Covid-19: pandemic highlights holes in workers’ rights

Jennifer Venis, IBA Multimedia JournalistThursday 7 May 2020

Low-wage and gig economy workers, whose jobs have been classed as essential by governments amid the Covid-19 pandemic, are resorting to legal action and protests to request health and safety measures and paid sick leave.

Workers at Amazon warehouses in France held protests about warehouse conditions, including a lack of hygiene products and the inability to perform social distancing, from early March. On 3 April, inspections confirmed safety hazards and the French Ministry of Labour (Ministère du Travail) ordered Amazon to take further measures to protect employees.

Unions then forced Amazon to face the judiciary, and the court in Nanterre determined that Amazon’s safety provisions were still lacking, banning the sale of non-essential items until Amazon properly evaluates and addresses the risks posed by Covid-19 to staff. Amazon was given 24 hours to comply and a threat of a €1m fine for every day that it failed to meet these obligations.

At the moment, the protection of low-paid workers is so far down a company’s priorities that the threat of legal action is the best way to get positive solutions

Alex Marshall
Chair, Couriers and Logistics Branch, Independent Workers’ Union of Great Britain

Amazon announced it would appeal the ruling in a statement, which read: ‘We are perplexed by the ruling… made in spite of overwhelming evidence about the safety measures we’ve implemented to protect our employees’.

Although the Appeal Court significantly reduced the fine for noncompliance, it otherwise upheld the Nanterre ruling. The judge highlighted that Amazon had yet to create a company-wide system of evaluation for workers’ protection. Amazon suspended activities in French warehouses to assess the risks and take necessary safety measures to comply with the ruling.

Elise Groulx Diggs, Co-Chair of the IBA Business Human Rights Committee, celebrates this ‘fantastic court decision for the sake of workers’ rights and safety’. She says Covid-19 is bringing health and safety to the forefront of the world stage: ‘we’re talking about the right to life and human dignity’. Groulx Diggs believes ‘the better society takes care of its workers, the better its economic recovery will be’.

On 1 May, workers and unions around the world formed unprecedented coalitions to protest the continuing lack of protections for their health and incomes. Some groups have been protesting repeatedly since early March, but with demands unmet, calls for more safety measures, increased hazard pay, and paid sick leave including for those self-isolating without a Covid-19 diagnosis, continue with renewed fervour.

At Whole Foods, a United States company owned by Amazon, protests in early April referred to an internal email from Whole Foods’ Chief Executive Officer, which allegedly suggested employees donate their own paid holiday leave to colleagues with medical emergencies or a death in the family. One Whole Foods employee told the media that the company ‘started handing out availability forms stating that if we are not able to work 70% of the peak hours we could lose our full-time status, therefore losing all health benefits… All customer service and retail workers should be getting hazard pay in a pandemic and Amazon can afford to do it, but they won’t’.

Whole Foods did not immediately respond to Global Insight’s request for comment, but in media statements has listed measures for staff including increased overtime pay and an additional two weeks of paid sick time for those in quarantine or who have tested positive for Covid-19.

Els de Wind, Co-Chair of the IBA Global Employment Institute, is afraid that ‘in the US, people who suspect they are ill will try to conceal any symptoms and go to work because they can’t afford to lose pay, and they can’t get treatment because they can’t afford medical bills’.

Their situation is compounded by recent US Department of Labor guidance that hollowed out new federal requirements for paid sick leave for private-sector workers, introduced by the US Families First Coronavirus Response Act (FFCRA). The guidance, which US Democrats claimed ‘violated the congressional intent’ of the FFCRA, means 75 per cent of US workers are left unprotected because their employers are now exempt from compliance. Those affected by the exemptions include all healthcare staff, even hourly workers, who may have no other leave such as paid holiday to lean on if they fall ill.

‘This is a central issue on how to go forward after Covid-19 – how can you have an economy going if your workers are all ill or ill-protected and at risk?’ says Groulx Diggs, who is also a Washington, DC-based associate tenant at Doughty Street Chambers.

De Wind, who is also a partner and head of the International Employment team at Van Doorne, Amsterdam, believes that Covid-19 is also putting the rights gap between employees and gig economy workers back on the political agenda.

Without employment rights, gig economy workers who are classified as independent contractors are generally not entitled to paid sick leave, holiday pay, a minimum wage or even state unemployment support and statutory sick pay. Unions were highlighting this as an impending public health crisis in the United Kingdom as early as 3 March.

Many gig economy platforms have begun to offer sick pay, limited to workers with a Covid-19 diagnosis. But as testing is limited in many countries, workers report difficulty accessing these protections. Uber drivers in California resorted to legal action to compel Uber to provide three days paid leave to eligible drivers in the state with Covid-19 symptoms, regardless of diagnosis.

California’s recently enacted Assembly Bill 5 ensures gig economy workers have a legal right to be recognised as employees. At an early April hearing about sick pay for Lyft drivers during the Covid-19 pandemic, US District Judge Vince Chhabria said that refusing to meet such legal obligations is ‘disregarding the rule of law.’

In a statement, ride-sharing company Lyft said it believes its drivers are properly classified as independent contractors, adding ‘This is a complex issue that affects hundreds of thousands of people.’

Alex Marshall, Chair of the Couriers and Logistics Branch of the Independent Workers’ Union of Great Britain (IWGB), believes ‘the protection of low-paid workers is so far down a company’s priorities that the threat of legal action is the best way to get positive solutions’.

IWGB is taking legal action against UK Chancellor of the Exchequer, Rishi Sunak, claiming that government income support for self-employed people discriminates against minority groups that make up a significant portion of the gig workforce.