As much of the world’s attention remains focused on finding a vaccine to fight COVID-19, few people have done more to try and inoculate some – namely, the rich and powerful - against the financial impacts of the virus than Senate Majority Leader Mitch McConnell and the pro-big business wing of the GOP. While parents worry about the push to re-open schools, and the impact of returning to class on their children, Senator McConnell appears to be up late worrying about the impact of the virus on corporate ledgers.
And yet, there’s an important lesson (and no doubt more than one) that Senator McConnell could learn by listening to America’s parents: Re-opening – whether its schools, businesses or the American economy – requires, as a first step, assuring students, workers and consumers that it is safe to do so.
As the country sags under the weight of ballooning COVID-19 caseloads, and some states see a surge in infections, the key to resurrecting American business is having those businesses address the situation in a way that gives the public confidence that our workplace, and marketplace, are safe to return to.
Instead, Sen. McConnell is demanding immunity from lawsuits for any corporations caught endangering the health of their workers, customers or the public at large while the pandemic rages on. Such proposals may please some of his large corporate donors, but they’re both bad for public health and, as a result, bad for the economy.
Two lawsuits brought by my organization, Public Justice, along with the Denver-based public interest firm Towards Justice, and other co-counsel, show how the civil justice system can make workplaces safer in a way that enhances employee trust, consumer confidence and public health. By doing so, these lawsuits, which are the result of courageous organizing by workers in some of the country’s most dangerous industries, also shine a light on how corporate executives can respond in a way that strengthens America’s trust in business, which is a key part of successfully opening the country up once again.
In both cases we argued that employers were creating a public nuisance by imposing significant risks of spreading the disease in the communities in which they operate. Our cases weren’t about monetary damages. Instead they sought policy changes that would force the companies to operate more safely and protect their employees and, in turn, their families and communities. In both cases, the employers took substantial steps in response to the suits that made their workplaces safer (though not nearly as safe as they could and should be). But even slight progress in the right direction can literally save lives, and when Mitch McConnell tries to block such legal challenges, he is really trying to wipe away one of the most powerful tools that workers, and consumers, have to hold dangerous companies accountable and to impact real, consequential change.
Specifically, our case against Smithfield Foods, filed in partnership with Towards Justice and the Heartland Center for Jobs and Freedom, on behalf of the Rural Community Workers’ Alliance (RCWA) and an anonymous meat packing worker in Milan, Missouri, sought to force the company to comply with CDC guidelines related to COVID-19. Shortly after the suit was filed, and as the direct result of it, Smithfield made a number of significant changes to its operations. Among the steps taken to increase worker safety, the company: (1) expanded the employee break area to allow for social distancing; (2) changed its clock in/clock out policies to allow for social distancing; (3) reduced the number of hogs it is slaughtering at the plant to allow for social distancing; (4) began enforcing mask policies; (5) altered its sick leave policies to allow for paid leave if a worker showed symptoms; (6) expanded its guidelines of what constituted “symptoms” to match the CDC’s updates; and (7) made the barriers between workers on the line stronger.
If our clients had not taken a stand against Smithfield, the company would almost certainly not have made these changes (after all, it didn’t fix any of these things for months after the pandemic began, not until the suit was filed). Under Senator McConnell’s proposal, however, such suits – and the public attention and pressure they bring to bear in support of workers – would no longer be possible.
Nor would our suit against online retail giant Amazon, where Public Justice, Towards Justice, Make the Road NY and the Terrell Marshall Law Group brought a lawsuit on behalf of three workers and three of their family members, who work at the company’s JFK8 facility that services the entire city of New York.
Our clients went to work each day at the height of the pandemic in New York with little to no social distancing and were even told to come in for extra shifts to meet surging consumer demand, all while Amazon’s byzantine H.R. policies and sloppy contact tracing discouraged workers from taking leave when they may have been exposed to someone with COVID-19 (or even when sick themselves). These unsafe conditions were made even worse by Amazon’s notorious work-rate and “Time off Task” policies, which track employees’ movements and require them to hit various productivity measures each shift, where the top (fastest) performers are praised and the bottom (slowest) performers are at risk of losing their jobs. These productivity metrics discouraged workers from taking time to wash their hands, clean their workspaces, or take other steps to protect themselves and each other against COVID-19 (such as waiting for others to leave a bathroom or breakroom to promote social distancing). Meanwhile, in recent months, dozens of workers at Amazon’s JFK8 facility have tested positive for COVID-19, and at least one has died from the disease. The toll on Amazon workers nationwide is even higher.
Then, on Monday, July 13, and unquestionably in response to the lawsuit, Amazon made a change, informing warehouse workers for the first time that, as a matter of corporate policy, it will not punish them for spending time washing their hands or cleaning their work stations during the pandemic. This change in policy (which applies to warehouse workers all over the United States, and not just at the JFK8 facility) will give its employees the peace of mind that they no longer need to rush into crowded bathrooms to wash their hands or forego such basic hygiene entirely, nor will they need to fear that they don’t have adequate time to disinfect their work stations. There are many additional steps that Amazon still needs to take to make its operations reasonably safe, but this is a major change that will unquestionably make Amazon warehouses safer.
And, as with our Smithfield litigation, the suit against Amazon could never have been brought if Senator McConnell had his way.
The ability of these workers to go to court in these two cases will likely save lives. In both cases, the courts were the tool that facilitated critical changes that could well mean the difference between sickness and health – or even life and death – for employees at two of the country’s largest companies.
Immunity is a great achievement when it’s about vaccinating against disease. But corporate immunity, on the other hand, is downright deadly, for workers, consumers and the U.S. economy. And keeping our courts open to everyone is the only way to ensure that some corporations take seriously their responsibilities to protect people.
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