tag:theconversation.com,2011:/nz/topics/workplace-law-21852/articlesWorkplace law – The Conversation2023-10-30T01:03:03Ztag:theconversation.com,2011:article/2160722023-10-30T01:03:03Z2023-10-30T01:03:03ZNZ’s workplace rules will change again with each new government – unless we do this<p>Whether you are a worker or an employer, the office or factory floor is likely to move under your feet over the next three years. </p>
<p>Every change of government sees a policy turnaround in New Zealand’s workplace relations. This see-saw pattern looks set to continue with the election of a National-led coalition in 2023.</p>
<p>Commentators are <a href="https://www.rnz.co.nz/news/political/500296/election-2023-axing-fair-pay-agreements-full-return-of-90-day-trials-on-business-wishlist">already speculating</a> about the axing of fair pay agreements and the return of 90-day trials. Lawyers, businesses and unions will soon be offering law-change updates. Workers and employers will begin amending their day-to-day processes. </p>
<p>But the bigger question is what drives these constant changes – and ultimately whether they benefit the country’s productivity in the long term.</p>
<h2>Coalition uncertainties</h2>
<p>Ultimately, political ideology shapes employment law and workplace relations. Governments of the left and right both assert a desire to “<a href="https://www.legislation.govt.nz/act/public/2000/0024/latest/DLM58323.html">build productive employment relationships</a>” that benefit workers, employers and the economy. But each has a different perspective on the best way to achieve this. </p>
<p>For the left, the government’s role is to address an unequal balance of power between workers and employers. This includes establishing legislated minimum standards to protect workers’ interests, as well as supporting workers’ ability to act collectively. </p>
<p>The right emphasises the needs of business owners, enabling workers to negotiate individual workplace arrangements, with workers and employers finding outcomes that fit both sides. </p>
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<p>While these principles are well known, it’s not so easy to gauge the likely outcomes from this current election, particularly since National chose to <a href="https://ojs.aut.ac.nz/nzjer/article/view/127">release very little workplace relations policy</a> during the election campaign. </p>
<p>But it seems National will need the libertarian ACT Party to form a government, and possibly also the centrist but conservative NZ First. Coalition or support agreements will come down to how much priority each party places on workplace policy, and <a href="https://ojs.aut.ac.nz/nzjer/article/view/125">how much power they have</a> in eventual governing arrangements. </p>
<p>Those parties’ policies often conflict. NZ First wants the minimum wage to rise, while ACT wants it frozen. It’s also unlikely the economically nationalist NZ First will welcome ACT’s proposed changes to migration settings to meet worker shortages and solve tertiary sector underfunding by boosting study visas for international students.</p>
<p>If ACT sees the workplace relations portfolio as a priority, what concessions might NZ First negotiate? And how far is National prepared to go in accepting ACT’s more extreme policies? </p>
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<h2>Political footballs</h2>
<p>As we outlined in a <a href="https://ojs.aut.ac.nz/nzjer/article/view/127">recent article</a> for the New Zealand Journal of Employment Relations, there are multiple “political footballs” in play, which move backwards and forwards depending on who is in power. </p>
<p>All three potential coalition parties propose reviving <a href="https://www.rnz.co.nz/news/political/496806/national-confirms-it-would-reinstate-90-day-trials">90-day trial periods for all businesses</a>. Other possible areas to be reversed again include <a href="https://taylorshaw.co.nz/labour-announces-changes-to-employment-law-legislation/">rest and meal breaks</a>, the “<a href="https://taylorshaw.co.nz/labour-announces-changes-to-employment-law-legislation/">30-day rule”</a> for new employees’ contract conditions, the <a href="https://www.wgtn.ac.nz/__data/assets/pdf_file/0008/1816019/changes-employment-law.pdf">requirement to settle collective negotiations</a>, plus a <a href="https://www.wgtn.ac.nz/__data/assets/pdf_file/0008/1816019/changes-employment-law.pdf">range of union rights</a>. </p>
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Read more:
<a href="https://theconversation.com/why-three-day-weekends-are-great-for-wellbeing-and-the-economy-205063">Why three-day weekends are great for wellbeing – and the economy</a>
