Goldman Sachs made employees tell them their vaccination status, and your employer could too. Labor lawyers explain what rights employees have.

pregnant covid vaccine
A health worker administers a dose of the Pfizer-BioNtech COVID-19 vaccine to a pregnant woman at Clalit Health Services, in Tel Aviv on January 23, 2021.

  • The EEOC says employers can require employees get a COVID-19 vaccine or ban them from the office.
  • Goldman Sachs is one of the few companies requiring workers to disclose if they are vaccinated.
  • California healthcare workers must either provide proof of vaccination or agree to testing.
  • Visit Business Insider’s homepage for more stories.

California will require state healthcare workers to get vaccinated or tested, the Department of Veterans Affairs became the first federal agency to require the shot, and Goldman Sachs will require US employees to report their COVID-19 vaccination status. Other bosses could do the same thing.

Employers can legally require employees get a COVID-19 vaccine or ban them from the office, the Equal Employment Opportunity Commission (EEOC) said in a recent guidance.

As just over 50% of people in the US have received at least one dose of a COVID-19 vaccine, workers are asking: Can my boss legally require that I get the COVID-19 vaccine?

California healthcare workers must provide proof of vaccination by August, or mask up and undergo COVID-19 testing. Goldman Sachs previously gave workers the option to disclose if they’d been vaccinated, allowing them to work maskless in offices if they reported that they were vaccinated. The disclosure is no longer optional. All employees must tell the company what date they were vaccinated and what brand, though they don’t need to provide proof.

Read more: Employers are flooding labor lawyers’ inboxes to ask if they can make a coronavirus vaccine mandatory in the workplace. Here’s the advice 6 lawyers are giving clients.

Business Insider spoke with six labor and employment lawyers about whether workplaces can make coronavirus vaccinations mandatory for their employees.

Can bosses make a coronavirus vaccination mandatory at the workplace?

Workers likely first want to know what exactly their employers can require of them. In short, yes, employers can make vaccines mandatory, Jimmy Robinson, managing shareholder at the L&E firm Ogletree Deakins’s Richmond office, told Business Insider. He also mentioned that there would need to be religious and medical accommodations, with specific requirements varying by state and locale.

Karla Grossenbacher, chair of Seyfarth Shaw’s L&E practice in Washington, DC, said that employers would have to comply with the Americans with Disabilities Act (ADA). The ADA says that employers can require medical exams and vaccinations of employees under certain, specific conditions, like for healthcare workers, or if it poses a “direct threat” to the person if they are exempted, Grossenbacher said.

The EEOC, which enforces civil rights laws against workplace discrimination, has categorized COVID-19 as a direct threat. This designation allows employers to require temperature takes, masks, and social distancing. The federal agency has clarified that employers can mandate vaccination for employees, saying, “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” Medical examinations, including COVID-19 antibody testing, are not limited by the EEOC.

There are still many questions lawyers don’t yet know how to answer.

Workers have other questions about what employers can ask of them, too.

Nathaniel Glasser, a partner at Epstein Becker Green, said his clients are asking if they can restrict employees from attending large gatherings, or if employees can be required to come into work if they feel it is unsafe. Thomas Wassel, a partner at the law firm Cullen and Dykman on Long Island, said that in many cases employees do have to come to work, but it depends on specific circumstances.

The Biden administration just released new COVID-19 workplace safety regulations, though they will be limited to the healthcare sector, Politico reported.

“OSHA has tailored a rule that focuses on health care, that science tells us that health care workers, particularly those who have come into regular contact with people either suspected of having or being treated for Covid-19 are most at risk,” Labor Secretary Marty Walsh said. “We also expect to release some updated guidance for general industry which also reflects the CDC’s latest guidance and tells employers how to protect workers who have not yet been vaccinated.”

Unions and worker advocacy groups are largely disappointed by the limited rules, which were expected to apply to all workplaces. Key parts of the plan require that workspaces under its jurisdiction designate workplace safety coordinators, carry out hazard assessments, mandate and provide PPE, and other typical COVID safety protocols.

Federal and state regulations conflict

The EEOC and federal law say that employers can require employees to get vaccinated, but some states are attempting to find ways around these laws.

Arkansas, Florida, and Texas all have laws specifically prohibiting businesses and government agencies from requiring vaccinations. A Texas hospital is being sued by more than 100 employees after saying that vaccines would be required for continued employment. With federal and state laws in direct conflict, it’s unclear how things will shake out in Texas.

This legal gray area is likely why few companies have outright required vaccines for employees, though many are encouraging them with perks like bonus payments.

