dr. Lin had worked in the ER at St. Joseph Medical Center in Bellingham, Wash., owned by health system PeaceHealth. As the coronavirus swept through Seattle, Lin started publicly outlining concerns about his hospital's handling of the pandemic...After Lin's firing, the American Academy of Emergency Medicine condemned the hospital administration's actions and called for an investigation, saying "it is an essential duty of a physician to advocate for the health of others." Harris Mufson, a partner with the law firm Proskauer, says the type of lawsuit filed in the Washington case can be difficult to win because it relies on common law...Along with using state laws, health care workers can pursue cases of workplace retaliation in federal court, and by filing complaints with the Occupational Safety and Health Administration (OSHA), says Steven Pearlman, a partner with Proskauer...OSHA has faced criticism during the pandemic for not being more responsive to worker concerns. That may drive health care workers to take other legal routes when facing retaliation, says Terri Gerstein, a labor attorney who directs the State and Local Enforcement Project at Harvard Law School's Labor and Worklife Program. Gerstein is also a senior fellow at the Economic Policy Institute. "It's so important that employers understand that when people raise these kinds of safety concerns, it's not an adversarial thing," she says. "They are trying to make their workplace safer and stem the spread of this horrible disease."

  • One Way To Protect Workers In A Pandemic: Make It Harder To Fire Them

    May 22, 2020

    Donte Martin authored an illuminating as-told-to essay for The Washington Post last week about working in a grocery store during the pandemic. Martin, a front-end manager at a Giant in Silver Spring, Maryland, explained how the coronavirus has rendered customers he’s always loved a health threat. Many shoppers ignore the policies meant to protect workers like Martin and even get angry over the requirement that they wear face coverings in the store. He said a supervisor even told him not to wear a mask at one point, saying it made him look like “a terrorist.” Martin’s piece didn’t mention that he is a member of a union, the United Food and Commercial Workers Local 400. But if not for his union representation, he almost certainly would not have shared his experience with the world...Of course, those are the same reasons many employers and conservative politicians despise unions: They make it harder to get rid of workers, even though most collective bargaining agreements still allow layoffs for legitimate business reasons. But it’s hard to deny that there’s a public benefit to workers having the agency to speak out in a pandemic. After all, Martin wants to protect not just himself and his colleagues, but his customers, too. Terri Gerstein, a labor lawyer and fellow at the Harvard Law School Labor and Worklife Program, said safeguards like just cause are more important than ever. “Protection against unlawful firings is absolutely critical right now,” Gerstein said. “Workers need to be able to speak up without threat of losing their jobs. That’s important for worker safety and for public health.”

  • ‘We can only do so much’? Here’s what experts say Pa., Philly can do to protect workers during the coronavirus.

    May 18, 2020

    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...The Occupational Health and Safety Administration (OSHA), the federal agency in charge of protecting workers, has largely left workplace safety up to employers...But the report, written by workplace legal experts, explains that there are measures that cities and states can take to protect workers in the absence of a proactive, fully staffed OSHA. “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.

  • As workers face virus risks, employers seek liability limits

    April 17, 2020

    The U.S. Chamber of Commerce and conservative groups are lobbying lawmakers to give companies legal immunity if front-line workers believe they got sick on the job, or if families say their loved one died after catching COVID-19 at work. Lawsuits from workers who were exposed to COVID-19 are “perhaps the largest area of concern for the overall business community” ahead of the economy reopening, a chamber memo to its members this week states. The powerful lobby argues the sheer number of lawsuits could overwhelm businesses. Businesses say they keep their workplaces safe, but the memo indicates that major corporations privately acknowledge that many so-called essential employees will get sick or die...It also concerns labor experts, who say that while these lawsuits are rare, a safe harbor could disincentivize companies from sanitizing work stations, providing protective equipment like masks and enforcing social distancing. “The chamber’s proposals are all about shielding companies from liability, which is a particularly dangerous thing to do during the pandemic. Our laws should incentivize protecting workers and consumers, and the fact that companies could be held accountable for negligence is absolutely crucial to protecting people and public health,” said Terri Gerstein, a Harvard Law School Labor and Worklife Program director.

