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Labor Secretary Scalia Wrongly Rejects Federal Role in Enforcing Unemployment Rights of Workers Who Refuse Unsafe Work

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The COVID-19 pandemic has laid bare the structural challenges that have plagued the nation’s unemployment insurance (UI) system for decades. Reduced federal funding starved the program of the resources needed to upgrade its antiquated IT infrastructure, causing state systems to slow to a crawl and crash amid the unprecedented volume of claims over the last three months. After the Great Recession, many states slashed UI to the point where only one in four unemployed workers (27 percent, a record low) received UI last year. With the nation’s unemployment rate now well above the highest levels reached during the last recession, and far higher still for Black and Latinx and other workers of color, the stakes are greater than ever to achieve lasting reform of the UI program.

COVID-19 is having an especially devastating impact on communities of color, disproportionately claiming the lives of Black, Latinx, and Indigenous people at rates far higher than for white people, and causing far more layoffs of those employed in the service sector and other jobs that cannot be done from home and that do not offer paid sick leave or other benefits. According to a recent New York Times survey, Black workers are twice as likely as white workers to report losing their jobs because of the crisis. A recent Somos survey of Latinx families found that 35 percent reported losing their jobs in response to the COVID-19 pandemic, while 46 percent reported taking a pay cut. As a result, Black, Latinx, and Indigenous workers will likely be required by their employers to return to work at higher rates than white workers, while having far less financial security to exercise their right to refuse an offer of work if it poses a serious health and safety threat due to COVID-19.

The current economic crisis offers a unique opportunity to collectively reflect on the vital role of the UI program, its compelling history, and the need to continue expanding its reach. Born out of the New Deal, the federal-state UI program was created by the Social Security Act of 1935, which was championed by President Franklin Delano Roosevelt and Frances Perkins, the nation’s first woman Cabinet member and the first female U.S. labor secretary. For all its historical significance, however, it must be acknowledged that the New Deal shamefully excluded from its protections the country’s domestic and agricultural workers, who were predominantly Black women and workers of color. As the U.S. confronts the current crisis, policymakers must ensure that as many workers who need it can access the help of the UI program.

A Legal Right to Refuse Dangerous Work

As more states move to reopen their economies, millions of workers who were forced out of work and have been receiving unemployment insurance are now being called back to work. Many, however, are justifiably concerned about returning to work in unsafe conditions that could expose them, their families, and the broader public to COVID-19. Were it not for a key provision of the federal UI law, today’s unemployed workers would be left without any viable recourse to refuse unsafe work.

Specifically, for workers receiving regular state UI, the federal “prevailing conditions of work” provision governs “work rules, including health and safety rules” (emphasis added) and situations where there has been an intervening change in the conditions of work, such as COVID-19. In fact, the “prevailing conditions of work” statute was the only standard relating to benefits rights included in the Social Security Act. It was also key to creation of the federal-state UI system because it provided assurance to the labor movement against the possibility that the compulsory nature of UI “might be used to break unions or weaken labor standards.” Absent this provision, which also allows workers to reject a position that is vacant due to a labor dispute, workers would be disqualified from receiving UI for refusing work that degrades the labor standards in their community.

What’s needed is strong enforcement of the federal law. Unfortunately, that enforcement has been conspicuously lacking. In fact, the U.S. Department of Labor (DOL) recently issued guidance that “strongly encourages” state UI agencies to push employers to report workers who fail to return to work—so that the workers can be disqualified from further receiving UI. In separate letters sent to U.S. Labor Secretary Eugene Scalia—one signed by more than 200 organizations and another signed by 22 U.S. Senators—supporters of workers’ rights urged the DOL to honor and enforce this critical provision of federal UI law that applies to workers who are confronted with health and safety concerns when called back to work in the context of COVID-19.

But when questioned repeatedly by Democrats at a recent hearing of the Senate Finance Committee, Secretary Scalia “abdicat[ed] his responsibility to keep workers safe by not providing guidance to states about when workers can turn down jobs in unsafe conditions and continue to receive unemployment benefits,” according to the ranking member, Senator Ron Wyden (D-OR). After failing to respond in writing to the letters referenced above, Secretary Scalia passed the buck in his testimony, claiming that it’s a matter for the states to regulate, not the federal government (“The requirement is that it be suitable work—suitable work has to be safe. And so the states are to judge that.”). Secretary Scalia’s testimony, however, flies in the face of the history of the Social Security Act, which sets the federal floor for the states to follow in order to maintain labor standards for all workers. This was also the intent behind the Fair Labor Standards Act and other federal labor laws passed in response to the Great Depression.