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Uber and Lyft could be avoiding $153 million in Canadian taxes every year by relying on contract workers, report says

Dara Khosrowshahi logan green
Uber CEO Dara Khosrowshahi and Lyft CEO Logan Green

  • Uber and Lyft could avoid a combined $153 million in taxes annually in Canada, a new report claims.
  • Canadians for Tax Fairness blamed lax disclosure laws and companies classifying drivers as contractors.
  • Uber and Lyft both disputed the findings, telling Insider they paid all required taxes in Canada.
  • See more stories on Insider’s business page.

Uber and Lyft could be avoiding a combined $153 million in taxes every year in Canada, according to a new report from the nonprofit Canadians for Tax Fairness (C4TF).

The report estimated Uber and Lyft avoid $53.9 million in corporate taxes as well as $81.3 million in unemployment insurance and benefits taxes by taking advantage of lax financial disclosure requirements around corporate taxes, in addition to classifying drivers as contractors.

While not illegal, the tactics let Uber and Lyft benefit from taxpayer-funded programs like roads, pensions, and unemployment insurance, despite paying very little into those programs, C4TF argued.

“Uber and Lyft both depend to a huge degree on publicly funded infrastructure to make their revenues, but they provide very little of the funding for that infrastructure because they pay next to nothing in taxes,” DT Cochrane, the report’s author and a policy researcher at C4TF, told Insider.

While the lack of transparency around corporate taxes makes it impossible to know exactly how much the companies paid, he added: “it’s doubtful that it approaches the level that we think that it should.”

Uber and Lyft told Insider they disputed the report’s findings, and said they have paid all taxes required by Canadian law.

“Uber contributes millions of dollars in the form of ridesharing fees, which help local and provincial governments pay for ridesharing, transit, and other initiatives,” an Uber Canada spokesperson told Insider.

“We file all of our taxes in Canada, including federal and provincial corporate income tax, payroll taxes, GST/HST, QST and applicable provincial sales tax,” a Lyft spokesperson told Insider, adding that the company “is in good standing with the Canadian tax authorities.”

But C4TF’s report cited several ways it says Uber and Lyft may have been able to significantly cut their tax bills.

First, C4TF estimated the companies brought in $203 million in combined profit in Canada in 2019, which should amount to $53.9 million in federal and provincial corporate taxes. Neither company discloses how much they pay in Canadian corporate taxes, but according to C4TF, using Uber’s global average effective tax rate of 1.9%, Uber and Lyft would have paid roughly $8.6 million.

Multinational corporations have come under increasing scrutiny for attempting to lower their global tax bills by routing profits through low-tax countries. An Australian research group accused Uber of using Dutch shell companies to turn $5.8 billion in global revenue into $4.8 billion in losses on paper, allegedly sidestepping millions of dollars in taxes.

Until recently, Uber’s Canada subsidiary was owned by its Dutch subsidiary, which C4TF claimed may have let it avoid Canadian taxes as well by booking Canadian revenue in the Netherlands where corporate taxes are lower (Uber claimed it had discussed plans to spin off its Canadian subsidiary as early as 2018).

In response, C4TF argued Canadian authorities should require more transparency from companies like Uber and Lyft to ensure they are paying their full tax bill.

C4TF’s report also estimated Uber and Lyft avoid $81.3 million in unemployment insurance and pension taxes by classifying drivers as contractors – a growing source of legal and political headaches for the companies in the US, the UK, Spain, and other countries. In a ruling last year, Canada’s Supreme Court opened the door for a class-action lawsuit that could chip away at the companies’ ability to classify drivers there as contractors.

Lyft’s spokesperson told Insider the Canadian government “recognizes drivers on Lyft as independent contractors and assigns taxes accordingly.”

One such tax includes Canada’s sales taxes. Because Canadian law requires individual contractors to collect and pay sales tax (except in Quebec, where the contracting company is responsible), C4TF argued Uber and Lyft drivers are unfairly shouldering those costs.

C4TF also claimed that because Uber and Lyft don’t withhold those sales taxes – an estimated $217 million per year – from drivers’ earnings upfront, they’re overstating how much drivers are really making.

Cochrane told Insider the report was also a critique of Canadian authorities that do not hold companies accountable for paying their fair share.

“We don’t know exactly what [Uber and Lyft’s] bookings are, what their revenue is, what their take rate is, what their profit margin might be, what their taxes paid are simply because the Canadian government is falling behind on requiring greater corporate transparency,” he said.

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France is investigating claims that Zara, Sketchers, and Uniqlo used forced Uyghur labor in China

French prosecutors have on Friday, July 2 opened an investigation into alleged involvement in crimes against humanity based on accusations that global retailers, including Uniqlo and the makers of Skechers shoes and Zara clothes, rely on forced labor of minorities in China.
French prosecutors have on Friday, July 2 opened an investigation into alleged involvement in crimes against humanity based on accusations that global retailers, including Uniqlo and the makers of Skechers shoes and Zara clothes, rely on forced labor of minorities in China.

