Labor Unions And Workers’ Rights During COVID-19

Labor Unions are the cornerstone of democratic society, as the freedom of workers to join together in unions is widely recognized as a fundamental human right across the globe. Under The National Labor Relations Act, it is forbidden for employers to interfere with, restrain, or coerce employees in the exercise of rights relating to organizing, forming, joining, or assisting a labor organization for collective bargaining purposes, or from working together to improve terms and conditions of employment, or refraining from any such activity.

However, the pandemic brings new problems with employment, redundancies, and violation of the conditions regarding the length of the working day due to remote work. Consequently, the work of unions regarding protecting rights has shown their important role, or not? Our PR  labor attorney Jay Sabin discussed the trending situation with Labor unions and special protection workers’ rights during COVID-19 to prepare this material.

Jay Sabin is a seasoned Labor and Employment attorney at Brach Eichler with extensive corporate experience as in-house counsel to a New Jersey-based third-party logistics provider and The New York Times. He has years of experience working with unions as well.

Employee rights are regulated primarily in the United States at the federal level pursuant to the National Labor Relations Act, a law that was enacted in the early 1930s. So there is approximately 90 years of case law under this statute. The law is administered by the National Labor Relations Board.

One of the main rights protected under the federal labor law is the right of employees to join together for mutual aid and protection regarding terms and conditions of employment. Thus, with or without union representation, employees have a federal right to be united and to present concerns to the company in a collective fashion for mutual aid and protection. Another important right is to have a union as representative of employees, which helps the union to implement its duties.

The pandemic has raised a number of issues implicating employees’ collective rights:

  1. The terms and conditions of remote work. 

For employees represented by a union, if the company intends to change a term or condition of employment, either the company has to provide the union with an opportunity to negotiate over the proposed change, or the change has to be authorized under an existing collective bargaining agreement. An exception to this general rule is for exigent circumstances, and employers – particularly at the inception of the pandemic – had to assess whether the pandemic constituted an exigent circumstance and if so, to what extent was the duty to bargain superseded.  Even with exigent circumstances, there is an ongoing obligation to bargain with the union over the particulars of what it means to work remotely and over the impact on employees of working remotely. 

  1. Obligation to share workers’ health information. 

It is not uncommon in a labor contract to obligate an employer to share certain health information. The pandemic heightened unions’ interests in obtaining more detailed information and receiving that information in real time, not months later.  

  1. Discussion about conditions for returning to the workplace. 

As state and local COVID restrictions were relaxed beginning this Spring, unions and employers discussed return to work issues, including how requests for remote work would be handled, and whether an employer will require frequent testing and/or vaccinations.  

  1. Provision with all necessary conditions for remote work.

During the pandemic, there was a need for technology to facilitate remote work. For those employees who could not work remotely, employers had to provide personal protective equipment. Unions and management negotiated over what types of employees could work remotely and, what types of PPE would be provided.

Unions took additional steps during the pandemic to protect worker rights, such as:

  • Petitioning OSHA to develop an emergency safety standard, and 
  • Suing on behalf of employees for safety protections under state law.

Unions give workers a real voice and leverage, which is essential for fair justice. During the crisis, unionized workers have been able to secure enhanced safety measures, additional premium pay, paid sick time, and a say in the terms of furloughs or work-share arrangements to save jobs. Nevertheless, COVID-19 stressed out hidden problems of labor legislation, which spurred a great need for future change.

The article was prepared by Inna Ptitsyna, the PR Manager at Lawrina, the legal portal that provides free access to U.S. law and builds a community around lawyers. She is also an ambassador at the Legal Hackers international community that explores and develops creative solutions at the intersection of law and technology.

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