  • How states and employers can use work sharing to avoid more layoffs

    April 7, 2020

    An article by Sharon Block and Terri Gerstein: An unprecedented 10 million people applied for unemployment insurance across the country over the last two weeks with more likely to come. Many employers are responding to shutdown orders, lack of cash flow, and the crisis by laying people off. Leaders have enacted measures to encourage employers to avoid more layoffs, such as conditioning business loans on maintaining payroll and providing tax credits for payroll expenses. There is a little known program within our existing unemployment system, however, that would enable us to avert more layoffs. Most companies and workers have not heard of it, but work sharing, also known as “short time compensation” is a way to avoid layoffs and keep people employed while reducing payroll. It was widely used during the Great Recession. In the book “Policies to Address Poverty in America,” Melissa Kearney and Ben Harris noted that work sharing programs “played a substantial role in ameliorating the rise in unemployment in many countries” when the Great Recession hit hard. Rhode Island has made good use of work sharing, with claims accounting for a sixth of state unemployment claims in 2009. This proven approach should be getting far more attention right now.

  • Hell No, You Can’t Go

    April 3, 2020

    In July 2016, Margaret Beebe of Syracuse, New York, suffered a career setback when a local laboratory rescinded a job offer, which included higher wages, regular hours, and no travel. The laboratory discovered that Beebe had signed a non-compete agreement with her former employer, a Texas-based nationwide provider of clinical services. The agreement prohibited her from working for competitors within a fifty-mile radius for nine months...The attorneys general of Illinois and New York conducted a similar investigation of WeWork, which provides shared office space for rent and associated services to clients in the United States and internationally. They found that the New York City-based company’s non-compete agreement prevented nearly all of its 3,300 employees nationwide from taking jobs with competitors for two years... “Many of these employees were cleaners, mail associates, and executive assistants, some of whom earned as little as $15 an hour,” says Terri Gerstein, who led the investigation by the New York State Attorney General’s office and is now the director of the State and Local Enforcement Project at the Harvard Law School’s Labor and Worklife Project. “The agreement violated basic fairness,” Gerstein says in a phone interview. “Just because an employee works for a company now doesn’t mean that he or she should do so forever. The mere mention of a non-compete agreement was enough to keep some terrified employees in dead-end jobs for years.”

  • Gig economy bills move forward in other blue states, after California clears the way

    January 17, 2020

    California was the first state to challenge tech companies such as Uber and Lyft with bold laws meant to reshape the gig economy by converting workers into employees. And now a handful of other states are following its lead. Legislators in three other states with Democratic majorities, New York, New Jersey and Illinois, are considering similar bills that could open the door for a wide range of freelance workers. The bills would benefit not just app gig workers but janitors, construction workers, truckers and educational workers...“It’s a moment in our politics, where people are understanding, especially in progressive states, these tensions between big corporations and corporate money and ordinary people,” Terri Gerstein, the director of the State and Local Enforcement Project at Harvard Law School. “These work issues and issues of economic inequality have come to such a fever pitch.”

  • Courts Block State Laws Aimed at Protecting Workers, For Now

    January 3, 2020

    Some groundbreaking state laws aimed at improving worker conditions have been blocked by courts, just as they were set to take effect early this year, a sign that industry groups will continue to fight measures that they say could upend business models and upset the status quo. A judge temporarily blocked parts of a law that provides new protections for agricultural workers in New York; the trucking industry in California successfully fended off enforcement of a new test for determining when a worker is a contractor; and a separate California law that would limit mandatory arbitration agreements was similarly halted... “There are different factual and legal issues in these cases, but they have some common threads,” said Terri Gerstein, director of the State and Local Enforcement Project at Harvard University’s Labor and Worklife Program. “Business and industry groups have lost in the political realm, so now they’re trying the courts. But in the end, there’s an urgent need for change right now. Economic inequality has gotten so extreme, and working conditions have become so degraded for many people, that there’s clear will among policymakers and the public to do something.” Gerstein said the industry should instead focus on complying with the new laws.