  • French prosecutors are investigating Zara, Sketchers, and Uniqlo, amid claims that the retailers used forced Uyghur labor.
  • Legal complaints were filed in France by an exiled Uyghur worker and various human rights groups.
  • The Chinese government has denied any claims of forced labor in Xinjiang.
  • See more stories on Insider’s business page.

French prosecutors have opened an investigation into alleged involvement in crimes against humanity based on claims that global retailers, including Uniqlo and the makers of Skechers shoes and Zara clothes, rely on forced labor of minorities in China’s Xinjiang region.

The Chinese government on Friday reiterated denials of any forced labor in Xinjiang, and lashed out at what it called interference in its internal affairs.

The investigation was opened last month by the crimes against humanity unit of France’s anti-terrorism prosecutor’s office, a judicial official said Friday. The office has special universal jurisdiction to prosecute crimes beyond French borders.

The probe was based on a legal complaint filed in France earlier this year by a Uyghur worker in exile and three human rights groups: Sherpa, the Uyghur Institute of Europe and Ethics on the Label Collective.

The investigation doesn’t name a suspected perpetrator, but is aimed at determining who might be at fault and face eventual charges of involvement in crimes against humanity, the judicial official said. Such a procedure is standard under French law. The official was not authorized to be publicly named.

The complaint names Japanese retailer Uniqlo, U.S. shoemaker Skechers, French company SMCP and Spanish retailer Inditex, owner of Zara. The rights groups say the companies are benefiting from a Chinese system of repression against Uyghur and other Muslim minorities in Xinjiang.

China has come under criticism and sanctions for detaining more than 1 million Uyghurs and and other Muslim minorities for political re-education in the northwestern region of Xinjiang, and for imprisoning or intimidating into silence those it sees as potential opponents from Tibet to Hong Kong.

Uniqlo said in a statement to The AP on Friday that it hadn’t been formally notified of the investigation, but would cooperate fully with French authorities “to reaffirm there is no forced labor in our supply chains.”

The company said none of its production partners are located in Xinjiang. “There has been no evidence of forced labor or any other human rights violation at any of our suppliers. If there is evidence, we will cease to do business with that supplier,” it said.

Skechers said earlier this year that regular audits of its facilities in China have found no sign of forced labor.

Inditex says on its website that it takes “a zero-tolerance approach towards forced labor in any of its manifestations and we implement policies and procedures to ensure that this practice does not take place anywhere in our supply chain.”

A Chinese foreign ministry spokesman, Wang Wenbin, said Friday: “We have repeatedly stressed that the so-called ‘forced labor’ in Xinjiang is a lie concocted by a small number of anti-China elements from the U.S. and a few other countries, with the aim of disrupting Xinjiang and containing China.”

“We firmly oppose any external forces interfering in China’s internal affairs through Xinjiang-related issues,” he continued.

The human rights groups celebrated the French investigation and expressed hopes it will help shine a light on what is happening in Xinjiang.

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A former employee is suing In-N-Out, accusing it of violating labor laws and COVID protocols in California

In-N-Out
  • A former In-N-Out employee says he was fired for taking sick time and reporting COVID violations.
  • The chain called the claims “baseless and false.”
  • The employee is seeking payout for each claim of labor law violation through California courts.
  • See more stories on Insider’s business page.

A former In-N-Out employee filed a lawsuit accusing the chain of violating the state labor code and COVID-19 protocols, National Restaurant News reported.

Luis Becerra’s June 7 complaint accuses In-N-Out of retaliation for using sick leave and engaging in protected activities, failing to enforce COVID safety regulations, and not paying wages owed at the end of employment. Becerra worked for In-N-Out for five years until May 2020, when he says he was unfairly terminated.

“At In-N-Out Burger, we have always cared for our associates as if they are our own family and we are disappointed with the baseless and false claims that Mr. Becerra has made in his lawsuit,” the chain’s chief legal and business officer Arnie Wensinger told Insider.

Read more: Newly revealed CloudKitchen documents show how Travis Kalanick’s company is pivoting as new rivals enter the crowded ghost kitchen space

Becerra claims in the lawsuit that In-N-Out did not enforce the safety measures required by the LA Health Department, including social distancing, personal protective equipment, and placing sick employees on medical leave.

“Mr. Becerra saw all of this going on, so he reported it. … In-N-Out responded by using improper write-ups it had issued against Mr. Becerra for taking short, valid medical leaves as false justification to terminate him.” Becerra’s representative Rene Potter told Law 360.