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<p>The outgoing Labour-led government operated tactically by improving entitlements for large numbers of workers. This reduced the likelihood that these entitlements would become political footballs. The <a href="https://chapmantripp.com/trends-insights/employment-law-change-agenda-for-2022/">minimum wage increased</a>, paid parental leave was <a href="https://www.mbie.govt.nz/business-and-employment/employment-and-skills/employment-legislation-reviews/extending-paid-parental-leave/">extended</a>, Matariki became an <a href="https://www.rnz.co.nz/news/national/464833/matariki-public-holiday-passes-into-law">additional public holiday</a>, and <a href="https://www.mbie.govt.nz/business-and-employment/employment-and-skills/employment-legislation-reviews/increasing-minimum-sick-leave-entitlement/">the sick leave entitlement increased</a>. </p>
<p>For workers, these were significant gains, and attempts to wind them back would potentially provoke real discontent – and that could create a conundrum for National. </p>
<p>National has said it won’t reverse the changes to <a href="https://www.1news.co.nz/2022/04/21/matariki-luxon-says-national-aint-unwinding-a-public-holiday/">Matariki</a> or <a href="https://www.rnz.co.nz/news/political/496806/national-confirms-it-would-reinstate-90-day-trials">sick leave</a>, conflicting with ACT’s proposal to scrap a public holiday.</p>
<h2>Unproductive change</h2>
<p>Aside from the policy detail, there is a much larger question about just how helpful this ongoing cycle of action and reaction is. New Zealand urgently needs to <a href="https://www.stuff.co.nz/business/300665457/its-no-laughing-matter-poor-productivity-affects-all-new-zealanders">improve its productivity and innovation</a> to be internationally competitive. </p>
<p>But the highly politicised approach to workplace relations is framed in terms of ideologies rather than evidence-based assessment. This means New Zealand workplaces are constantly disrupted, instead of progressing towards more strategic long-term goals. </p>
<p>Finding a solution is not easy. But recent governments have used a tripartite (three-party) approach, bringing together worker, business, and government representatives to address <a href="https://www.ilo.org/declaration/events/WCMS_099523/lang--en/index.htm">larger issues</a>, such as <a href="https://www.publicservice.govt.nz/assets/DirectoryFile/Guidance-Pay-equity-context-and-principles.pdf">gender pay equity</a> and the <a href="https://www.mbie.govt.nz/assets/holidays-act-taskforce-final-report.pdf">Holidays Act</a>. </p>
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Read more:
<a href="https://theconversation.com/nzs-always-on-culture-has-stretched-the-8-hour-workday-should-the-law-contain-a-right-to-disconnect-215444">NZ's always-on culture has stretched the 8-hour workday – should the law contain a right to disconnect?</a>
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<p>This means key stakeholders have buy-in to the resulting workplace systems, reducing the likelihood of upheavals with inevitable changes of government. </p>
<p>That approach is an example of the longer-term thinking needed to ready New Zealand for <a href="https://www.mckinsey.com/%7E/media/mckinsey/featured%20insights/innovation/navigating%20a%20world%20of%20disruption/mgi-briefing-note-navigating-a-world-of-disruption-jan-2019.pdf">massive disruptions</a> already underway. These disruptions include accelerating impacts of artificial intelligence and other technologies; the growing influence of China, India and other emerging economies; and increasing flows of capital, people and trade across borders.</p>
<p>As the pace of change increases, the consequences for economies that cannot keep up are becoming more serious. </p>
<p>Given the supposedly bipartisan aim of creating a more productive workforce, the upheavals that accompany each change of government raise real questions about how well New Zealand is meeting those challenges.</p><img src="https://counter.theconversation.com/content/216072/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Bringing together worker, business, and government representatives helped set clearer rules for everyone on public holidays. We need to try that same approach to lift NZ’s poor productivity.Bernard Walker, Associate Professor in Organisations and Leadership, University of CanterburyDanaë Anderson, Research Lecturer, Te Herenga Waka — Victoria University of WellingtonJulienne Molineaux, Senior Lecturer, School of Social Sciences and Public Policy, Auckland University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2154442023-10-19T19:03:13Z2023-10-19T19:03:13ZNZ’s always-on culture has stretched the 8-hour workday – should the law contain a right to disconnect?<p>When Wellington carpenter Samuel Parnell began the struggle for an eight-hour working day back in 1840, he could have never foreseen how modern work culture would evolve. But he would no doubt empathise with the challenges faced by today’s workers.</p>
<p>History tells us that Parnell, recently arrived from London, agreed to take a job building a store on the proviso he only work eight hours a day. He <a href="https://nzhistory.govt.nz/people/samuel-parnell">reportedly told</a> his would-be employer:</p>