To their credit, several states have recently clarified how their “suitable work” laws apply to further protect workers receiving unemployment insurance from being forced to accept unsafe work. In Colorado, for example, the governor issued an executive orderrequiring the state UI agency to issue new COVID-19 guidelines. While Colorado employers have reported that more than 1,000 workers have not returned to work when recalled, 85 percent were allowed to continue receiving UI mostly because they or a household member were considered immunocompromised, or because adequate child care was not available, limiting the worker’s ability to return to work. Similarly, in North Carolina, the state UI agency issued a clear and transparent policy incorporating the COVID-19 workplace guidelinesissued by the Centers for Disease Control and Prevention, while also extending the protections to workers who are caring for children or vulnerable household members.

While the UI program has been a convenient target for critics who attack it as out of touch with the current realities of work and the economy, today’s COVID-19 crisis provides a vivid reminder that the core features of the program are as timely and relevant now as they were when they were conceived and fought for 85 years ago. However, the program must continue to evolve, to expand to include all workers, and the DOL must fully enforce the federal UI laws during this unprecedented health and economic crisis. True to the Social Security Act’s mission, it’s also time to pass federal legislation proposed by Senator Michael Bennet (D-CO) and others that would reverse the decades of weakening the UI program and restore the nation’s commitment to UI as the “first line of defense” against economic hardship and a key to a robust recovery.

This blog originally appeared at NELP on June 23, 2020. Reprinted with permission.

About the Author: Maurice Emsellem joined NELP in 1991, after working for the Legal Aid Society in New York City. At NELP, Maurice has worked on collaborations with organizers and advocates that have successfully modernized state unemployment insurance programs, created employment protections for workfare workers, and reduced unfair barriers to employment of people with criminal records in state laws and in city hiring practices. He has testified before Congress and numerous state legislatures, promoting innovative policy reforms. He was a Soros Justice Senior Fellow in 2004 and a Stanford Public Interest Law Mentor in 2003.


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Mnuchin Is Now Trying to Destroy Airline Workers’ Job Protections

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Image result for Sara Nelson, the International President of the Association of Flight Attendants

America’s aviation workers won a huge victory in the CARES Act. In the bill, Congress created a grants program that funds paychecks and benefits for two million hourly workers who were going to lose their jobs while planes are grounded. This isn’t a no-strings-attached corporate bailout for airlines. The money goes directly to flight attendants, pilots, mechanics, cleaners, caterers, and wheelchair attendants, so that we can stay on the job, on our healthcare, and out of the unemployment line. It should be a model for how we help all workers impacted by coronavirus.

This bipartisan agreement for workers-first relief could go off the rails now. At the eleventh hour, Sen. Pat Toomey (R-PA) tried to sabotage the program by requiring equity stakes in exchange for the payroll grants, i.e. “warrants.” A last-minute compromise to preserve relief for workers made such warrants entirely discretionary. On Capitol Hill, that’s what’s called a poison pill. In the bill, Congress intended that grants would actually be grants. But Trump Treasury Secretary Steven Mnuchin, so far, has shown little inclination to respect the will of Congress. His public statements imply that in exchange for keeping workers on the payroll for six months, the federal government could take stake in up to 40% of the airlines.

Under those conditions, the airlines will almost assuredly refuse the grants. And it will cause more job losses than our industry has ever seen. If Secretary Mnuchin insists on conditions that airlines can’t agree to, a million workers will get a pink slip in the near term and a total of two million will feel the pain of an industry in collapse on President Trump’s watch. That’s the opposite of what Congress intended and what the President promised. The entire point of the relief bill is to save our jobs, keep people connected to their benefits, and make sure aviation is ready to take off the minute we have this virus under control.

The federal government can take an equity stake in the airlines through warrants on the loans it provides to the companies instead. Warrants on loans make sense because when taxpayers step in to support a private company, the public deserves a share in the profits. That’s worked out well in the past. After 9/11, when airlines were reeling, the government took warrants in exchange for loans, and taxpayers made money. Even the conservative economist Douglas Holtz-Eaton of the American Action Forum, appointed by Mitch McConnell to the Financial Crisis Inquiry Commission in 2009, agrees that warrants on our paychecks make no sense, saying, “far from protecting workers, warrants are a potential assault on them.”