Becerra said he was fired for taking sick time in May 2020 related to his asthma and that In-N-Out told him the official reason he was terminated was a forged medical note, listing “providing false documentation” and exhausting sick pay. He also said he never received his final paycheck.

Becerra is asking for civil penalties on behalf of himself and other In-N-Out employees for each individual labor code violation in accordance with California law, along with attorney’s fees.

Other fast-food chains have faced accusations of violating labor law related to sick leave over the last year. In April, New York City sued Chipotle, accusing the chain of illegally denying requests for time off and not paying workers for the time they took. The city said that Chipotle owed over $150 million to workers.

Do you have a story to share about a retail or restaurant chain? Email this reporter at mmeisenzahl@businessinsider.com.

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Amazon exec Dave Clark pushed USPS to install mailbox now at center of union election controversy

Mailbox Amazon Bessemer
The mailbox outside the Amazon warehouse in Bessemer.

Amazon consumer CEO Dave Clark led the company’s push to persuade the US Postal Service to install a controversial temporary mailbox outside Amazon’s warehouse in Bessemer, Alabama, during a recent union election, multiple outlets reported Monday.

“Please let me know where we stand on this — this is a highly visible Dave Clark initiative,” Becky Moore, an Amazon senior manager, said in a January email to USPS officials presented at a National Labor Relations Board hearing Monday, according to Bloomberg.

Amazon did not respond to a request for comment on this story.

Jay Smith, a USPS official in charge of managing major accounts including Amazon, also testified to the NLRB that it was the first time he was aware of the agency installing such a mailbox at the request of a private company, Bloomberg reported.

Photos of the mailbox showed that modifications made by the USPS to accommodate more outgoing ballots could potentially have allowed a recipient assigned to an adjacent incoming mailbox to access the outgoing mail, according to Bloomberg.

Last week, Amazon employee Kevin Jackson testified that he saw the company’s security guards use keys to access that outgoing mail slot, but Amazon denied those allegations, Bloomberg previously reported.

Amazon’s employees voted against unionizing in April. But the Retail, Wholesale and Department Store Union, under which employees would have unionized, filed official objections to the NLRB, claiming Amazon violated labor laws during its anti-union campaign.

The NLRB agreed to hold a hearing to determine whether Amazon acted illegally and whether a new election should be held.

The RWDSU specifically objected to Amazon’s push to convince the USPS to install the mailbox – which came despite the NLRB rejecting Amazon’s requests to force employees to vote in-person – saying the mailbox “provided a clear ability to intimidate workers.”

Amazon previously told Insider the box was an effort to allow workers to vote more easily.

The Washington Post reported last month that the USPS only decided to install the mailbox after repeated requests from Amazon corporate employees, but testimony and evidence presented during the multi-day NLRB hearing has shed more light on Amazon’s tactics.

Smith also testified that the USPS explicitly told Amazon not to place anything around the mailbox that suggested it was where employees needed to vote, CNBC reported. Yet Amazon proceeded to place a tent around the mailbox that read: “Speak for yourself! Mail your ballot here.”

“I was surprised because I was asked, ‘Can anything physical be put on the box?'” Smith said, according to CNBC, adding: “I said no. I did not want to see anything else put around that box indicating that it was a vote.”

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Google ‘arguably violated’ labor law when it fired employees involved in unionizing, says NLRB chief

Google Walkout.JPG
The National Labor Relations Board has said Google “arguably violated” US labor laws when it fired three employees involved in unionizing.

  • Google ‘arguably violated’ labor laws when it fired employees involved in unionizing activity.
  • NLRB chief Peter Sung Ohr accused the tech giant of ‘unlawfully discharging’ three ex-Googlers.
  • But Google insists the company remains ‘very confident’ in its legal position.
  • See more stories on Insider’s business page.

Google “arguably violated” US labor laws when it fired three employees involved in unionizing activity, the acting head of the National Labor Relations Board (NLRB) has said.

Peter Sung Ohr’s comments mark the latest twist in the long-running fallout between Google execs and employees, and may underscore a more pro-labor approach at the agency under President Biden.

Google suffered backlash after firing five activist workers in the space of a month towards the end of 2019. Laurence Berland, Paul Duke, Rebecca Rivers, and Sophie Waldman became known as the “Thanksgiving Four” after the company sacked them around the holiday season, alleging they had leaked company information in violation of its policies, an allegation all of them deny.

The four were subsequently joined by Kathryn Spiers, who had created an internal pop-up notification for employees telling them they had a right to “participate in protected concerted activities” before being fired in December 2019.

The ex-Googlers subsequently filed complaints via the NLRB, alleging that Google terminated their contracts in an attempt to crush unionization efforts.

