Saturday, March 28, 2020

Covid-19, Strikes, and Intentional Employer Misconduct: A Descent Into the Maelstrom?

I have recently been working on a law review article about work stoppages and strikes in the “new” economy. Some readers may not be aware that Section 7 of the National Labor Relations Act protects the right of both union and non-union employees to engage in concerted activities for their “mutual aid or protection.” The lead case involving non-union employee protection, Labor Board v. Washington Aluminum Co., concerned employees who walked off the job claiming their workplace was too cold (the facts arose in wintertime Baltimore). The employer fired the employees for striking, but the U.S. Supreme Court ordered the employees reinstated. While the employer could lawfully have “replaced” the employees during the walk-off, it could not lawfully fire them.

With increasing reports of strikes, see here, here, and here, generated when employers order employees to work amid real or imagined Covid-19 fears, the principles of Washington Aluminum are likely to become highly relevant. One of those principles is that fear of dangerous working conditions does not have to be “reasonable” for concerted work stoppages prompted by it to enjoy protection; the fear just has to be held in “good faith.” I’ve written a short piece on Washington Aluminum principles that is available here.

One complication in this area involves work disputes between companies and their putative independent contractors. Independent contractors who strike arguably violate antitrust law as a “conspiracy in restraint of trade.” As Professor Sanjukta Paul of Wayne State University Law School has observed, the threat of FTC prosecution of antitrust law violations committed by independent contractor-workers is real (it has been deployed, for example, against workers in the deregulated trucking industry). This is a very complicated area of law likely to cause great confusion. For example, I read today about a threatened strike by Instacart workers scheduled for this Monday (3/30/20) over hazard pay and safety gear. It would not surprise me to see FTC activity should that type of protest activity become widespread and I am quite concerned about the potentially severe liability relatively unsophisticated workers might be walking into. (I agree with what I understand Professor Paul to be arguing – it is high time that we reassess, once again, the relationship between antitrust and labor law. Do we really want to punish peaceful labor activity?)

Workers’ compensation is implicated in this maelstrom. Some front line employees are clearly signaling to their employers that they believe Covid-19 has rendered their workplaces ultrahazardous. If subsequent expert opinion and adjudication agrees with employees’ assessments, will employers forcing employees to work have engaged in “intentional” or “serious and willful” misconduct opening themselves up to payment of enhanced workers' compensation benefits or tort in the event of Covid-19 illness found to be work-related? One wonders if this complicated liability picture—in addition to “bubbling” wildcat strikes—was behind the decision of the Big 3 auto manufacturers to temporarily scale back auto production until March 30.

Michael C. Duff

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