Answering Your Questions On Workers Rights

As we continue to navigate these unprecedented times, KCBS Radio is getting the answers to your questions about the coronavirus pandemic. Every morning at 9:20 a.m. Monday-Friday we're doing an "Ask An Expert" segment with a focus on a different aspect of this situation each day, sponsored by the San Francisco Police Department.

Today we’re looking at labor and your rights in the workplace as people begin to head back to work with Michael LeRoy, professor of labor and employment relations at the University of Illinois at Urbana-Champaign. 

So let's start with a big picture sketch here, if you would. From where you sit, what have we learned? What laws that were already in place apply and where are the weak spots in our national system of worker protection and workplace law?

Well, the most obvious weak spot is our unemployment insurance system. It's a complex system. It's funded mostly through a federal tax that is put out to states. We've never had 30 million first time filers in the space of five or six weeks, so it's literally straining the system. 

One of the most intriguing and disturbing aspects that is becoming apparent is, there is a general requirement that people actively seek work in order to maintain their unemployment benefits. Some states are requiring people to work under dangerous or at least risky situations or terminate their benefits. And that's troubling because you're forcing people to choose between maintaining a lifeline to income replacement, or become seriously ill and/or infect others.

So let's broaden the issue a little bit here and talk about how workplaces are changing. Obviously, some of this is under mandate, right? If you're running anything in the Bay Area right now and you were open, you have local public health dictates to tell you how you have to run it. Is that the case everywhere?

It's not the case everywhere. I mean, it's a very fragmented picture. So we've got this unfolding national experiment where those who say the economy has to be restored to normal have a looser set of restrictions - and there are predictions, of course, of a rapid resurgence - and others that are taking it slow and carefully. But in any event, individuals have to make hard choices in all of that. It's not even something that unions can readily address, although with the meat packing industry we're seeing a union speaking up and shining a light on the difficulties that are emerging. But at the end of the day, it's hard for a union to assert itself under those conditions.

All right, well, let's get to a few specific questions. And again, you can send in your questions to askus@kcbsradio.com

My daughter works for a nationwide restaurant chain at a location outside California. Her state is one of the ones that's reopening and while she's on furlough, she's afraid she'll be called back into an unsafe situation. What are her rights?

In many states we have employment at-will. So it depends on the state, but my guess is she's an employee at-will and if she doesn't answer the call she could be terminated simply for not showing up. 

In states such as California, there are much stronger limits against automatically terminating somebody under those circumstances. So it's a great question. You know, it depends on the state. I would just say, Google if you can, whether your daughter is an employee in an at-will state and that should lead to a further line of information for your daughter.

So let me follow up on that. My question would be then, if someone in a situation like that said, “look, I don't think this is a safe place to go back to work.” What do they become?

They're really at the mercy of their employer. You know, hopefully there's some way to dialogue with the employer, and instead of making it an all or nothing proposition, to talk about mitigating factors. I mean, can you wear a mask, yes or no? Can you shift your hours to be at a less busy time at work? Those are two basic questions. So you know, I hope employers and employees just won't hit the automatic button and will just talk about it. You might find that there are solutions. 

Another solution is, can I just take three or four weeks off and let's see how things settle out? Just in the past two or three days, more and more employers are in the news essentially asking their employees to take a voluntary furlough. And you know there's something good about that in that it still preserves the employment relationship. It pauses it. The employer gets a respite from making payroll. The employee gets a little freedom to make a choice about their health. So, in general, I would say, trying to have a dialogue before you terminate somebody or before you say, “I can't do anything.”

And that actually kind of leads to the next question. This one from a listener says, I'm on furlough. Does that mean I qualify for unemployment or do I have to be dismissed?

You do qualify. It depends on what state. I assume it's in California. It depends on the length of the furlough. Generally, a short term furlough does not qualify. Likely the situation that the caller is talking about is a situation where unemployment is available. So I would go on the state's unemployment website and look at that standard, but it's not just for terminated people. It's for long term furlough and long term furlough can be a period of weeks. It doesn't have to be indefinite.