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<p>There are twenty-four hours per day given us; eight of these should be for work, eight for sleep, and the remaining eight for recreation and in which for men to do what little things they want for themselves.</p>
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<p>Given the scarcity of carpenters at the time, there wasn’t a lot of bargaining and Parnell was granted his wish. The idea gained momentum, with a meeting of Wellington workmen later that year resolving to work from 8am to 5pm.</p>
<p>They also agreed that anyone offending against this principle would be ducked in the harbour – one way of ensuring solidarity perhaps. The principle of an eight-hour day was picked up by various union campaigns, and over time <a href="https://www.parliament.nz/mi/get-involved/features/labour-day-celebrates-8-hour-working-day/">achieved some recognition in law</a>.</p>
<p>More than 180 years after Parnell made his stand, New Zealanders largely take the celebration of Labour Day for granted. But those able to enjoy the coming long weekend might also pause to reflect on what has happened to the eight-hour day in an era of constant digital connection and being “always on”.</p>
<h2>Constant connectivity</h2>
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<a href="https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=800&fit=crop&dpr=1 600w, https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=800&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=800&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1005&fit=crop&dpr=1 754w, https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1005&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/554619/original/file-20231018-19-hejpv0.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1005&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">Samuel Parnell, 1890.</span>
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<p>When Samuel Parnell left work each day, neither his employer nor or his co-workers could contact him. Before any real rapid communications technology, let alone cell phones or email, he had no reason to contemplate the need for a “<a href="https://www.eurofound.europa.eu/en/european-industrial-relations-dictionary/right-disconnect">right to disconnect</a>”. </p>
<p>But our modern, digital work lives raise serious questions about how we reconcile the demands of work with the need for rest, recreation and family life. How do we limit after-hours contact to maintain a boundary between work and non-work time?</p>
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Read more:
<a href="https://theconversation.com/do-you-answer-emails-outside-work-hours-do-you-send-them-new-research-shows-how-dangerous-this-can-be-160187">Do you answer emails outside work hours? Do you send them? New research shows how dangerous this can be</a>
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<p>As expectations of <a href="https://www.researchgate.net/publication/277384882_The_Autonomy_Paradox_The_Implications_of_Mobile_Email_Devices_for_Knowledge_Professionals">constant connectivity and accessibility</a> have increased, that boundary has blurred for many workers. Research has shown how significant after-hours work communication creates <a href="https://theconversation.com/do-you-answer-emails-outside-work-hours-do-you-send-them-new-research-shows-how-dangerous-this-can-be-160187">high stress levels</a>, and long working hours are a health hazard that can even lead to <a href="https://www.stuff.co.nz/world/125155146/long-working-hours-linked-to-stroke-and-heart-disease-deaths--who-study">premature death</a>.</p>
<p>New Zealanders generally <a href="https://www.rnz.co.nz/news/national/443464/new-zealanders-working-harder-not-smarter-productivity-report">work more hours</a> than their OECD counterparts. And there is research that suggests the pressure to always be online is <a href="https://www.hcamag.com/nz/specialisation/mental-health/pressure-to-always-remain-online-driving-burnout-across-new-zealand/447321">driving burnout</a> around the country.</p>
<h2>A growing movement</h2>
<p>For all that, the regulation of working time in New Zealand is <a href="https://ec.europa.eu/social/main.jsp?catId=706&langId=en&intPageId=205">relatively rudimentary and non-prescriptive</a> compared to other jurisdictions. It is covered by <a href="https://www.legislation.govt.nz/act/public/1983/0115/latest/DLM74459.html">section 11B of the Minimum Wage Act</a>, which says employment agreements should be fixed at no more 40 hours a week unless both parties agree to more. </p>
<p>Occupational health and safety law requires both employers and workers to take all practicable steps to ensure health and safety in the workplace, including a <a href="https://www.worksafe.govt.nz/topic-and-industry/fatigue/fatigue-quick-guide/">responsibility to manage fatigue</a>. </p>
<p>But there is no statutory right to disconnect, even though the concept has been <a href="https://www.afr.com/work-and-careers/workplace/why-there-s-a-growing-push-for-the-right-to-disconnect-20230807-p5duko">gaining traction overseas</a>.</p>