In 2020, under the Trump administration, then NLRB leader Peter Robb accused Google of illegally firing Berland and Spiers, but rejected the other three’s claims.

In a new letter seen by Bloomberg, however, the agency’s new acting chief Ohr said that Google had “arguably violated” federal labor laws by “unlawfully discharging” .

As a result, Bloomberg reports that the NLRB is now considering amending its original complaint to include Duke, Rivers, and Waldman, unless Google settles out of court.

In a statement shared with the site, a Google spokesperson said, “Our thorough investigation found the individuals were involved in systematic searches for other employees’ materials and work, including distributing confidential business and client information.”

They added: “As the hearing on these matters moves forward, we’re very confident in our decision and legal position.”

Insider approached Google and the NLRB for further comment.

Are you a current or former Googler with more to share? You can contact this reporter securely using the encrypted messaging app Signal (+447801985586) or email (mcoulter@businessinsider.com). Reach out using a nonwork device.

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Chipotle has been sued by New York City over claims it violated scheduling sick leave laws, and now owes over $150 million to workers

Chipotle Manhattan
West 169th Street Chipotle.

  • New York City is suing Chipotle over accusations of violating labor laws.
  • The complaint says Chipotle owes workers more than $150 million.
  • Chipotle called the case a “dramatic overreach.”
  • See more stories on Insider’s business page.

New York City has sued Chipotle, accusing the restaurant chain of labor law violations regarding workers’ schedules at dozens of stores, the New York Times reported Wednesday.

The city is accusing Chipotle of hundreds of thousands of violations of the Fair Workweek Law, which mandates that workers must have 14 day advance notice of schedules or extra pay, and that workers must have a certain break period between shifts or receive an extra $100, Noam Scheiber at The New York Times first reported.

Chipotle failed to give New York City workers sufficient notice or extra pay, the Times said, citing the complaint. The Department of Consumer and Worker Protection at the Office of Administrative Trials and Hearing officially filed the suit.

Chipotle confirmed to Insider that the city had filed the suit.

“We make it a practice to not comment on litigation and will not do so in this case, except to say the proceeding filed today by DCWP is a dramatic overreach and Chipotle will vigorously defend itself. Chipotle remains committed to its employees and their right to a fair, just, and humane work environment that provides opportunities to all,” Laurie Schalow, Chief Corporate Affairs Officer for the company, told Insider in a statement.

This complaint is the largest ever brought by New York City under the Fair Workweek law, according to the Time. Workers are owed more than $150 million for the violations, plus more in legal penalties, the Times reported.

The lawsuit is over labor practices between November 2017 and September 2019. It says that Chipotle has attempted to comply with the law since 2019 but violations are ongoing.

“Since we first filed our case against Chipotle, we have unfortunately learned that those initial charges were just the tip of the iceberg,” department commissioner Lorelei Salas said in a statement.

The lawsuit also accuses Chipotle of illegally denying requests for time off or not paying them for time that they took, a violation of New York City’s paid sick leave law, the Times reported. All of the 6,500 Chipotle employees in New York City were affected by scheduling and sick leave violations, according to the complaint.

Chipotle continues to expand even as COVID hit the restaurant industry hard. In the first quarter of 2021, the chain opened 35 net locations, and digital sales exploded with 133% growth. Chipotle attributed much of its growth to Chipotlanes, the fast casual chain’s version of drive-thrus. More than half of the new Chipotle locations had drive-thrus this quarter, and the company says they “perform very well and are helping enhance guest access and convenience, as well as increase new restaurant sales, margins, and returns.”

Do you have a story to share about a retail or restaurant chain? Email this reporter at mmeisenzahl@businessinsider.com.

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Freelancers are freaking out about the PRO Act. Here is why they should – and shouldn’t – be worried.

PRO act Bobby Scott
Rep. Bobby Scott (D-VA), Chairman of the House Committee on Education and the Workforce, speaks during a press conference advocating for the passage of the Protecting the Right to Organize (PRO) Act in the House of Representatives on February 5, 2020.

  • The PRO Act, which passed in the House, includes a metric for reclassifying workers that freelancers object to.
  • Many independent contractors don’t object to the right to collective bargaining, but worry the bill could set a dangerous precedent.
  • Lawmakers must strip the “ABC test” from the bill.
  • Larry Buhl is a multimedia journalist, author, and podcast host.
  • This is an opinion column. The thoughts expressed are those of the author.
  • See more stories on Insider’s business page.