Warrants aren’t just destructive to the relief program, they’re unnecessary. The taxpayer return on the grants program is clear: no layoffs and no furloughs. Every dollar must go to wages and benefits. Two million workers keep paying taxes and stay off unemployment. And by keeping us on the job and on the tax rolls, our workforce will help keep the aviation industry intact during this crisis, able to provide essential services during this national emergency, and prepared to assist in the country’s economic recovery as soon as the “all clear” sounds. If a million workers are sent home, it could take months to get our industry back on its feet, and delay the whole country’s economic rebound. We don’t want our economy sitting at the gate, waiting for a flight crew to arrive.

Finally, these warrants are terrible for the flying public. If you think flying is too expensive or too uncomfortable now, warrants will make it much, much worse. Nearly everything consumers hate about air travel today is a result of past bankruptcies. Without payroll assistance that allows workers to keep their jobs, we’ll see more bankruptcies and consolidation in the industry. That means less competition, and more of the things consumers hate: smaller seats, fewer amenities, and higher and higher fees. The worst thing we can do right now is make demands on the airlines that will force layoffs, reductions in service, less competition and higher fees.

Aviation workers are trained to respond in a crisis. We’ve returned millions of Americans home to shelter, delivered critical medical supplies to healthcare workers on the front lines, and helped with the transport and care of coronavirus patients. We will protect access to air travel for small and rural communities and keep healthcare supply chains open. And we’ll be ready to lift off and support our economic recovery. But, to do that, we need our jobs. We oppose efforts to sabotage this program and we’ll keep fighting for aviation workers and all working people.

This blog was originally published by In These Times on April 2, 2019. Reprinted with permission.

About the Author: Sara Nelson is the president of the Association of Flight Attendants–Communications Workers of America.


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We Rise: Building Immigrant Working People Power

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Richard TrumkaA year ago the president announced a series of executive actions on immigration. Today is a fitting time to honor those who compelled him to act.

Around the country, courageous working people demanded an end to the deportation regime that was tearing communities, families and workplaces apart. They shut down detention centers, turned around buses, and spoke truth to power?—?all at great personal risk. They banded together to prevent the deportation of community members and loved ones who were in removal proceedings, and they won many cases. These brave actions and the determined clamor for #Not1More deportation led to the announcement of the historic deferred action program that will allow millions of parents to live and work without fear.

Communities around the country also rejected the notion that their local law enforcement officials should serve as agents of the federal immigration enforcement machinery. They had important discussions about due process and constitutional protections. Over time, more than 300 jurisdictions enacted ordinances declaring that they would focus their resources on effective community policing and place reasonable limits on their cooperation with the U.S. Immigration and Customs Enforcement (ICE). This groundswell thoroughly discredited the Secure Communities program, a federally run program launched in 2008, and resulted in its termination in 2014.

These examples inspire us, and they also show us the playbook for how you make change in the nation’s capital— you force it from the ground up. Today as we confront legal and legislative obstruction and the rebranding of failed enforcement policies, the question we should all be asking is what do we push for next?

For the labor movement, the answer is simple. We know that every worker in our country has rights, and we want each worker to be able to exercise those rights, regardless of immigration status.

While this may sound like a simple idea, we are a long way from that reality now. The sad truth is that employers routinely hire undocumented workers with a wink and a nod and then fire them when they seek to organize a union or complain about unpaid wages or unsafe working conditions. And when new immigrants muster the courage to stand in a picket line, join a boycott, or negotiate for fair compensation, employers are still able to retaliate in ways that can set deportation proceedings in motion.

This is just not right; it’s an #Injury2All and the wages and standards for all working people in our country suffer as a result of these efforts to keep immigrant workers scared and silent. Here in Washington, we have been talking for years to Congress and the administration about the need to fix these problems, but we have yet to see the concrete changes that our nation’s workers so urgently need.

So we see this anniversary as an important opportunity to sound a new call to action. We intend to take our demands for basic worker protections to every community and every immigration office in the country. Our unions and allies will raise workers’ cases from many sectors of our economy and make clear that we cannot reasonably expect to end wage theft and exploitation without protecting those workers with the courage to take a stand.