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Read more:
<a href="https://theconversation.com/4-day-work-week-trials-have-been-labelled-a-resounding-success-but-4-big-questions-need-answers-201476">4-day work week trials have been labelled a ‘resounding success’. But 4 big questions need answers</a>
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<p>It was first proposed in France in 2013, with a <a href="https://www.eurofound.europa.eu/fr/node/18930">national agreement</a> encouraging businesses to specify periods when work communications devices should be switched off. This became law in 2017, regulated by a “Droit à la Déconnexion” (right to disconnect) article in the Labour Code, which refers to the need for “respect for rest, personal life and family”. </p>
<p>Several European nations <a href="https://cooperante.uni.lodz.pl/wp-content/uploads/2020/08/wpef20019.pdf">followed France’s lead</a>, and other countries (including <a href="https://www.ey.com/en_gl/tax-alerts/kenya-considers-legal-right-for-remote-workers-to-disconnect-and-establish-specific-working-hours">Kenya</a>, <a href="https://www.dnaindia.com/india/report-dna-explainer-now-you-will-have-right-to-ignore-employers-calls-after-office-hours-right-to-disconnect-bill-2922357">India</a>, <a href="https://www.loc.gov/item/global-legal-monitor/2020-08-24/argentina-new-law-on-telework-promulgated/">Argentina</a>, and <a href="https://www.gmanetwork.com/news/topstories/nation/818751/senate-bill-mandates-workers-rest-hours/story/">the Philippines</a>) have either implemented, or are considering establishing, such a right.</p>
<p>Early forms of regulation have been relatively light, simply requiring employers of a certain size to have a policy, or to consult with worker representatives about developing one.</p>
<p>But more prescriptive law is emerging. In Portugal, for example, <a href="https://www.theguardian.com/commentisfree/2021/nov/18/portugal-bosses-work-hours-right-to-disconnect">employers must not contact employees</a> outside working hours, except in emergencies. There are <a href="https://www.theguardian.com/commentisfree/2021/nov/18/portugal-bosses-work-hours-right-to-disconnect">sanctions available</a> if employers transgress.</p>
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Read more:
<a href="https://theconversation.com/how-businesses-can-best-help-employees-disconnect-from-work-174522">How businesses can best help employees disconnect from work</a>
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<h2>New Zealand lagging</h2>
<p>It isn’t only governments looking into a right to disconnect. Following the <a href="https://theconversation.com/as-boundaries-between-work-and-home-vanish-employees-need-a-right-to-disconnect-158897">example of the Victorian Police</a>, some of Australia’s <a href="https://www.abc.net.au/news/2021-04-07/right-to-disconnect-fight-to-expand-trade-union-eba-push/100050264">biggest trade unions</a> are now bargaining to have the right included in enterprise agreements. </p>
<p>In the private sector, some progressive companies (<a href="https://www.hcamag.com/nz/specialisation/corporate-wellness/should-new-zealand-consider-a-right-to-disconnect-law/409567">including in New Zealand</a>) are beginning to get on board, voluntarily implementing their own policies.</p>
<p>But despite New Zealand workers being among the first in the world to fight for and claim the eight-hour working day, the right to disconnect has not appeared anywhere on the local policy horizon. It’s a conversation the country should have.</p>
<p>In the meantime, there are small steps we can take as individuals – starting with making work emails outside of working hours the <a href="https://www.emailcharter.info/">exception, rather than the rule</a>.</p>
<p>It might not change the world overnight. But if enough people join the movement, it could lead to healthier work-life balance for everyone. Samuel Parnell would surely approve.</p><img src="https://counter.theconversation.com/content/215444/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Amanda Reilly does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>This Labour weekend we celebrate the eight-hour workday. But with technology blurring the line between job and home, we need to ask why our workplace law hasn’t kept pace with other countries.Amanda Reilly, Senior Lecturer in Commercial Law, Te Herenga Waka — Victoria University of WellingtonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2148572023-10-09T19:10:38Z2023-10-09T19:10:38ZDoes your employer have to tell if they’re spying on you through your work computer?<figure><img src="https://images.theconversation.com/files/552447/original/file-20231006-15-qydplx.jpg?ixlib=rb-1.1.0&rect=45%2C54%2C5986%2C3961&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>The COVID pandemic stimulated an irreversible shift in where, when and how we work. This 21st-century model of working – dubbed the “new normal” – is characterised by increased <a href="https://theconversation.com/morning-or-evening-type-choice-of-hours-is-the-next-big-thing-in-workplace-flexibility-194170">flexibility and productivity gains</a>. </p>
