July 24, 2020
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The Berke-Weiss Law Weekly Roundup, PUA Running Out, Why It Took So Long to Recognize the Child Care Crisis, and New Workers Councils

This week marks a significant juncture for the US. For starters unemployment numbers began to tick back up due to reversals in many Gulf Coast and western States where the pandemic is now racing unchecked, even as the president and formerly reluctant governors mandate masks. Testing delays have, in many cases, rendered them useless, as people wait up to two weeks for results. California now has more recorded cases of coronavirus than any other state, surpassing New York and hospitals have almost as many patients as there were in April when the Tri-State area was being devastated.

Yet, while workers are returning to the unemployment lines, GOP leadership wants Pandemic Unemployment Assistance (PUA) to end, fretting that workers are refusing to return to work because they are getting paid more to stay home, not because there is a global health crisis that few workplaces can safely combat at the moment. Indeed, mounting evidence suggests social distancing, especially remaining at home, was a key factor in slowing the virus and the United Nations this week floated the idea of providing a Universal Basic Income (UBI) to the world’s poorest people to increase compliance with social distancing, allowing them to remain home without having to fret about rents and food.

So, while talks about a new stimulus look like fracturing whatever goodwill remains between GOP Congressional leadership and the White House and the Senate ignores the House’s own $3 trillion HEROES Act, the threat of defaults on everything from mortgages to car loans as well as a massive wave of permanent business closures looms. Already, in some states eviction proceedings have started, with landlords in Arizona, Texas, and Nebraska already trying to circumvent federal eviction moratoriums, which are due to expire at the same time as PUA winds down. 

All this, of course, will be amplified by the myriad other facets of this crisis, including many of the ones we have spent all spring blogging about.

Why Weren’t We Worried about the Child Care Crisis Sooner?

As Clare Malone describes it, “America is a little matryoshka doll of panic right now; pop open each layer to reveal a new, worrying scenario.” Writing in FiveThirtyEight, Malone wonders why it has taken federal officials this long to realize that child care was such an essential part of economic recovery, without which, parents will be stuck working two jobs or be forced to leave work in order to take care of children. Instead, the president has threatened that federal funding could be withheld from school districts that do not open in-person teaching in the fall, and this has crept into the discussion of the new round of stimulus currently stalled as Congress’s summer recess inches closer. One hopes that this spring might finally make unwaged care and low-wage domestic work a top-line issue for politicians. If not, you can always hire in-home private educators and gym teachers starting at $50 an hour. That is, if you can afford it.

Who Decides When a Workplace Is Safe Again?

Republicans continue to hector about how PUA incentivizes Americans to sit at home getting a government check rather than work low-wage jobs in hazardous conditions. American workers, such as teachers, warehouse workers, grocery store cashiers, and a host of others might beg to differ. So, as US labor law offers little in the way of worker safety or security in this crisis and OSHA vacates its responsibility to protect workers by developing pandemic-related guidelines or monitoring workplace safety, workers are seeking alternatives. One appears to be taking shape in Los Angeles County as the county board of supervisors approved worker’s health councils with the ability to monitor workplace safety and compliance. The county board has been so inundated with complaints over workplace safety, and with lobbying from local unions, the supervisors authorized the creation of worker councils that could monitor workplace safety and develop guidelines in consultation with rank-and-file workers. Who better to determine when it’s safe to return to work?

The Week in FFCRA Cases: Judge Invalidates DOL Implementation, Expanding Eligibility

August 18, 2020
Disability Discrimination
Leave
The complaints we found relevant this week are eerily similar—parents who need to take care of their children, some of whom are immunocompromised, are being denied telework or leave or are being terminated. Further, we are continuing to see plaintiffs who voice concerns to their employers about workplace safety being terminated after doing so.

Federal Family and Sick Leave for Covid-19 Expanded by New York District Court

August 14, 2020
Leave
Paid Family Leave
Pregnancy Discrimination
FMLA
S.D.N.Y. Judge Paul Oetken invalidated parts of the Department of Labor’s interpretation of the Families First Coronavirus Response Act in a lawsuit brought by New York State Attorney General Letitia James.

New York State Human Rights Law Invoked in Sexual Harassment Arbitration Case

August 11, 2020
Sexual Harassment
A split has appeared in how to handle sexual harassment cases with a New York trial judge ruling recently that the state’s Human Rights Law prevents companies and employees from entering arbitration over sexual harassment. This contradicts an earlier ruling in New York’s Southern District where a judge ruled that arbitration under the Federal Arbitration Act (FAA) supersedes New York’s statutory prohibition against arbitration.

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