From Chicago to Los Angeles to Austin and everywhere in between, our movement reaffirms what we have long understood, that an injury to one worker is an injury to all. Our federal agencies have the discretion to provide concrete protections to workers who exercise their most fundamental rights, but it is up to us to make them act.

Polite conversations in Washington aren’t working. These changes will only come if we demand them, from the ground up. Working people are ready for this fight, and it will be coming soon to a community near you.

We will keep pushing forward to demand what is just. Please join us.

This blog was originally posted on Daily Kos on November 20, 2015. Reprinted with permission.

About the Author: Richard L. Trumka was elected AFL-CIO president in September 2009. He served as AFL-CIO secretary-treasurer since 1995.


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Big Wins For The People Who Clean Our Homes And Care For Our Children

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Bryce CovertLast week, domestic workers — those who care for children and clean inside people’s homes — won two surprise victories securing more rights in Connecticut and Oregon.

Oregon has considered a Domestic Workers Bill of Rights for many years, but then last week it gained traction. “At the last minute, this bill suddenly got the attention of a critical mass of legislators,” said Ai-Jen Poo, director of the National Domestic Workers Alliance. The law would mean that all nannies, house cleaners, and housekeepers who work in people’s homes would have a right to three days off a year, overtime pay for working more than 40 hours a week (or 44 if they live in an employer’s home), meal and rest breaks, 24 consecutive hours of rest each week or eight hours of rest every 24 hours for live-in employees, uninterrupted sleep and the right to cook food for those who live in their employers’ homes, and protections against harassment and discrimination.

Connecticut’s bill is a good deal narrower. It would change the state’s anti-discrimination and harassment statutes so that they include domestic workers, who are currently excluded. It will only apply to employers with three or more workers, however, which will exclude many households that only have one nanny or housekeeper. But as Poo pointed out, the state has “a density of wealthy employers who employ more than one domestic worker in their homes.”

And the changes can still have a big impact. “We believe a very high percentage of workers in Connecticut will benefit from this,” said Natalicia Tracy, executive director of the Brazilian Worker Center. Meanwhile, the symbolic significance is important. “It’s removing exclusions that are over 70 years old, it is creating changes in laws, but also showing it’s possible to change culture,” she said.

It’s also the first step in what organizers in the state hope will be a two-part process. Last year, the state convened a task force to study domestic workers’ rights in the state. The task force will release a report on its findings in October. At that point, Tracy, a member of the task force herself, says her group will use the recommendations to push for a full bill of rights that includes anti-relation provisions, parental leave and other benefits, and anti-trafficking measures. “I firmly believe that we’re going to be in excellent shape next year when it comes time to submit a bill and to have support on the bill,” she said.

It’s unclear whether the governors in each state will sign the bills into law, although advocates told ThinkProgress they believe both will. A spokesperson for Oregon Gov. Kate Brown (D) said, “The Governor will review the bill once it reaches her desk,” and a spokesperson for Connecticut Gov. Dannel Malloy’s (D) office said they are reviewing its bill.

Four states have already passed their own versions of Domestic Workers Bills of Rights: the first was New York, followed by California, Hawaii, and Massachusetts.

Beyond Connecticut and Oregon, Illinois could be another state to join the mix and pass a bill of rights. “We finally got a breakthrough last week with the House passing the bill, including some bipartisan support,” Poo noted. “We are now kind of all hands on deck trying to move through the Senate.”

Without the extra protections, domestic workers remain vulnerable to being paid poorly and mistreated. In a 2012 survey of more than 2,000 domestic workers across the country, a quarter were paid less than minimum wage and about half made an hourly wage that wasn’t enough to support their families. That left 20 percent to go without food because they couldn’t afford to buy any. Meanwhile, more than a third said they worked long hours without breaks but 85 percent didn’t get any overtime pay. But they have little recourse if they don’t like their working conditions: 91 percent who had problems didn’t complain for fear of risking their jobs, while among those who were actually fired, nearly a quarter was because they spoke up.

Poo’s group also isn’t settling for the basic standards required in the states that have passed bills of rights. They also want to see domestic workers get a living wage and paid time off. “We haven’t been successful in getting those pieces into many of the bills around the country,” she noted. But ever since they passed, her group has been focused on “using the minimum standards as a jumping off point,” she said, to get employers to go beyond the minimum.

This blog was originally posted on Think Progress on June 10, 2015. Reprinted with permission.