<p>Yet this reshaping of work, underpinned by technology, has also <a href="https://theconversation.com/work-life-balance-in-a-pandemic-a-public-health-issue-we-cannot-ignore-155492">eroded our work-life boundaries</a> – and persisting 20th-century attitudes are preventing us from successfully managing the new normal.</p>
<p>We find ourselves struggling with “<a href="https://www.microsoft.com/en-us/worklab/why-managers-and-employees-cant-agree-on-how-much-work-is-getting-done">productivity paranoia</a>”: a term used to describe managers’ concerns that remote and hybrid workers aren’t doing enough when not under supervision. </p>
<p>As a result, we’re seeing a surge in the use of electronic monitoring and surveillance devices in the workplace. These devices allow managers to “watch over” employees in their absence. This practice raises serious legal and ethical concerns.</p>
<h2>Big bossware is here</h2>
<p>In a survey of 20,000 people across 11 countries, <a href="https://www.microsoft.com/en-us/worklab/work-trend-index/hybrid-work-is-just-work">Microsoft reported</a> 85% of managers struggled to trust their remote-working employees. In Australia, this figure was 90%.</p>
<p>In 2021, American research and consulting firm Gartner estimated
the number of large firms tracking, monitoring and surveilling their workers had <a href="https://www.gartner.com/en/articles/the-right-way-to-monitor-your-employee-productivity">doubled</a> to 60% since the start of the pandemic. </p>
<p>Electronic monitoring and surveillance technology can capture screenshots of an employee’s computer, record their keystrokes and mouse movements, and even activate their webcam or microphones. </p>
<p>On one hand, these <a href="https://home.coworker.org/worktech/">“bossware” tools</a> can be used to capture employee and production statistics, providing businesses with useful evidence-based analytics. </p>
<p>The other side is much darker. These devices are indiscriminate. If you’re working from home they can pick up audio and visual images of your private life. </p>
<p>Managers can be sent notifications when data “indicate” an employee is taking breaks or getting distracted. </p>
<p>Some aspects of electronic monitoring and surveillance are legitimate. For instance, it may be necessary to safeguard an organisation’s data access and transfers. </p>
<p>But where are the boundaries? Is your organisation legally obliged to tell you about electronic intrusions? Alternatively, what can you do if you find out you’re being watched without being informed?</p>
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Read more:
<a href="https://theconversation.com/not-big-brother-but-close-a-surveillance-expert-explains-some-of-the-ways-were-all-being-watched-all-the-time-194917">Not Big Brother, but close: a surveillance expert explains some of the ways we’re all being watched, all the time</a>
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<h2>The legal framework</h2>
<p>A complex array of regulation governs workplace privacy and surveillance in Australia. <a href="https://www.ag.gov.au/sites/default/files/2023-02/privacy-act-review-report_0.pdf">Proposed reforms</a> to the Privacy Act 1988 are set to strengthen privacy protections for private-sector employees. </p>
<p>However, this legislation doesn’t specifically cover workplace surveillance. Instead, a patchwork of laws in each state and territory regulate this matter. </p>
<p>Specific legislation regulates the surveillance of workers in <a href="https://legislation.nsw.gov.au/view/html/inforce/current/act-2005-047">New South Wales</a> and the <a href="https://www.legislation.act.gov.au/a/2011-4">Australian Capital Territory</a>. Importantly, surveillance must not be undertaken unless the employer has provided at least 14 days’ notice. This notice must include specific details about the surveillance that will be carried out. Employers must also develop and adhere to a surveillance policy. </p>
<p>In both states, employers can only record visual images of an employee while they’re “at work”. This is broadly defined to capture any place where work is carried out. </p>
<p>Covert surveillance is prohibited unless the employer has obtained a court order. In this case it’s restricted to situations where the employee is suspected of unlawful activity.</p>
<p>Even then, a covert surveillance order would not be granted where this unduly intrudes on the employee’s privacy. Covert surveillance for the purpose of monitoring work performance is expressly prohibited. </p>
<p>Other states and territories don’t have specific electronic workplace surveillance laws. Employers must instead comply with more general surveillance legislation.</p>
