By: Nadia Abed & Melissa Berouty
3Ls at Syracuse University College of Law
Terri Gerstein is the Director of the State and Local Enforcement Project at the Harvard Law School Labor and Worklife Program and a Senior Fellow at the Economic Policy Institute. She recently completed an Open Society Foundations Leadership in Government Fellowship. Previously, she was the Labor Bureau Chief in the New York State Attorney General’s Office and a Deputy Commissioner in the New York State Department of Labor.
Prior to her government service, Terri worked at nonprofit organizations in Miami, representing immigrant workers and domestic violence survivors, and co-hosting a Spanish-language radio show on workers’ rights. She was a law clerk to the Honorable Mary Johnson Lowe in the U.S. District Court for the Southern District of New York, and she is a graduate of Harvard College and Harvard Law School. Her writing on workers’ rights issues has appeared in publications including the New York Times, the Washington Post, NBC News Think, Slate, the Guardian, Morning Consult, the American Prospect, the Hill, the Nation, and the Daily News, among others.
Email address: firstname.lastname@example.org; Twitter handle: @TerriGerstein
Did you always have an interest in worker’s rights?
GERSTEIN: In law school, I knew I wanted to go the public interest route. I spent a year between undergrad and law school in Mexico. This experience led me to want to work with the immigrant community. I also spent a summer interning at a worker’s center on Long Island that worked with immigrants, mainly from El Salvador. This is really what drove me to pursue a career in worker’s rights. After I graduated law school, I got a fellowship and worked for a few years in Miami at nonprofits. I always knew I wanted to use my legal training to achieve social justice in some way. It wasn’t until halfway through law school that I landed on the particular area of workers’ rights.
Later in my career, I began working in government for the New York State Attorney General’s Office in the Labor Bureau. Honestly, when I went to law school, I did not see myself doing government work. I thought I would be a legal services or nonprofit lawyer. However, I ended up working at the Attorney General’s office during an administration that was aggressive in ensuring worker’s rights.
Can you elaborate more on your time working at the Attorney General’s Office?
GERSTEIN: I loved the teamwork aspect of government work. Government work differs from academia and nonprofit work in that when you’re working for the government, you don’t get any credit. The elected person above you gets the credit for everyone’s work. Additionally, you do not have to fundraise, as it’s public work and paid for out of the public budget. This structure—no fundraising and nobody gets credit—encourages collegiality, teamwork, and a focus on the greater mission.
In my opinion, people who are self-promotional in nature would not do well in government work. (This may not be universally true, but it’s been my experience. I have been lucky to work in really great administrations.)
One benefit to government work, if you’re advocating for disempowered people, is that at the end of the day, people call you back when you are calling from the Attorney General’s office. Thus, you have the ability to really bring the power of the government’s office to bear on the problems that working people and those who often do not have power are facing. And you have the ability to address structural problems instead of being limited to individual cases.
What has the pandemic revealed to you about worker’s rights in the United States?
GERSTEIN: Honestly, it has not revealed much to me. I was already aware of the lack of power that workers have, the impunity that too many employers operate with, the disparity of power between employers and workers, the precarity of so many jobs, and the lack of protection from retaliation. I was already very aware of all of these pressing issues.
But it’s a situation where I would get absolutely no pleasure from saying “I told you so.” We knew these were problems. We knew that workers were disempowered. We knew that there were not enough enforcement resources for workers.
One thing that has been new for me is the focus on workplace safety and health. I always worked at a state level in New York, and the Occupational Safety and Health Administration (“OSHA”) has primary authority for enforcement of health and safety in the private sector. At the state level, we didn’t really have as much expertise in this area. Five years ago, we talked about wage theft, worker misclassification, or a whole host of other issues, but not as much about workplace health and safety. I think that this issue has really skyrocketed to the forefront of everyone’s attention because of the current health crisis.
With this, something that has horrified me is the extent to which companies are so cavalier about people’s health and safety. Frankly, I do not know how some of these corporate decisionmakers sleep at night. People are not machines. People are not things. People are unique and irreplaceable. Even if you do not know them, their families love them and they are human beings. The idea that some of these companies have been so utterly cavalier and callous about this – still leaves me speechless. I knew it was bad, but I did think there was a little bit more respect for basic human life.
Do employers have a general duty to ensure workplace safety? With this, do employers have a duty to protect their employers from contracting COVID-19?
GERSTEIN: OSHA has a general duty clause. This entails a duty to provide a workplace that is free from known hazards that could cause fatality or serious injury. In addition to that, there are standards. A standard is a rule that is passed by OSHA that relates to a particular workplace hazard. For example, this could include fall protection or the handling of a particular chemical.
Under the general duty clause, employers have an obligation to provide a workplace where people are not going to be exposed to a foreseeable risk of COVID-19.
In terms of a specific standard, there has been real pressure on OSHA to pass an emergency COVID-19 specific standard. The AFL-CIO filed an unsuccessful lawsuit against OSHA trying to force them to do it. The state of VA passed a standard filling in that gap from the federal government. Additionally, Oregon published a draft emergency standard. [NOTE: in the time since our interview, California also announced its intention to enact a COVID-specific workplace safety standard.]