I drive for Uber and Lyft. Under California's AB5 law am I now an employee? Or has that been settled yet?

As far as I know, it has not been settled and AB5 is in effect and therefore the protections you have under it are applicable. But this is a very dynamic situation and I'll be candid, it's been a couple of months since I looked at it, so that’s a tentative response.

Ever since shelter in places started, I have not been able to do traditional Uber rides. I live with my parents who are approaching 80 and didn't want to risk bringing home the COVID-19 virus. Instead, I've been doing Uber Eats, which has less personal contact. My income for the last six weeks has averaged about $1100 a week before taxes and expenses. I have to work 70 to 90 hours to get this. I can't keep doing this; it isn't healthy for me and I'm sure it's hurting my immune defense. If I start working only 40 hours a week, will I qualify for unemployment to help make up the difference? Should I apply for traditional unemployment or this new version for gig workers?

To the best of my knowledge - and first of all I appreciate the dilemma this person is in, it's an awful situation - to the best of my knowledge you do not qualify for unemployment. However, the safest way to figure that out is to literally go on the website and just start searching. And I know that's not as helpful as being definitive, but I don't want to give incomplete or wrong information. If you have partial income, generally you do not qualify for unemployment.

For people who have exhausted their regular 26 weeks of unemployment insurance and are now waiting for the 13 week extension as part of the CARES Act, is the PUA program for them, or do they need to wait for the State Employment Development Department to update the pandemic emergency unemployment compensation program?

Yeah, to the best of my knowledge the federal legislation is extending the benefit period. By the way, the complexity and the scale of this is such that even administrative folks who are in this day in and day out are overwhelmed in figuring out, when does the money come in? What are the exact parameters? But to the best of my knowledge that does continue.

I would also offer a historical comment. In the recession of 2009 we actually had a series of federal extensions that extended unemployment benefits to 99 weeks, which was a historically large figure. So we have a precedent for extending well beyond the 26 week period, well beyond the 13 additional weeks. So I do think that money has kicked in as a supplement to the 26 weeks and I would look forward to continuing extensions.

I'm a 62 year old construction worker and being told to go back to work. As you may know, the relaxing, somewhat, of the Bay Area shelter in place order kicked in yesterday and so now many more job sites, construction jobs, are back open. I don't feel safe. Do I have to go back due to my age?

Oh, that's a great question. Well, unless your employer has specifically mentioned something about age, they're not on the hook for age discrimination. The caller is pointing out just a basic fact of COVID-19, which is that older people are more at risk for becoming infected and having a serious infection in the process. So that's going to be a very hard personal choice to think about. If we're talking about construction, not all construction work has union representation but a lot of it does. I would check my collective bargaining agreement. If I'm covered by a union I would ask my business agent, what are my rights under the CBA? 

And apart from that, again, I want to revert to an earlier answer I gave. And I realized that employees can't say, “hey, look, let me just suggest the following.” That caller is probably saying, “I have to be here at 7 a.m. and that's the deal.” But again, you could talk about, you know, what kind of distancing do we have? Can I be put somewhere on the project where there's a little more distance? And that's certainly not the full answer that this caller is looking for. But instead of just freezing in place and saying, “I've got a binary decision, yes or no” and so forth. Take a moment and think through, what could make this a little better, a little safer and is there a conversation to be had around it?

Let me ask you parenthetically, because I know you're fascinated by the evolving law. So we've heard since day one of the pandemic there are higher risk groups: older Americans, people with underlying medical conditions. We have in American law a whole series of protected categories. Will we see something new emerge from this, do you think, around these higher risk categories?

Oh, that's a great question. I'll tell you, just to ease into this answer, I'm curious to see how worker's comp claims are settled, are treated. So the first point of entry for me is what's going to happen when, for example, an emergency room nurse has had a very serious injury related to her occupational exposure to COVID and she applies for workers comp benefits? Are they going to be granted or is the employer going to contest it and say, “gosh, we don't know if you got it here, you could have gotten it anywhere, on the Uber ride home or something like that.” 