<p>Broadly speaking, employees must give consent, express or implied, to any surveillance. In practice, such consent is usually obtained through the implementation of a workplace surveillance policy, which employees must agree to when they accept the job. So if you’ve signed a contract without reading the fine print, you may have agreed to being surveilled via electronic monitoring tools.</p>
<p>Currently, <a href="https://www.legislation.qld.gov.au/view/html/inforce/current/act-1971-050">Queensland</a> and <a href="https://www.legislation.tas.gov.au/view/html/inforce/current/act-1991-021">Tasmania</a> provide the most limited protection for employees. Their surveillance legislation is limited to the regulation of listening devices. </p>
<p>Enterprise agreements, employment contracts and workplace policies may also limit or prohibit the use of surveillance devices. In practice, however, most employees will lack the bargaining power to negotiate the inclusion of any such terms in their employment contract.</p>
<h2>The law is failing to keep up</h2>
<p>In 2022, a parliamentary <a href="http://classic.austlii.edu.au/cgi-bin/sinodisp/au/other/nsw/NSWLCSelCPubInq/2022/7.html?stem=0&synonyms=0&query=nsw%20consol_act%20wsa2005245%20s10">select committee</a> reporting on the future of work in NSW observed the current regulatory framework is failing to keep pace with rapid advancements in electronic monitoring and surveillance. </p>
<p>The report criticised legislation that simply allows an employer to notify workers surveillance will be carried out, with no mechanism for this to be negotiated or challenged. The situation is slightly better in the ACT, where employers must consult with workers in good faith about any proposed surveillance activities.</p>
<p>Workers who suspect their employer is spying on them should review their workplace surveillance policies. They may need to reflect carefully on how they use their work computer.</p>
<p>Where an enterprise agreement applies, the <a href="https://www.fwc.gov.au/issues-we-help/common-issues-workplace/resolve-dispute-your-workplace">Fair Work Commission</a> can arbitrate surveillance disputes. A worker who is dismissed following intrusive surveillance may be able to <a href="https://www.fwc.gov.au/job-loss-or-dismissal/unfair-dismissal/process-unfair-dismissal-claims">challenge the dismissal</a> on the basis of it being unfair. </p>
<p>Workers who haven’t been informed of their employer’s surveillance practices can also lodge a complaint with the relevant authority or regulator, who may have powers to investigate and prosecute offences. </p>
<p>To thrive in our “new normal” work landscape, we’ll need to address the gap between the existing legal protections and the capabilities (and potential harms) of electronic monitoring and surveillance. For now, it remains a significant legal and ethical challenge. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/bunnings-kmart-and-the-good-guys-say-they-use-facial-recognition-for-loss-prevention-an-expert-explains-what-it-might-mean-for-you-185126">Bunnings, Kmart and The Good Guys say they use facial recognition for 'loss prevention'. An expert explains what it might mean for you</a>
</strong>
</em>
</p>
<hr>
<img src="https://counter.theconversation.com/content/214857/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Jacqueline Meredith receives funding from an Australian Government Research Training Program Scholarship.</span></em></p><p class="fine-print"><em><span>Peter Holland does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The electronic monitoring and surveillance of employees is on the rise as growing numbers of people switch to hybrid and at-home work.Jacqueline Meredith, Lecturer in Law, Swinburne University of TechnologyPeter Holland, Professor in Human Resource Management and Employee Relations, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2129462023-09-27T12:24:22Z2023-09-27T12:24:22ZHarassment and abuse perceived to harm poor women less − new research finds a ‘thicker skin’ bias<p>People think sexual harassment and domestic abuse are less harmful for women in poverty than for higher-income women, according to <a href="https://doi.org/10.1016/j.jesp.2023.104472">four studies</a> involving 3,052 Americans conducted by <a href="https://scholar.google.com/citations?user=McvKSycAAAAJ&hl=en&oi=ao">my</a> <a href="https://scholar.google.com/citations?user=hNlMsXkAAAAJ&hl=en&oi=ao">colleagues</a> and <a href="https://scholar.google.com/citations?hl=en&user=H-H6_qYAAAAJ">me</a>. We also found that people believe women in poverty require less help and support when experiencing these kinds of sexual misconduct. </p>
<p>My research partners and I recruited participants of different ages, genders and incomes. We asked them to read about either a low-income woman or a high-income woman who was dealing with workplace sexual harassment or intimate partner abuse. Then we had participants rate how distressing these instances would be for the woman. </p>
<p>The harassment events described inappropriate behavior from a co-worker, such as sexual comments and unwanted advances, while domestic abuse events included threats, demeaning comments and physical violence from the woman’s partner. In some of the studies, participants also rated how much social support or bystander intervention would be necessary for these events.</p>
