The Harvard Gazette:

How COVID turned a spotlight on

weak worker rights

Maarten van den Heuvel/Unsplash

Block and Sachs point to flaws in the

social safety net, an indifferent
OSHA, and a system that favors
employers over employees
BY Liz MineoHarvard Staff Writer
DATE June 23, 2020

As the economy reopens after the COVID-19 shutdowns, businesses are taking a varied, often

patchwork approach to ensuring health and safety for their workers, and much uncertainty

persists regarding employers’ obligations and employees’ rights. The Gazette spoke with labor

law experts Sharon Block, executive director of the Labor and Worklife Program, and Benjamin

Sachs, the Kestnbaum Professor of Labor and Industry at Harvard Law School (HLS), about how

the pandemic has turned a spotlight on the lack of clear workplace protections in general, and in
particular for women and people of color, who were disproportionately represented among those

deemed essential. Block and Sachs recently co-authored a report urging that U.S. labor law be

rebuilt from the ground up. On June 24, they will release the report “Worker Power and Voice in

the Pandemic Response.”

Q&A

Sharon Block and Benjamin Sachs

GAZETTE: What do you think the COVID-19 crisis has revealed about working conditions in

the United States?

BLOCK: What it has revealed is something that many of us have known for a long time, but

it’s been revealed in a much more urgent way, and it is how tattered our social safety net is in

this country. That plays out in in a number of ways: for example, how inadequate our supports

for workers are in terms of unemployment insurance. Just look at the desperate circumstances

now more than 40 million workers have found themselves in. That’s been the reality for many

low-wage workers, not on a mass scale, but that’s been their lived experience, even throughout a

time when we thought we were in an expanding economy. The other side that has been exposed

is that for workers who have been deemed essential and have worked throughout this crisis, how

little protection they have in the workplace to be able to stand up for themselves, to say that their

conditions are unsafe and they’re not being paid adequately for the important work they’re

doing. On all sides of the social safety net and the ability of low-wage workers to have a decent

life, what we’re seeing in myriad ways is how the system has failed workers.

SACHS: I would just add how weak the protections are for workers who stand up and demand

safe, healthy, and fair working conditions, and how easy it is to fire workers who do that. It has
also shown how badly broken our system of labor law is, which is to say that our system doesn’t

give workers a voice so that the only recourse workers have is to take to the streets, and how

little opportunity they have for an institutional structure of communication and demand-making.

The other thing that Sharon and I would like to stress is how the crisis is being borne

disproportionately by workers of color and women, which is another failing of our labor market

and our system of labor law.

GAZETTE: Why are workers of color and women bearing the brunt of the coronavirus crisis?

What role do the labor market and the labor law system play in it?

BLOCK: This is the result of the broken safety net we have. These are workers who are deemed

essential, but the law has not treated as essential. They don’t have basic rights or the law doesn’t

adequately address their situation. For lots of low-wage workers who are in these essential

industries, the current labor law is particularly broken. They really have almost no real access to

being able to act collectively and have the law recognize that and thereby give them power to

affect their situation at work. As Ben said, they are predominantly workers of color and women,

and that’s a big piece of why this pandemic has hit them so hard. We’re really seeing this

connection that a lot of people intuitively knew, but hopefully more people understand now,

which is that it is hard to separate economic issues and public health issues and issues of physical

well-being. It’s not an accident that most people who are getting sick are poor or paid low wages.

GAZETTE: Can you compare the working conditions of workers in the United States to those

in Europe during this coronavirus crisis? Which group fares better?

Harvard Law Professors Sharon Block (right) and Benjamin Sachs aim to reform American

Labor Law. They are releasing a report titled "Clean Slate for Worker Power: Building a Just

Economy and Democracy."

Stephanie Mitchell/Harvard Staff Photographer

SACHS: Workers in Europe have a much richer set of protections than workers in the United

States. That includes multiple mechanisms for worker voice, unions, works councils, sectoral

bargaining, representation, and a much more robust social safety net. The situation is much

harsher here.

BLOCK: You can see that just in looking at the simple measure of unemployment in Europe

and in the United States. There are examples of many European countries moving much faster to

put supports into place. It’s unbelievable that we’ve had over 40 million workers apply for

unemployment insurance benefits in this country. But what’s really horrifying is that probably

that does not capture everybody who has lost their job because our system of unemployment is

so difficult to navigate. In most European countries that’s different, either because they’ve taken

a different approach to having agreements to pay wages during this time so that workers keep

their jobs, or because you have unions and workers’ organizations, as is the case in some

Scandinavian countries, that actually help administer the unemployment insurance system. It’s

very, very different from what we have here. In Germany, and probably in other European

countries, there is a sectoral bargaining table for fast-food workers. Very quickly in the

pandemic, there was an agreement among the government, employers, and unions that those

workers would get about 90 percent of their wages, at least for the beginning of the shutdown

period. Compare that to what McDonald’s workers are going through in the United States. It’s

just a different world.

GAZETTE: You have advocated in favor of sectoral bargaining, a system of collective

bargaining that happens between an entire sector, such as the fast-food industry, and all the

workers in that sector. How would that help workers in the time of coronavirus?

