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Terri Gerstein

  • 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, 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."