<p>Our participants rated the harassment and abuse events as less upsetting for the lower-income woman than for the higher-income woman. They also thought the lower-income woman would need less emotional support from friends and family and less help from bystanders than the higher-income woman. On average, participants thought she needed only <a href="https://doi.org/10.1016/j.jesp.2023.104472">85% as much help</a> as her higher-income counterpart. </p>
<p>The result was the same whether the woman was white, Black, East Asian or Latina. Both low- and high-income study participants shared this pattern of judgment – as did male and female participants.</p>
<h2>Why it matters</h2>
<p>There is no data that shows lower-income women are less affected by gender-based violence – in fact, there is evidence they are often <a href="https://doi.org/10.1891/0886-6708.20.6.625">more affected</a>.</p>
<p>Women in poverty are <a href="https://nwlc.org/resource/out-of-the-shadows-an-analysis-of-sexual-harassment-charges-filed-by-working-women">more likely to experience sexual harassment</a> and <a href="https://doi.org/10.1007/s10896-018-0019-8">domestic abuse</a> – and <a href="https://doi.org/10.5070/L3262045668">have more difficulty finding support</a> after experiencing sexual misconduct. Our research suggests that stereotypes about toughness may contribute to the neglect low-income women encounter when they seek help after violence. </p>
<p>It isn’t that study participants didn’t like the low-income woman. In fact, in our studies, participants rated the low-income woman as friendlier and warmer than the higher-income woman. But liking the low-income woman didn’t prevent participants from thinking the harassment and abuse would be less harmful for her. </p>
<p>Such perceptions may have wide-ranging consequences. For example, low-income women may not receive the care they need from those around them. They also may be disproportionately neglected by those in powerful positions, such as human resources managers and police investigating domestic abuse. </p>
<p>Biased perceptions may help explain why lower-income women <a href="https://doi.org/10.5070/L3262045668">encounter more barriers in the legal system</a>. </p>
<p>Already, the neglect of low-income women has been effectively part of U.S. federal workplace law based on <a href="https://brooklynworks.brooklaw.edu/blr/vol70/iss3/1/">several rulings from courts hearing sexual harassment claims</a>. For example, in the 1995 case <a href="https://scholar.google.com/scholar_case?case=6933014541839038196&q=Gross+v.+Burggraf&hl=en&as_sdt=40000006&as_vis=1">Gross v. Burggraf</a>, the court ruled that sexually harassing behaviors in a “white collar” workplace do not necessarily qualify as harassment in “blue collar” contexts like construction sites. </p>
<p>This logic echoes our study participants’ judgments – and also partially explains why low-income women have spoken out about being <a href="https://www.nytimes.com/2017/12/20/us/the-metoo-moment-blue-collar-women-ask-what-about-us.html">sidelined by the #MeToo movement</a>.</p>
<h2>What other research is being done</h2>
<p>Our research fits with a <a href="https://doi.org/10.1002/ejsp.2843">growing</a> <a href="https://doi.org/10.1016/j.jesp.2017.09.002">body</a> <a href="https://doi.org/10.1037/xap0000442">of work</a> examining beliefs around experiencing adversity. People seem to widely <a href="https://doi.org/10.1177/1368430215625781">endorse the idea</a> “what doesn’t kill you makes you stronger.” Individuals who have experienced past hardship, such as women experiencing financial difficulties, are perceived by others to have grown a “<a href="https://doi.org/10.1017/bpp.2020.33">thicker skin</a>,” making them less affected by new negative events.</p>
<p>Our findings show this kind of bias exists for low-income women – and highlight the need for strategies to counteract this biased belief.</p>
<p><em>The <a href="https://theconversation.com/us/topics/research-brief-83231">Research Brief</a> is a short take on interesting academic work.</em></p><img src="https://counter.theconversation.com/content/212946/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Nathan Cheek received funding from the National Science Foundation. </span></em></p>While women in poverty are more likely to experience sexual harassment and domestic abuse than higher-income women, people assume it is less distressing for them.Nathan Cheek, Assistant Professor of Psychological Sciences, Purdue UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2113392023-08-10T19:59:50Z2023-08-10T19:59:50ZCan employers stop you working from home? Here’s what the law says<figure><img src="https://images.theconversation.com/files/542057/original/file-20230810-29-k9dewx.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C7940%2C3773&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Shutterstock</span></span></figcaption></figure><p>Zoom, the videoconferencing company whose fortunes soared with the pandemic-driven shift to working from home, has <a href="https://www.theguardian.com/technology/2023/aug/07/zoom-tells-staff-to-come-into-the-office-at-least-two-days-a-week">reportedly</a> told its staff to get back to the office – for at least two days a week, if the commute is no more than 80 kilometres. </p>