Back in 2019, I predicted that California Assembly Bill 5 (AB5), which upset the independent contractor world by reclassifying freelancers in hundreds of occupations as employees unless they could prove they’re not, would be seen by other lawmakers as a road map, rather than a cautionary tale. And here we are: a new bill working its way through Congress, the Protecting the Right to Organize Act of 2021 – or PRO Act – should give independent contractors across the country reason to worry, though not necessarily because of the intent of the legislation.

The ABC test

What made AB5 so problematic was its reliance on the ABC employment test to classify workers. ABC says a freelancer should be an employee, unless:

“A) The worker is free from the control and direction of the hiring entity in connection with the performance of the work, both under the contract for the performance of the work and in fact; and

B) The worker performs work that is outside the usual course of the hiring entity’s business; and

C) The worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.”

The worker must meet all three. Part B is where many independent contractors went through the buzzsaw: If you’re in the same business as a client, you must be an employee, and, presumably the company would hire you, even if you’ve only been putting in a few hours a week for them. Yet, instead, most employers are just not working with California freelancers anymore.

ABC is also the basis for reclassification in the PRO Act, which passed the House of Representatives earlier this month with bipartisan support. However, there’s one big difference: While AB5 reclassified employment status for workers in California, the PRO Act reclassifies freelancers nationally, but only for the purpose of collective bargaining rights. That’s all – or so it states. Supporters say it “levels the playing field” for unions, to give more people the right to vote in union elections.

I spoke with Professor Michael LeRoy, an expert in labor law and labor relations at the University of Illinois Urbana-Champaign, to find out whether freelancers should worry about the PRO Act. He said there’s been some hyperbole and misunderstanding about it.

“Does [the PRO Act] force you to be in a union? No. If 10 million [freelancers] are classified as employees, a certain amount will want to form one or join one, but they could also vote no,” he told me.

I’d be okay with more people being able to collectively bargain if they want. Freelancers I spoke with aren’t apoplectic about theoretical pressure to join a union, either. What does concern us greatly is the ABC test being used to reclassify independent contractors for any reason. Almost everyone I spoke with feared the ABC test would be misapplied by companies who read the reclassification part of the law, but miss the part about unions. Freelancers also worry that the ABC test will set a precedent for future legislation. It already has: Several states used AB5 as a model when proposing new “gig worker protection laws.”

Unintended consequences

Fred Topel, a Los Angeles-based entertainment journalist and co-leader of California Freelance Writers United (CAFWU), implored national lawmakers to not use the ABC test. “If you take out the ABC test, I think a majority of [CAFWU] members would support it. We’ve seen no evidence that AB5 worked as lawmakers intended, but plenty of evidence of unintended negative consequences from the ABC test,” he said.

Robert Sette, a freelance translator in Denver, predicted that any big change to labor laws using the ABC test would make hiring companies think twice about using independent contractors. “Many won’t see [the PRO Act] as only for labor organizing. They’ll see this as a risk management issue. To avoid possibly running afoul of the law, they’ll cut loose freelancers.”

That did happen in California. The Facebook group Freelancers Against AB5 has been compiling personal stories of independent contractors in California who lost work and income directly as a result of that law, well before the COVID-19 crisis. Based on dozens of “no Californians need apply” notices citing AB5 as the reason, it appears that many companies were so bewildered by the law and scared of fines for possibly violating it, they simply gave up on California independent contractors.

The road to career hell was paved with good intentions

After AB5 passed, I joined CAFWU and other advocates in California to petition state representatives to amend the law. We succeeded in getting exemptions for some professions.

Through the process, we learned that most lawmakers had no clue about the scope of the independent contractor world, and assumed most people deriving an income were either employers, employees, or exploited would-be employees. The bill’s biggest proponents said, in so many words: Don’t worry if you lose work because all your clients will hire you full time, with benefits! We explained that’s not how it works, emphasizing that most independent contractors are thriving professionals.

I recognize that some independent contractors do want full-time work, and that many other workers are truly misclassified and exploited. There should be protections from misclassification, except – there already are laws covering that. Any worker can sue for misclassification right now – albeit with difficulty.

We don’t need new laws that help some, but also legislate hundreds of thousands of successful careers out of existence. LeRoy agreed the ABC test is a blunt tool that “oversimplifies” the labor force and would need “significant refinements” and exemptions if kept in place. A potential solution could be a multi-factor balancing framework to determine who’s an employee, one like the IRS uses.

In order to prevent the ABC test from wreaking havoc on more independent contractors’ lives, constituents must start conversations with their representatives, starting with the Senate subcommittee members that will be discussing it. They could point to surveys showing that 30% of the US workforce is either self-employed or hired by the self-employed and estimates that freelance income is nearly 5% of GDP.