OSHA has issued substantial amounts of guidance to employers. However, the guidance uses language like “employers should strive to” and “if feasible.” The language used is not really anything that is enforceable, but rather just advice.
There was a recent report by US Department of Labor Inspector General about OSHA’s insufficient handling of whistleblower complaints. In response, OSHA said that it had processed 50% of the COVID-19 related complaints. This means that half of the complaints of individuals who have been fired after complaining of work safety and health have not even been addressed yet.
A number of states and localities have really stepped up to the plate and have been taking action: issuing Executive Orders, passing laws, and taking enforcement actions to protect workers. Some have been very serious and aggressive about trying to fill the void left by OSHA’s inaction.
Do workers have any rights or protections if they need to stay home because of COVID-19 related circumstances?
GERSTEIN: The federal Families First Coronavirus Response Act does offer some paid sick leave and paid family leave. In addition to this, unemployment insurance is administered through the state and each state passes its own set of rules. There are some states that have been flexible in their unemployment rules, in terms of permitting people to get unemployment for a variety of reasons, including COVID-related. However, some states have not been as liberal in this way.
Additionally, there are some states and localities that have paid sick leave laws in place. The new federal law offers some protection, but it exempts far too many people. For example, it exempts employers with over 500 employees. Again, some states and cities have filled in this gap while others have not. So the answer to this question goes back to the typical law school answer, “it depends.” Here, it really depends on what city and state you live in and the size of your employer.
Following up on our previous question, do you believe that these protections are adequate?
GERSTEIN: No, not at all. People need to have comprehensive paid sick days and paid family leave. Even before the pandemic, we were so far behind every industrialized country in this area. There was already a large gap before COVID-19 and now the consequences are very clear to ordinary people in a way that they previously had not been.
In terms of enforcement, the resources are very inadequate and have been for some time. The resources have also atrophied. The Trump administration has not filled many OSHA positions because of attrition. The agency has existed for over 50 years. I believe that the staffing level is at its lowest since its inception.
Additionally, there have been several issues with the unemployment system. Aside from the policy question of what it covers, there are serious administrative issues with the unemployment system. These systems are not set up to assist the millions of individuals that are now applying as a result of the pandemic. They were set up to handle a fraction of that. Again, states have a real opportunity to improve access to unemployment, in addition to paid leave.
Recently, we have seen stories of workers in the gig economy being impacted by the pandemic. You spoke of the OSHA general duty to offer a safe work environment. Does this same standard apply to independent contractors?
GERSTEIN: This is one of the major problems with the misclassification of workers as independent contractors. All of our workplace laws cover employees and not independent contractors. This applies to everything from minimum wage laws to workers’ compensation laws. Paid leave and safe workplace guarantees are issues that have been very salient during the pandemic.
A company that has employees has a duty to provide a safe workplace. But this doesn’t apply for independent contractors. Some of these gig economy companies have made a big show saying “we gave masks to our drivers/shoppers.” Setting aside the fact these companies have given workers one or two flimsy masks…if they were employees, it would be a legal obligation to provide protective equipment and a safe workplace. This would not be considered an act of generosity or benevolence. Similarly, with paid sick days, it would be a right under the law. The fact that misclassified workers do not have these protections was a problem before the pandemic, but again the problem is more stark now. It’s very important for government at both the state and federal level to crack down on the illegal treatment of workers as independent contractors when they should be employees with all of the related protections.
Is there any particular group of workers that you feel are most at risk for poor working conditions during the pandemic?
GERSTEIN: There is a lot of vulnerability in the health care sector, like workers in hospitals and workers in nursing homes. Additionally, workers in various parts of the food chains like farmworkers, meatpacking, and warehouse workers have all been at a very high risk. Immigrant workers are particularly vulnerable for a variety of reasons. Additionally, undocumented workers are even more at risk given a fear of deportation.
The health risks are also borne by workers who deal with the public a lot. In the early stages of the pandemic, there were a lot of transit workers who were impacted. Obviously, the spread of COVID-19 in the prison system is a huge criminal justice issue, but also the working conditions of correction officers creates a workplace issue as well.
Also, the concern arises as schools at every level have begun to reopen. This has created a big area of concern for teachers, teachers’ unions, and students. I have a sister who is a seventh-grade public school teacher. Honestly, I worry about her.
What do you think the most pressing issue in worker’s rights is right now?
GERSTEIN: There are both short-term and long-term ways to answer this question. Short term, OSHA should issue a temporary emergency standard. If OSHA does not do this, states should do so. OSHA should start aggressively enforcing the law and publicizing it. If OSHA does not do this, states should do everything they can. OSHA should also staff up.
At the end of the day, keeping people safe is important because they are human beings. It is also important if you want to reopen the economy. Unless this gets dealt with in a serious way, COVID-19 spreading through workplaces does not help with reopening in a lasting manner.
Longer-term, there needs to be a recalibration of the balance of power between workers and employers. It needs to be easier for workers to organize into unions. We also need to address corporate concentration and monopsony. The extreme power of corporations is to the detriment of worker power and leaves workers in a difficult position.
Short term, we need to focus on workplace safety in a very intense and concentrated way. Long term, changing the power dynamic is what needs to happen.
This interview has been condensed and edited for length and clarity.