Enforcement Project

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Protecting Workers through Publicity: Promoting Workplace Law Compliance through Strategic Communication

June 30, 2020

By: Terri Gerstein and Tanya Goldman

The Center for Law and Social Policy (CLASP) and the Harvard Law School Labor and Worklife Program have released a new toolkit on strategic communication, a critical component of driving compliance with workplace laws. Communicating about agency enforcement, which is critical to informing the public about their rights and responsibilities, is one of the most effective ways to deter violations. These goals are more important than ever as labor enforcement agencies strive to protect workers during the coronavirus pandemic.This resource addresses why agencies should use media and other means of strategic communications and offers suggestions on how to do so. In a moment of reduced state budgets and limited resources, media coverage and strategic communications are a cost-effective way for agencies to multiply their impact and inform workers of their rights.

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Forget COVID! Trump Says Regulations Are the Problem

June 1, 2020

Morning Consult

The executive order directs agencies to eliminate regulations, to treat corporations with kid gloves and to refrain from enforcement action so long as companies say they’ve tried their best. It’s a staggering diversion of public resources to private corporate interests. Government resources at this moment should be focused on ramping up testing capabilities, ensuring that workplaces are safe and making sure that people can keep a roof over their heads and food on the table. This is precisely what many state and local governments have done, while Trump wants agencies to spend the public’s time and money on weakening law enforcement and gutting protections.

Inadequate workplace regulations and limited enforcement have already caused thousands to sicken and die, while the Labor Department stands by and Trump himself urges workers to return to unsafe working conditions.... Read more about Forget COVID! Trump Says Regulations Are the Problem

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

May 29, 2020

Will Stone

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.

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."

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Employers Can Expect Leniency, Not Freedom From U.S. Regulators

May 22, 2020

John Lauinger and Karl Hardy 
Bloomberg Law

Employers can expect leniency from federal regulators as they ramp up operations after virus-induced shutdowns, as long as they are able to demonstrate substantial good-faith efforts to adhere to recent updates to agency rules and guidance.

A new executive order President Donald Trump signed this week was intended to boost economic recovery in part by instructing agencies to overlook certain regulatory violations if a business tries to follow federal best practices for preventing the spread of the novel coronavirus.

This section could give employers a significant upper hand in investigations. Certain aspects of it raise concerns for workers, said Terri Gerstein, director of the state and local enforcement project at Harvard’s Labor and Worklife Program. She cited a principle calling for enforcement to be “free of unfair surprise.”

“In the workplace enforcement field, you have to do unannounced inspections and investigations,” said Gerstein, former labor bureau chief in the New York attorney general’s office. “If they’re announced, people get coached, evidence gets destroyed, places get cleaned up.”... Read more about Employers Can Expect Leniency, Not Freedom From U.S. Regulators

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

May 22, 2020

By Dave Jamieson

Unionized workers are far more likely to speak out about dangerous working conditions during the coronavirus pandemic. There’s no mystery as to why.

Workers who have weak job protections are fearful to speak up, lest they get punished or even fired. The vast majority of Americans work “at will” ― meaning their employers can get rid of them for almost any reason, as long as it isn’t discriminatory. 

And while workers have a nominal right to refuse dangerous work, the law is weak and puts the burden of proof on employees.

“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.”... Read more about One Way To Protect Workers In A Pandemic: Make It Harder To Fire Them

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How States and Localities Can Protect Workplace Safety and Health

May 15, 2020

Jane Flanagan, Terri Gerstein, Patricia Smith
Labor and Work LIfe Program and 
National Employment Law Project

As states consider how to protect public health amidst the COVID-19 pandemic, various questions have arisen about their ability to do so: Specifically, to what degree is state action in the health and safety arena preempted by the federal Occupational Safety and Health Act (OSH Act) and federal enforcement by the Occupational Safety and Health Administration of the U.S. Department of Labor (OSHA)? How can states and cities take action to protect workers and members of the public without running into federal preemption issues? This paper provides a basic explanation of OSHA preemption and describes some potential sources of authority and avenues for action by states and localities wishing to protect working people in their jurisdictions.

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Press Release
News Articles: "We can only do so much’? Here’s what experts say Pa., Philly can do to protect workers during the coronavirus." by Juliana Feliciano Reyes, Philadelphia Inquirer, 5/16/20

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State and local labor standards enforcement during COVID-19

April 28, 2020
By Terri Gerstein and Jane Flanagan
Economic Policy Institute 

The need to safeguard workers’ physical health and financial stability is more important than ever during the COVID-19 pandemic. State and local labor enforcement agencies are critical to such efforts, particularly given the federal administration’s abdication of leadership on worker-protection issues. Yet responding to the current crisis will require state and local labor agencies to quickly reorient to a new reality and repurpose their staff and routine functions in new and creative ways. As former state enforcers, we share the following ideas about how such agencies might utilize tested and effective strategic enforcement strategies and tools to respond to this moment.
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The Pandemic Response Measures State and Local Governments Should Move On Now

April 14, 2020

By Terri Gerstein and Naomi Walker
Route Fifty

COMMENTARY | State and local officials have initiated many measures to mitigate the consequences of the coronavirus. However, there is still much more for them to do.

The Trump administration has failed the American people to an astonishing extent during the current pandemic crisis. Failed to prepare, failed to take the threat seriously, failed to direct resources where they’re needed, and failed to tell the truth. While Congress has provided some aid to state and local governments in relief packages, given the enormous fiscal challenges already underway, it will not go nearly far enough to help offset the health and economic fallout of Covid-19.

The federal government is the only entity with the sufficient scale and resources to do what’s needed, and yet those efforts continue to be lackluster at best. Ultimately, Congress should pass a new aid package that provides states and localities with $500 billion—more than triple the amount already authorized.... Read more about The Pandemic Response Measures State and Local Governments Should Move On Now

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

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

April 7, 2020

The Hill

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.

Instead of laying off, for instance, half of the workforce, a company would decrease the hours of its employees by half. These workers would then be paid for 50 percent of their time and would receive unemployment compensation for the other 50 percent. More than two dozen states already have working sharing programs up and running, along the broad political spectrum, from California to Nebraska.

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How To File For Unemployment If You've Been Affected By Coronavirus Layoffs

March 23, 2020

Monica Torres

What every worker needs to know if they've lost a job because of COVID-19.

As the coronavirus pandemic spreads across the nation, many Americans are losing their jobs as nonessential businesses grind to a halt. Nearly 1 in 5 U.S. workers lost their jobs or had their hours cut as of March 14, according to one poll, and that number is expected to grow. The Economic Policy Institute estimates that 3 million jobs will be lost by this summer.... Read more about How To File For Unemployment If You've Been Affected By Coronavirus Layoffs