Stripping the ABC test from the PRO Act could prevent lawmakers from proposing more damaging bills, like the one written last year by Democratic Senators Patty Murray of Washington and Sherrod Brown of Ohio. Their bill gives some benefits to temp and gig workers, but, like AB5, it uses the ABC test to sweep all professions into its net.

This shouldn’t be a partisan issue, but sadly it is. Many Republicans insist any labor protections will hurt business and therefore can never be considered. Based on comments from AB5’s proponents, many Democrats assume what’s good for unions surely benefits everyone. Labor classifications must be more nuanced than that because today’s labor market is complicated.

Pro-labor lawmakers need to understand that freelancers are not necessarily suffering gig workers, or getting by until they land a “real job.” They should either toughen enforcement of existing laws or make sure new laws explicitly help workers who need protections, but not hinder independent contractors’ ability to earn a living. Labor law shouldn’t be a zero sum game.

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New York City just granted protections to fast food workers. It may be a model for protecting essential workers across the country.

fast food protests new york minimum wage
Protesters with NYC Fight for $15 gather in front of a McDonalds on February 13, 2017 in New York City.

  • New York City just passed a law saying employment in the fast food industry will no longer be “at will,” but must require “just cause” for firing workers. 
  • The law will provide workers needed protections by making it harder to fire them. 
  • If the effects of the law are positive, this could be a model for protecting essential workers across the country. 
  • Vincent White is a partner at White, Hilferty & Albanese, a national employment law firm.
  • This is an opinion column. The thoughts expressed are those of the author. 
  • Visit the Business section of Insider for more stories.

At a moment of unprecedented insecurity for millions of American workers, New York City is once again functioning as a vital laboratory for the future of protecting American workers.

In 2019, after the city increased its minimum wage to $15 an hour, states from New Jersey to California followed with plans of their own to boost wages. Now a new law, passed in January and taking effect in July, will strengthen the job security of fast food workers in New York City and could be a model for more localities across the US.  That’s because after July, employment in the industry will no longer be “at will.” Instead, employers will have to show “just cause” for firing workers. 

This is a bold and important experiment, one that could bring more stability to workers in a notoriously difficult and high-turnover employment sector. The new law may also hasten a shift toward automation and impose costs on the operators of franchises at a time when New York City is struggling with massive revenue losses. Whatever the results of the new law, it’s encouraging to see a major American city move beyond stale talking points in policy debates and actually introduce a forceful, targeted intervention in labor law. 

Many experts predicted that raising New York City’s minimum wage in 2019 would harm both revenue and employment. But contrary to these doom and gloom predictions, both increased. People were willing to pay a bit more to eat in restaurants, and everyone was able to benefit. This new law could also easily surprise us in a variety of ways.

What are “just cause” protections? 

The “just cause” standard, while vague around the edges, can provide powerful protections for workers. 

Under the old law, those who did not agree to cover last-minute shifts or work overtime might be fired with relative ease, perhaps on the pretext that they were not a “team player.” The language in the new law requires application of “progressive discipline,” which means that termination can occur only after a series of graduated interventions proportionate to any infractions of policy. 

What’s more, this discipline cannot be arbitrarily dispensed according to the fluctuating whims, grudges, or agendas of a particular boss. It must be “reasonable and applied consistently,” a substantive legal phrase that provides genuine protection to workers.

In cases of obvious misconduct, fast food restaurants will still be able to fire employees. Assaulting the boss, spitting in the food – any reasonable judge or arbitrators would regard these as just causes for termination. In borderline cases, however, things will become more interesting. Is lagging productivity a legitimate reason for dismissal? A bad attitude that undermines morale without violating any policy? These cases are murkier. 

The potential benefits of “just cause”

Absent this new law, employers probably would not think twice before dismissing workers in such scenarios, figuring that in an industry with annual turnover rates that often exceed 100%, they could always find another worker. Many more employers are now likely to be deterred from quick dismissals by the prospect of a longer and legally mandated process, which could trigger back pay for unlawfully terminated employees and statutory penalties of $500 for each violation. 

This could result in more careful selection, training, and treatment of workers. It makes sense to invest more in choosing workers carefully and keeping them happy if you know that they are harder to dismiss. This could even cause upward pressure on wages as franchises compete to attract and retain good workers. 

On the other hand, there might be fewer fast food jobs if the new law increases operational costs and decreases turnover. Critics also worry that employers might be permanently stuck with chronically underperforming employers they are unable to dismiss. 

There’s some legitimacy to this fear, but it needs to be weighed against the benefit of decreasing unjust and arbitrary terminations. It’s also important to remember that the new law is currently limited to the fast food industry; businesses with profit flowing in from locations around the country and world can afford to treat workers a bit better in New York City. And if the local owners of New York City franchises are affected by the expense of these new laws, the wealthy national companies that grant these franchises could help their local operators with extra costs.

