Weekend News & Commentary – September 12, 2021

Six U.S. senators, including Elizabeth Warren (D-MA) and Bernie Sanders (I-VT), have called on the Equal Employment Opportunity Commission (EEOC) to investigate allegations that Amazon.com Inc. fails to make adequate provisions for pregnant employees at its warehouses, citing “what appears to be a concerning pattern of mistreatment of pregnant employees at Amazon fulfillment centers.” As Bloomberg noted, the senators requested that the EEOC to investigate whether Amazon failed to protect pregnant workers from physically strenuous tasks that could have adverse health effects as well as whether the company has previously disciplined or retaliated against employees for pregnancy-related medical absences. Indeed, such practices may violate the Pregnancy Discrimination Act and the Americans with Disabilities Act.

In California, state legislators passed over a dozen labor-related bills in the last days of this year’s legislative session, including bills to improve warehouse safety, prohibit non-disclosure agreements covering harassment, as well as improve the state’s work-safety regulator’s enforcement capacity. As Bloomberg reported, the state legislature was scheduled to wrap up its work this Friday on hundreds of measures now before Governor Gavin Newsom for final consideration. Newsom, who also faces a recall election this Tuesday that may result in his removal from office, must sign or veto the bills by Oct. 10 regardless of the recall results.

As to the labor-related bills themselves, A.B. 701, passed by the state Assembly on Thursday, would prohibit warehouse employers from counting mandated rest, lunch, and bathroom breaks against a worker’s productivity quota. S.B. 606, which state senators passed the same day, would make it easier for Cal/OSHA, the work-safety regulator, to issue citations by permitting the agency to cite employers for violations at multiple locations without inspecting each individual workplace. Additionally, S.B. 338 would expand joint liability for companies that contract with employers that misclassify truckers who transport goods around the state’s ports, and A.B. 794 would condition truck companies’ receipt of clean energy subsidies on them meeting various labor standards. Lastly, amidst the swath of other labor-related bills working their way through the state legislature include a bill to expand the prosecution of employers who knowingly steal wages from workers (A.B. 1003) as well as a bill to heighten contractors’ liability where their subcontractors fail to pay workers on labor projects (S.B. 727).

In other news, over ten thousand production and warehouse workers across nine UAW locals at John Deere in Kansas in Iowa will vote this week on whether to authorize a strike. As Jonah Furman reported for Labor Notes, workers may have an edge since the company is apparently struggling to find enough workers to hire, and the seasonal timing of a potential strike comes just as farmers look to buy new equipment after harvest. According to Furman, health care looms large over current negotiations, since John Deere remains one of the few agricultural equipment companies that provides premium-free healthcare. 2021 is set to be John Deere’s most profitable year yet, and with its minimum starting wage at $15.14 an hour, as Furman notes, “there’s money to spend.”

Lastly, Jonathan R. Harkavy, who has taught labor and employment law at Wake Forest School of Law and corporate finance at Duke Law School and the University of North Carolina at Chapel Hill School of Law and has served as a visiting research fellow in the Labor and Worklife Program at Harvard Law School, has released his annual extended commentary on every labor and employment law decision rendered by the U.S. Supreme Court during its most recent term. As Harvaky warns, “this year’s opinions [betray] some disquieting rationales that could bode ill for employee rights, just as they may auger well for employer prerogatives.” Indeed, Harvaky aptly traces what he sees as “an unsettling thread of religious and moral liberty … that would excuse compliance with generally applicable laws” governing the workplace and beyond. Anyone with an interest in the potential “impact of these decisions on all stakeholders in the employment relationship, including working people, business owners, labor organizations and benefit providers” should read Harkavy’s commentary in its entirety.