Oct. 2, 2020
LA County proposes worker councils on COVID safety
Many workers are issuing demands to their employers through non-union third parties or without any representation at all, attorneys say. But a plan set in motion this summer by Los Angeles County may present the most novel framework for worker organizing yet - at least when it comes to addressing COVID-19 safety.
News of workers banding together to voice safety concerns has been a constant through the pandemic, and has ramped up as workplaces begin to reopen for on-site work. But in a labor landscape where unionizing has fallen out of reach for many workers, these organizing efforts aren't exactly looking traditional.
Many workers are issuing demands to their employers through non-union third parties or without any representation at all, attorneys say. But a plan set in motion this summer by Los Angeles County may present the most novel framework for worker organizing yet - at least when it comes to addressing COVID-19 safety. In July, the county's Board of Supervisors approved a proposal to help workers set up "public health councils" at their workplaces - worker-led groups that will collaborate with third-party organizations certified by the county Department of Public Health to monitor, document, and report their employers' violation of COVID-19 safety orders.
The Department of Public Health's implementation plan, which is being finalized and will be submitted to the Board of Supervisors by Oct. 13, will outline how workers can report safety concerns and be insulated from retaliation. Labor activists and some attorneys and academics agree public health councils are a novel approach in novel circumstances. But they are much more divided on whether the worker-led groups are necessary. They ask: Do they give workers a much-needed voice at a time when unionizing has become increasingly hard, or do they ignore existing labor laws and expose struggling employers to more liability?
One reason advocates in Los Angeles County pushed for public health councils is many workers do not feel unionizing is an option, said Tia Koonse, legal and policy researcher manager at the UCLA Labor Center. Koonse said this is partly due to the fact the National Labor Relations Act has not been updated since it was enacted in 1935, and does not account for how hard it is for organizers to distribute union information in modern workplaces.
"The union density rate in the private sector is down to 6%," Koonse said in an interview Wednesday. "If it were easy to form a union, our density rate would be way higher than 6%. It's really, really, really hard to win a union election. ... It's hard to counteract any kind of negative campaigning from the employer."
"A lot of workers who would benefit from a union [think] that sounds too scary, that's too much, that's too hard," she added.
Koonse said since the start of the pandemic, she's seen more workers express interest in organizing without the aim of forming a union, so they can voice safety concerns to their employers. But many stay silent because they fear retaliation, she said, which is why she thinks the councils - whose members would be protected from retaliation - are necessary.
"In California, we have anti-retaliation provisions for asserting your workplace rights. So arguably the COVID-19 safer at work orders apply, but ... [they're] not the Labor Code, and the retaliation provisions I'm speaking about are in the Labor Code," she said. "The council idea is so cool because it minimizes your risk by collectivizing the role. It's a whole lot harder to fire six people than one person."
But Ron Holland, who represents employers as a partner at McDermott Will & Emery LLP, said the public health councils seem redundant - and potentially preempted by the National Labor Relations Act.
"I do think that there are some serious due process issues as well as NLRA preemption issues, because it's essentially forming a union in the workplace without the organizational ... hurdles that workers would have to go through under the NLRA," Holland said.
Chris Foster, also a partner at McDermott, agreed, adding, "States don't get to create their own shadow systems" of the statute.
"Rather than clarify what's expected under the county's [public health] order, now there's another way that employers are held liable and have exposure. ... That's just a fundamental due process issue," Foster said. Workers already have many avenues to address safety concerns, including filing reports to Cal/OSHA or addressing concerns directly with their employers, he said.
"The problematic thing is that businesses in the state are facing the most difficult economic climate in decades," he said. "It's difficult and resource-intensive to figure out what the law is because it changes so frequently. ...There are a million ways [employers] can be held accountable for those standards."
Koonse disagreed that the public health councils mimicked unions. With the councils, she said, "The boss doesn't have to negotiate. They can talk about one thing: the COVID-19 safer at work order. ... I can see where it would create an avenue where there isn't one right now for workers to approach their boss about it."
"Most jobs don't have HR," she said. "Having clarity about what you do in that situation when you know your employer is not in compliance is invaluable."
The public health councils have already been challenged by organizations including the Beverly Hills, Palos Verdes Peninsula, Long Beach Area, Culver City, and West Hollywood Chambers of Commerce, which all submitted public comment to the board of supervisors this summer and expressed concerns about exposing businesses to more liability.
For Holland, a better way for employers to address workers' safety concerns is to talk to them directly. "Employers have to be good employers and manage the safety issues in the workplace, and ... listen to their workers even more closely than they did before," he said. "If you're not focusing on the safety of the workplace and your employee concerns, then you're almost putting them in a position where they're forced to go outside."