Rather than such a generous course of action, however, corporate fast food mammoths may simply accelerate the shift to automation that has already begun. McDonald’s spent nearly $1 billion in 2019 adding ordering kiosks and other automation technology to stores. 

As current mayoral candidate Andrew Yang has stressed, this transition is likely inevitable in a range of industries over the coming years. Rather than postponing it, a more intelligent strategy may be to increase the security and wages of those jobs that can still only be done by humans. There’s even an argument for hastening the arrival of automation: if it’s going to happen anyway, the sooner we begin to experience its full disruptive effects, the sooner our economies and political systems will be forced to develop sustainable responses. 

A final virtue of this new labor law is its granting of genuine workplace protections to those we celebrate as essential workers during the pandemic. Many of these workers already rely on public assistance programs because of low wages, and they now face additional risk from a deadly virus on a daily basis. 

If we care about helping such people, a disproportionate number of whom are from immigrant and minority communities, it’s long overdue to provide them with more than a hollow bit of celebratory rhetoric about how they are “essential.” New York City’s bold new law could be a crucial step in the right direction. The rest of the country will be waiting to see the results. 

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Yes, your boss can require you to get the COVID-19 vaccine. Labor lawyers weigh in on what rights employees have.

covid vaccine trial
Lisa Taylor receives a COVID-19 vaccination from RN Jose Muniz with the help of Karenda Palmer, a staff member, as she takes part in a vaccine study at Research Centers of America on August 07, 2020 in Hollywood, Florida.

  • The EEOC says employers can require employees get a COVID-19 vaccine or ban them from the office.
  • One lawyer predicts that most employers will strongly suggest, not require, vaccination.
  • There are still unanswered questions about what else employers can require of workers when it comes to workplace safety.
  • Visit Business Insider’s homepage for more stories.

Employers can legally require employees get a COVID-19 vaccine or ban them from the office, the Equal Employment Opportunity Commission (EEOC) said in a recent guidance.

As the first doses of coronavirus vaccines are given to healthcare workers and other high risk groups, many employees around the country officially have an answer to the question: Can my boss legally require that I get the COVID-19 vaccine?

Pharmaceutical companies Pfizer and Moderna have each said that their vaccine is about 95% effective. American healthcare workers received the first COVID-19 vaccines on Monday, soon after Pfizer became the first candidate to receive emergency authorization in the US from the Food and Drug Administration, shortly followed by Moderna’s vaccine.

Read more: Employers are flooding labor lawyers’ inboxes to ask if they can make a coronavirus vaccine mandatory in the workplace. Here’s the advice 6 lawyers are giving clients.

Business Insider spoke with six labor and employment lawyers about whether workplaces can make coronavirus vaccinations mandatory for their employees.

Can bosses make a coronavirus vaccination mandatory at the workplace?

Workers likely first want to know what exactly their employers can require of them. In short, yes, employers can make vaccines mandatory, Jimmy Robinson, managing shareholder at the L&E firm Ogletree Deakins’s Richmond office, told Business Insider. He also mentioned that there would need to be religious and medical accommodations, with specific requirements varying by state and locale.

Karla Grossenbacher, chair of Seyfarth Shaw’s L&E practice in Washington, DC, said that employers would have to comply with the Americans with Disabilities Act (ADA). The ADA says that employers can require medical exams and vaccinations of employees under certain, specific conditions, like for healthcare workers, or if it poses a “direct threat” to the person if they are exempted, Grossenbacher said.

The EEOC, which enforces civil rights laws against workplace discrimination, has categorized COVID-19 as a direct threat. This designation allows employers to require temperature takes, masks, and social distancing.  The federal agency has clarified that employers can mandate vaccination for employees, saying  “If a vaccine is administered to an employee by an employer for protection against contracting COVID-19, the employer is not seeking information about an individual’s impairments or current health status and, therefore, it is not a medical examination.” Medical examinations, including COVID-19 antibody testing, are not limited by the EEOC.

There are still many questions lawyers don’t yet know how to answer. 

With a limited number of vaccines available, the general public will not be able to get the shots for months. In the meantime, workers have other questions about what employers can ask of them.

Nathaniel Glasser, a partner at Epstein Becker Green, said his clients are asking if they can restrict employees from attending large gatherings, or if employees can be required to come into work if they feel it is unsafe. Thomas Wassel, a partner at the law firm Cullen and Dykman on Long Island, said that in many cases employees do have to come to work, but it depends on specific circumstances.

The Biden administration may also release more guidance or legislation on workplace safety, which could answer some of these questions. Each question also depends on the specifics of the vaccine and the employee’s particular job, so many questions are impossible to answer this early.

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