SACHS: It has become completely obvious that we can’t rely on the government, particularly

the federal government, to protect workers. The Trump Occupational Safety and Health

Administration (OSHA) hasn’t taken the elementary step of promulgating a standard for dealing

with this crisis, much less a sophisticated enforcement program. We need to rely on workers to

have the power to protect their own safety and health, and public health, as well. In our view, we

can give workers that power through a system of collective bargaining, which has several

components, including sectoral bargaining.

The reason to have sectoral bargaining over safety and health issues during the pandemic is

threefold: One, there are safety and health issues common across all firms in a given sector; all

grocery stores have similar safety and health problems, all hospitals have similar safety and

health problems, and so on. It makes sense to address those common issues at a single bargaining

table. Doing so alleviates a lot of the cost of negotiating standards. If you have to do the same

thing at thousands and thousands of firms across the country, that’s much more costly. The other

reason to do it sectorally is that you can take the costs of safety and health compliance out of

competition if all the firms in the sector have to comply with the same baseline safety and health

standards. Nobody should be competing by cutting corners on safety and health. That said,

sectoral safety and health negotiations aren’t enough. We need workers’ voices over these issues

at the workplace level as well. Sharon and I are recommending a system of workplace safety and

health committees at the workplace, which would implement and adapt sectoral safety and health

standards to the local conditions of a given workplace.

GAZETTE: What responsibilities do employers have with essential workers? And now that the

economy is reopening and many more workers are going back to work, what are their obligations

to those workers?

“On all sides of the social safety net and the ability of low-wage workers to have a decent life,

what we’re seeing in myriad ways is how the system has failed workers.”

— Sharon Block

BLOCK: Sometimes it isn’t clearly understood, but in our law, employers have a responsibility

to provide a safe and healthful workplace. Period. It is their obligation to do that for workers. We

have a federal agency that is supposed to help define how to do that and enforce that obligation.

Unfortunately, they are not doing that. In fact, there was just a hearing recently in the House of

Representatives where the head of OSHA absolutely refused to answer any questions about why

that agency has not issued standards for employers on how to provide a safe and healthful

workplace. It’s really important to understand that is where that obligation is. To me, it is

horrifying that workers are having to make that decision for themselves: whether to walk into a

workplace that they are not sure is safe or risk losing their job. Workers are being threatened

with their unemployment benefits being cut off if they refuse to work in a place that is unsafe,

either because the employer isn’t taking the steps necessary to make it safe or because they have

some underlying condition that makes them particularly vulnerable. As this opening up happens,

states are putting procedures in place to cut off unemployment benefits for workers who refuse to

return to work and yet those states and the federal government are not doing what is necessary to

ensure that the workplaces workers have to go back to are safe.

SACHS: Our perspective is that what the law should do is empower workers to demand safe

and healthy workplaces, that we shouldn’t have to rely on the government because we can’t rely
on the government. Workers shouldn’t have to rely on the goodwill of their employers. They

should have the power to insist upon safety and health, and making sure that workers have that

power is going to require significant legal reforms. That’s what we need.

GAZETTE: Much has been said about gig workers, Uber drivers, Amazon workers, delivery

workers, and their lack of protection during this crisis. Given their classification as independent

workers, what obligations do companies have to them?

BLOCK: This is just another example of how the law has so been stacked against workers who

need its protection the most. For the most part, they are left out of the social safety net. They

don’t have access to collective bargaining rights or unemployment insurance. But in the relief

legislation that passed, for the first time, people who have been treated by their employers as

independent contractors, gig workers, or self-employed people, can apply for some

unemployment insurance benefits. But it’s clearly not enough. States have been slow to process

claims under this provision of the relief act to provide gig workers with unemployment benefits,

not to mention the fact that none of the companies that treat their workers as independent

contractors have paid into the system. This is just a whole other set of problems about

responsibility because companies are creating these conditions where workers are so precarious

but hold no responsibility for the consequences of that treatment.

I hope this crisis helps the public understand that when companies misclassify workers as

independent contractors and talk about vague notions of flexibility and independence, it has real-

world consequences, and a lot of workers are having to live with those dire consequences.

GAZETTE: With the reopening of the economy, what legal workplace issues are you most

concerned about?
BLOCK: It has to start with safety and having some way of assuring that workers are walking

back into workplaces that are safe, and we just don’t have that in place right now. We don’t have

that in place because OSHA has abdicated responsibility and because workers don’t have the

power for the most part to be able to assert that for themselves. We don’t have it because we

have no coherent testing strategy to figure out who is sick or who is a vector of disease

transmission. When you put these all together, it’s just heartbreaking to think about workers

having to make the decision and say, “Do I walk back into that workplace or do I stay home and

stay safe and lose my unemployment insurance benefits?” There’s a whole other set of issues if

schools are closed. What happens to childcare? What happens to children who are home? I was

in the Obama administration for eight years, and we fought constantly for some kind of coherent

childcare program in this country. We’re going to really see how that gap is going to even further

devastate women’s employment in the wake of the pandemic.

SACHS: So many of these problems have existed for decades now. What the pandemic sadly

did was made them far more acute and immediate. The potential upside is that it gives us an

opportunity to really do the kind of rebuilding and restructuring that we need, providing a much,

much more robust social safety net, and much more robust protections for worker health and

safety. From our perspective, the critical piece is empowering workers to have a voice in the

shaping of their own work lives. That is the essence of where we need to go, and our hope is that

that will be possible before too long.

This interview has been condensed and edited for length and clarity.

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