July 31, 2020
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The Berke-Weiss Law Weekly Roundup: While the Outlook Darkens, We Celebrate Some Small Victories

The clock has essentially wound down on extending assistance for the 30+ million Americans currently on the unemployment rolls. White House officials and Congressional Democrats remain miles apart, with the latter rejecting a temporary extension of the benefits. To say this puts an uncertain shroud over the coming weeks would be a massive understatement as unemployment numbers remain high, with new applicants increasing to 1.43 million, and states post record deaths and Deborah Birx and other federal officials warn of a coming surge in Midwestern states, including Kansas, Wisconsin, Ohio, and Missouri. There is some hope that if politicians can reach an agreement over continued enhanced benefits, they will be retroactive, but this is little comfort to people with mortgages or rent to pay. There are also huge question marks over issues we focus on, particularly child care and employment law, both of which were in the news this week and are the subject of several of the stories we feature. Welcome to the weekly roundup.

California child care workers vote to unionize

In many of our blogs about child care, one thing we are at pains to point out is how much domestic care relies on poor, often Black or Brown labor, whether it is a nanny, a housekeeper, or a entry-level worker at a daycare. The coronavirus pandemic has demonstrated how precarious these jobs are and how little workers in those respective industries get paid. However, this week was a bright spot for some of these workers in California. Last year, California Governor Gavin Newsom signed into law the right for child care providers of children in low-income families to collectively bargain, and this week those providers voted overwhelmingly to accept Child Care Providers United (CCPU) to represent them. CCPU is an organization built by SEIU and AFSCME. While this is a fantastic first step for child care providers, whose wages are so measly that they often qualify for government assistance themselves, there will be a difficult road ahead for CCPU. Budget cuts and Janus v. AFSCME both represent large obstacles for the fledgling union to overcome. 

Ride Hail Drivers Also Relishing a Victory This Week

Sticking with precarious work and partial victories, a New York federal judge this week ruled that Uber and Lyft drivers must be treated the same as other workers when it comes to unemployment benefits. The lawsuit was brought against the State of New York, which the plaintiffs, New York Taxi Workers Alliance alleged had taken months, rather than weeks, to provide unemployment assistance, and Judge LaShann DeAarcy Hall singled out Uber’s and Lyft’s egregious behavior in regards to avoiding the bare minimum of employment protections, such as minimum wage and state unemployment benefits schemes, which the companies have gone to great lengths to avoid paying into, arguing drivers are independent contractors. The two companies are currently pouring millions into a California ballot initiative which would solidify the companies’ position that drivers are independent contractors and help them avoid paying workers.

A History Lesson on Child Care

Finally, back to child care, The American Prospect has a long, fascinating article on the history of childcare in the United States. Sonya Michel reminds readers that we have faced this kind of child care demand before, during World War II, when women were conscripted into factory work. The federal government realized that for women to work in the industrial war effort, child care was necessary. In an attempt to address this issue, the federal government financed 3,000 child care centers around the country, which, as Michel describes, was inadequate. Michel’s history brings us to the present where a similar issue confronts politicians. The CARES Act, too, has language calling for the stabilization of the childcare market as “essential” workers are required to remain at work despite public school and child care facility closures. The question is, will we once again allow child care to slip down the hierarchy of concerns, as we did after WWII, or will politicians and the American people realize finally that free, universal child care, not market-driven privatized care or means-tested, strings-attached aid, is essential for society? We can only hope.

The Week in FFCRA Complaints: Yet More Wrongful Terminations and Retaliation

August 10, 2020
Leave
Disability Discrimination
As we noted last week, employers seem not to have gotten the message on paid leave under FFCRA and the two notable cases that came up this week both involve employer retaliation and wrongful termination against employees who were protected under FFCRA.

The Week in FFCRA Complaints: Employers Do Not Seem to Understand Mandated Worker Protections

July 31, 2020
Leave
Disability Discrimination
t is starting to seem, from our perspective, that either employers have not been made sufficiently aware of the leave entitled to workers under the FFCRA or that they are willing to risk a lawsuit for wrongful termination.

With the HEALS Act the Fight over Pandemic Lawsuits Takes Center Stage

July 30, 2020
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Earlier this week, Senate GOP leadership introduced their $1 trillion opening response to the $3 trillion Congressional HEROES Act, originally proposed in May. As we have noted, the signal demand coming from Mitch McConnell’s office is liability protection (the “L” in HEALS) for businesses and health care organizations. Translated, McConnell wants to prevent workers from suing employers if they contract coronavirus at work. And the GOP appears firm that without consensus on this issue, there will be no new stimulus.

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