Terri Gerstein

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.”

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.

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.

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.

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.”

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.”

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.

Two Minnesota agencies are ramping up their efforts to root out wage fraud by adding staffers to enforce a new state law that penalizes employers for exploiting their workers. Minnesota Attorney General Keith Ellison has added two lawyers to his office who will handle cases where companies are accused of cheating employees out of money they’re owed. Meanwhile, the state Department of Labor and Industry is hiring seven new staffers who will exclusively investigate such claims, after the state passed one of the nation’s toughest wage theft laws in August...Terri Gerstein, who helps states navigate wage and labor laws at Harvard’s School of Law, said cities and states nationwide are passing laws. “States and cities are really standing up in this area and feeling the need to be leaders and take action and protect their people because of the way the federal government is rolling back workers’ rights and has been less aggressive in protecting workers’ rights in some ways,” she said.

AirPods, the $159 wireless headphones from Apple Inc., are sold as an airy, liberating, wire-free experience. But like other modern gadgets, they have for some become an emotional burden and pain in the wallet...AirPods add to the jitters. The sleek white apostrophes that resemble electric toothbrush heads are slippery, small and easily pop out of ears. Popularity is finally skyrocketing, three years after their launch. So are the losses. Terri Gerstein will never go back to wearing a tether between her ear and phone. That’s why she fashioned a tool from a broom and duct tape to retrieve one of her AirPods that plunged through a Brooklyn sidewalk grate. The pod hunt was successful but left her shaken. “I felt like I don’t deserve them. I’m not careful enough. I don’t deserve something so nice,” said Ms. Gerstein, who directs a workplace-law program at Harvard Law School.

It is no longer so unusual for people to show spontaneous online appreciation for the place they work — or, more often, the people they work with. But when Amazon “fulfilment centre ambassadors” took to social media this month to defend the company against criticism of working conditions, Twitter’s inauthenticity klaxon sounded immediately. Amazon has been coy about the details, stating the ambassadors — who first became visible a year ago — are real warehouse staff and part of a wider education programme that also includes tours of fulfilment centres. Twitter users dealt with this creepy public relations campaign in the way they know best, trolling Amazon’s dime-a-dozen diplomats and imitating the accounts so it became impossible to distinguish reality from parody. Terri Gerstein, a former labour lawyer now at Harvard Law School, pointed out on Slate that the initiative was part of a more general rise in “ventriloquist employers” that use “workers as a prop to serve company interests”.

No advocates for workers’ rights or labor were especially surprised last week when President Trump nominated Eugene Scalia for secretary of Labor, succeeding the utterly discredited Alex Acosta. Scalia — son of the late Supreme Court Justice Antonin Scalia — had made his reputation in Washington as a lawyer for big corporations resisting labor regulations, after all. ... As Terri Gerstein, a labor expert at Harvard Law School, observed in March, the Trump proposal would work out to less than $17 an hour — not exactly what most would consider “supervisor” pay — and would be silent on fast-food chains’ habit of suspiciously loading up their restaurant workforces with “general managers, assistant managers, night managers, managers for opening and closing and delivery, all paid a weekly salary.”

As a junior in college, Delaney Dunne took an internship for class credit and $10 an hour at co-working company TekMountain in Wilmington, N.C. On graduation day this year, she received a letter from TekMountain’s parent asking about her employment status and reminding her she had signed a noncompete agreement with TekMountain in November 2017 that restricted her employment options...“The idea of noncompetes for interns is ludicrous,” said Terri Gerstein, a Harvard University academic who previously served in the New York attorney general’s office. “Internships are supposed to be for educational and professional development, and are about expanding—not limiting—job opportunities.” She said it is unlikely intern noncompete agreements would be upheld in court in most states.

As a union boss, Mark Erlich became known for his efforts to help authorities crack down on construction companies for labor abuses such as misclassifying workers as independent contractors or illegally paying them under the table. Some of those bad actors must have breathed a sigh of relief two years ago. That’s when Erlich finally retired from his influential job running the New England Regional Council of Carpenters, and moved on to the confines of academia. Maybe they shouldn’t get too comfortable. Erlich quietly continued his crusade, though it no longer involves picket-line signs or giant inflatable rats. Erlich instead spent the past year researching and writing a report on payroll fraud with coauthor Terri Gerstein, a former labor law enforcer in New York, for Harvard Law School’s Labor and Worklife Program.

An op-ed by Terri Gerstein and Brian Shearer:  Would it be ethical for a lawyer to draft an employment contract in which a fast food worker is paid not with money, but only in burgers and fries? What if the lawyer’s client—the employer—asked for it? Most lawyers would balk at fulfilling such a blatantly illegal request. Unfortunately, for years, many lawyers have done something very similar: They’ve routinely included clearly illegal or unenforceable terms—like bogus noncompete agreements—in worker contracts. Fortunately, someone is now asking questions about this practice. On Wednesday, the Center for Public Interest Law at the University of San Diego School of Law submitted a letter to the California State Bar requesting an ethics ruling to stop lawyers from writing employment contracts with clearly unenforceable terms. The California Bar’s Committee on Professional Responsibility and Conduct should swiftly respond that such conduct is unethical.

An op-ed by Terri Gerstein, director of the Project on State and Local Enforcement at the Labor and Worklife Program...Technology companies pride themselves on their cutting-edge, visionary nature. Now that they’ve taken the first step, here’s an opportunity for them to be early adopters, and national leaders, by making an even more impactful move: ending forced arbitration in relation to all employment-related disputes, not just sexual harassment. And given the extensive reach of these companies through their multitude of contractors, they should prohibit their contractors from forcing employees into arbitration, as well.