And the point I'm getting at is, you're right we have these protected groups, these protected categories, and they do cut along age and disability lines. But they're also cutting across occupational lines. So we have a whole new set of emerging categories of workers that we never thought of as vulnerable. So the 22-year-old store clerk, the caller who said her income is dropping by half because she's trying to protect her parents from becoming ill.

Now with respect, to confront the age issue that you are describing, I would say just a quick pass over this: under the federal age discrimination law, there's a large employer defense called reasonable factor other than age. So hypothetically, let's say an employer says, “I'm calling back my workers who are in a low risk group.” No employer should say a given age limit, that's just a bad idea. But let's just say I'm looking at folks who are in the lower risk groups, and that's how I'm calling people back to work: that looks like a discrimination. It is a discrimination. But there's this element called reasonable factor other than age, and that provides a safe harbor for employers in a wide range of situations, including this emerging one. 

Okay, let's get through a few more here before we wrap this up. My husband is self employed and his income has decreased by about 50%. Can he benefit from the federal program or does he have to lose all income to qualify?

I don't know, because I don't know where these thresholds are set. I wish I could give you more, but I don't know. But take a look at the unemployment insurance website. 

And just to add, I was on it this morning for California, and I got the impression that they're having trouble keeping up. And parenthetically, I would note, the state Department of Labor is hiring, if people are looking for a job (laughs). It just speaks to how crazy these times are, the state Department of Labor is actively hiring because apparently they can't keep up with all the work that's being dumped in their laps.

Yeah and that website is EDD.ca.gov. The site is up and running but sometimes the information is hard to find, I’ll agree with you on that next one. 

Next one: I'm in California. My employer in health care is recalling employees to come back part time. Would I still qualify for unemployment? What rights do I have if I don't want to go back to work? 

I think we've touched on some of this, but the specific issue of a part time call back.

Yeah, so generally speaking, part time employment does not qualify for an unemployment claim. There has to be a severance of work and/or we have the furlough question; those are the two types of situations. Now you could get into situations where you say, “yeah, but I'm getting six hours a week so that's hardly employment.” But again, there tend to be definitions around termination and/or layoff and furlough that are clearly defined. So if you're in a part time situation, very unlikely that you qualify for unemployment benefits.

And I think we've got the last one here.

My mother broke her hip last fall when I asked my employer, Amazon Prime Now, if I could take an unpaid leave for a few months to take care of her. They said I don't qualify because I'm a flex employee. My mother recovered. I managed to keep my job. 

Now I'm faced with a similar problem. My mother's now diagnosed with terminal cancer in February, right in the middle of the pandemic. I'm forced to be her caregiver because I fear an outside caregiver other than me might give both of us the virus or that I might bring it back home if I got infected at work, given Amazon's track record so far. I was unable to work starting February 25th, Amazon did extend the time needed to April 30th, now passed. Which unemployment should I apply for, pandemic? Regular? Other? Or do I qualify for any?

Well, I assume this person lives and works in California, and if that is the case our caller should be looking at the California Paid Family Leave Act. California has a remarkably good law by the fairly weak standards that America has relative to Europe. But as I understand it, California has a six week Paid Family Leave Act that appears to apply to this situation. There has to be a serious illness, and the employee is a caregiver, and the first place I would look would be to invoke your rights under the California Paid Family Leave Act.

Okay, and it turns out there was one more, I lied.

I work for a supermarket chain that is providing 14 days of sick time. What do I do if I need more than the 14 days?

Well, ah, great question. Let's not forget about the laws that we have in place that we know something about. We have the FMLA - Family Medical Leave Act - and so that that obligates an employer to provide up to 12 weeks of unpaid leave. 

Now, in California, there is a state law that requires 24 hours or essentially 3 8-hour work shifts of paid time off. So again, I would first do the California paid three days off - and by the way, the employer might say, “you got that with your 14 days so we're satisfied.” The employer could say “we gave you 14 paid days” and my response to the employer would be, “okay, now let's talk about family and medical leave that I need.” And it's not automatic. You need to have a serious medical condition yourself or be caring for a close family member. But I would look at the FMLA. And you can look at that on the US Department of Labor website.