About the Author: The author’s name is Bryce Covert. Bryce Covert is the Economic Policy Editor for ThinkProgress. She was previously editor of the Roosevelt Institute’s Next New Deal blog and a senior communications officer. She is also a contributor for The Nation and was previously a contributor for ForbesWoman. Her writing has appeared on The New York Times, The New York Daily News, The Nation, The Atlantic, The American Prospect, and others. She is also a board member of WAM!NYC, the New York Chapter of Women, Action & the Media.


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Eleanor Roosevelt Fought for Human Rights and Union Rights

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Image: Mike HallToday is International Human Rights Day, which commemorates the day in 1948 the U.N. General Assembly adopted the Universal Declaration of Human Rights. One of the prime movers behind the declaration was Eleanor Roosevelt. As Mary Jo Binker and Brigid O’Farrell write on the History News Network that was just one piece of her long post-White House, progressive—and pro-union—activist life after President Franklin D. Roosevelt’s 1945 death. Something they say was glossed over in the recent Ken Burns series “The Roosevelts: An Intimate History.”

“This period is a complete mystery to most Americans who usually associate Eleanor with Franklin and assume that her role in American life ended with his death in 1945 or that her postwar life merely echoed his New Deal.”

They write that the later part of Roosevelt’s life was marked by three key concepts, political courage, civic education and citizen engagement. Political courage was highlighted by her stand against McCarthyism, while her civic education activities included a six-day-a-week newspaper column, 27 books and several radio and TV public affairs programs.

Binker and O’Farrell point to Roosevelt’s action on civil rights within a then-divided Democratic Party and helping found Americans for Democratic Action as two components of her civic engagement. They also write:

“Another important aspect of ER’s [Eleanor Roosevelt’s] civic engagement philosophy was her support for American labor. ER did more than foster the labor movement, she actually joined it. In 1937, one year after she started writing My Day, she became a member of what is today The Newspaper Guild, AFL-CIO. Despite allegations that her membership implied communist affiliation, she remained a member for over 25 years. Indeed, her union card was in her wallet when she died. ER also numbered many union leaders among her personal friends. She was particularly close to United Auto Workers Union President Walter Reuther. Reuther and ER worked and relaxed together—staying at each other’s homes and befriending each other’s families.

During the postwar years, ER gradually became a strong supporter of public-sector unions and vigorously led an effort to defeat so called “right-to-work laws” in six states. She was a keynote speaker at the AFL-CIO merger convention in 1955, a merger she had championed for 20 years. When A. Philip Randolph, president of the Brotherhood of Sleeping Car Porters, asked her to join the National Farm Labor Advisory Committee in 1959, despite failing health she agreed. She attended meetings, wrote columns and testified before Congress on behalf of migrant farm workers.”

This blog originally appeared in AFL-CIO. org on December 10, 2014. Reprinted with permission. http://www.aflcio.org/Blog/Global-Action/Eleanor-Roosevelt-Fought-for-Human-Rights-and-Union-Rights

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.


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FLOC Takes Fight for U.S. Tobacco Workers’ Rights to England

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Image: Mike HallFarm Labor Organizing Committee (FLOC) President Baldemar Velasquez will be in London, England, on Wednesday to urge British American Tobacco (BAT) to use its influence as a 42% stakeholder in Reynolds American Inc. (and a major customer) to persuade the company to respect and protect the human and workers’ rights of its migrant tobacco farm workers.

You can add your voice to the chorus of those urging BAT to take responsibility for ensuring the rights of workers in its supply chain. Click here and sign a petition from the International Union of Food Workers (IUF) to BAT CEO Richard Burrows asking him to urge Reynolds to guarantee the human right to freedom of association and worker representation on its contract farms by signing an agreement with FLOC.

A 2011 report by Oxfam America and FLOC, A State of Fear: Human Rights Abuses in North Carolina’s Tobacco Industry, showed that many farm workers often live in labor camps with inadequate or non-functioning toilets and showers and other substandard conditions, suffer from illnesses resulting from nicotine poisoning and exposure to dangerous pesticides and work long hours for below poverty wages.

This article was originally printed on AFL-CIO on August 28, 2014.  Reprinted with permission.

About the Author: Mike Hall is a former West Virginia newspaper reporter, staff writer for the United Mine Workers Journaland managing editor of the Seafarers Log.  He came to the AFL- CIO in 1989 and has written for several federation publications, focusing on legislation and politics, especially grassroots mobilization and workplace safety.


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