Special problems of particularly vulnerable workers

It is a truism to say that some workers are more vulnerable than others. The strong protections that are offered by collective bargaining agreements put unionized workers at one end of the spectrum of protection.[1] Some workers facing hazards are at the extreme other end of the spectrum, facing serious hazards with troublingly little protection and little access to information. 

When looking at aggregate statistics, we can say that workplaces have gotten safer – although there is a substantial question to be asked about the accuracy of our data.  But, as you have learned, not all workplaces are getting safer. Injury rates in hospitals, for example, have not declined.  Injury rates in poultry and meat processing plants remain high.  Farmworkers still sometimes face sometimes brutal conditions. Day laborers on construction sites are exposed to numerous hazards that are not effectively regulated. As we move ahead to discuss legal protections against retaliation, remember that the most vulnerable workers are the least likely to raise complaints. 

These workers are not part of traditional unions. The jobs in which they work do not offer stable employment possibilities, are usually low paid, and are filled with people who are, in one way or another, particularly susceptible to pressures from their employers. They may be very poor; they may be undocumented; they may live in rural areas where alternative employment is not available; they may work in small franchises where the major associated corporation fails to take responsibility for working conditions; they may be (unlawfully) forced into independent contractor status, leaving them without the protections of the employment laws.  

When a particularly vulnerable worker faces potential retaliation for doing his or her job, s/he is likely to avoid raising the issue. Safety hazards and injuries go unreported; workers’ compensation claims are not filed.  In Massachusetts, the Appeals Court has upheld the right of temporary and staffing agencies to require the workers they hire to waive any rights they might have had to sue the host employer in tort when the staffing agency is providing workers’ compensation. See Molina v. State Garden, 88 Mass. App. Ct. 173 (Mass. App. Ct. 2014).

The current organizing of workers in low wage jobs is a direct response to the lack of formal unions and the weakness of any protections. You have already seen that worker advocacy groups are making creative use of the law with regard to OSHA inspections. Complaints about hazards at McDonald’s and employee requests to have non-union non-employee representatives accompany CSHOs during inspections are part of the overall strategy to increase participation by workers, even in the absence of formal union representation. And during the Covid-19 epidemic, Amazon and McDonald’s workers  actively pursued both organizing and legal strategies. More recently, there has also been growth of more traditional union organizing under the NLRA. 

For some of these workers, the problems are further exacerbated by the fact that they work in what has become known as ‘fissured’ workplaces.  Most notably, workers who are hired by staffing (or “temp”) agencies, and then sent to work at another employer’s worksite, face particular problems.  They are untrained; they are often immigrants; they do not receive necessary personal protective equipment; and they are subject to retaliatory actions by either or both of the employers.  If the host employer does not want someone around, then the temp agency will comply by discharging that person.

But creative advocacy is showing up in a variety of places and ways. For example, in the Florida-based Imokolee Workers’ Fair Food Program (a labor rights program designed to ensure humane treatment and fair pay for farmworkers in the Florida tomato industry), retailers agree to purchase from farmers who take “all necessary steps” to protect worker safety, including letting workers who feel endangered refuse work and implementing a system for work safety stoppages due to lightning, heat, chemicals, pesticides or other factors.  With regard to safety, the agreement includes rights to protective equipment, protection from excessive heat, breaks, training, and a right of workers to “offer their ‘input and perspective’ on safety and health matters to the farmers through a regular, structured mechanism.  See Stephen Lee and Chris Marr, Fresh Market Commits to Safety Rights For Tomato Workers in Fair Food Program, Occupational Safety & Health Daily, January 15, 2015.  The Fair Food Code of Conduct is available at http://www.fairfoodstandards.org/resources/fair-food-code-of-conduct/.

During the Obama Administration, the NLRB, OSHA, and the Wage and Hour Division of the Department of Labor were all attempting to address some of the specific concerns of these workers who face problems of nonpayment of wages, retaliation for concerted activity, and hazardous work.  In all of these situations, the agencies were attempting to ensure that the larger employers could be held responsible, frequently through the use of a “joint employer” doctrine that does not allow the employers to duck responsibilities under the federal laws.

These efforts did not continue during the first Trump Administration. In 2020, both the NLRB and the Department of Labor Wage and Hour Division issued final rules governing what it takes to prove that employers are “joint.” The explanation and the final NLRA rule were published in the federal register here; the explanation of the DOL WHD rule can be found here. These rules used a more stringent test for when employers will be considered “joint” than was being used during the Obama Administration. These formal rules require that the agencies go through formal rulemaking to rescind a rule. The DOL WHD was  formally rescinded; the final effective date of the rescission was October 5, 2021.

Not surprisingly, and again showing the effects of politics on workers' and employers' rights, the Biden Administration moved to reinstate some of the protections enacted during the Obama Administration. 

These materials were last updated in December 2024. What the second Trump Administration will now do in this area remains to be seen. 

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Footnote

[1] Public sector civil service workers also have considerable protection, which is strengthened yet more by collective bargaining in the public sector. Around one-third of public sector workers are unionized – in comparison to the six percent unionization rate in the private sector. Remember that some public sector jobs are quite hazardous – construction, health care and so on. Starting under the second Trump administration, however, there has been a considerable attack on the right of federal public sector workers to unionize and bargain collectively.