<p>It’s part of a trend of employers winding back the work-from-home flexibility that enabled most to keep operating through the pandemic in 2020 and 2021.</p>
<p>In Australia, close to 90% of employers have implemented mandatory in-office days, according to <a href="https://www.roberthalf.com.au/press/87-australian-companies-have-implemented-mandatory-office-days-staff">a survey of 300 hiring managers</a> commissioned by recruitment agency Robert Half. The survey shows 19% insisting on five days a week, 28% on four days, and 26% on three days. Almost a third of respondents reported at least one employee quitting in response.</p>
<p>Particularly for parents and younger workers, working from home is not something they will readily give up. </p>
<p>Which raises the question: can an employer, having first directed you to work from home, now turn around and mandate you don’t?</p>
<p>In many cases, the short answer is yes – though some people have a stronger case to argue for flexible work – and correct procedures must be followed. </p>
<h2>Is it a ‘lawful and reasonable’ direction?</h2>
<p>Whether you are employed permanently, as a casual or on a short-term contract, you are required to follow “lawful and reasonable” directions from your employer. Even if this isn’t stated specifically anywhere, Australian courts have ruled this requirement is “implied” in every employment contract. </p>
<p>A direction to return to the workplace will be lawful and reasonable except in extreme cases – for example, where it is contrary to a government directive or another law. </p>
<p>If you can perform your role at home and have a legitimate reason to do so – such as an underlying health issue – you may have grounds to argue a directive to return to the office is not reasonable.</p>
<p>But a detailed and considered plan requiring employees to return to the workplace safely will be lawful and reasonable. Failing to comply with this direction may be a valid reason for disciplinary action, including dismissal. </p>
<h2>Is consultation required?</h2>
<p>If your work is covered by an award or enterprise agreement, you can collectively assert your right to be consulted, on the basis that a return-to-work order constitutes a “major workplace change”. </p>
<p>The Fair Work Ombudsman <a href="https://www.fairwork.gov.au/tools-and-resources/best-practice-guides/consultation-and-cooperation-in-the-workplace">says consultation</a> requires giving notice, discussing the proposed changes, providing written information and giving “prompt consideration” to any matters raised by employees and their representatives.</p>
<p>Even though the employer ultimately doesn’t need consent, the consultation still needs to be genuine and properly consider employees’ views, following the processes set down in the applicable award or agreement. </p>
<p>This is the issue in the dispute over the Commonwealth Bank of Australia directing employees to be in the office 50% of the time. The Finance Sector Union is challenging this in the <a href="https://www.theguardian.com/news/2023/jul/12/commonwealth-bank-wfh-office-rule-union-dispute-work-from-home">Fair Work Commission</a>, arguing the bank breached its obligation to consult. So even if the commission agrees, the policy won’t necessarily change.</p>
<h2>What about flexible work arrangements?</h2>
<p>If your award, enterprise agreement or employment contract contains “workplace flexibility” provisions, you may have rights to work from home or to make a request. </p>
<p>In addition, the national employment standards under the Fair Work Act give employees the right to request “flexible work arrangements” if they’ve been with the employer for at least 12 months, and: </p>
<ul>
<li>are a parent or carer of a child of school age or younger </li>
<li>a carer<br></li>
<li>have a disability </li>
<li>are at least 55 years of age<br></li>
<li>are pregnant </li>
<li>are experiencing family or domestic violence, or caring or supporting an immediate family or household member experiencing family or domestic violence.<br></li>
</ul>
<p>Casual employees have similar rights if they have been working regularly and systematically for at least 12 months and have a reasonable expectation of continued work on the same basis. </p>
<p>Employers who get a request for flexible working arrangements need to respond in writing <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/flexible-working-arrangements">within 21 days</a>.</p>
<p>An employer can only refuse a request on “reasonable business grounds”, and where they have genuinely tried to agree to alternative arrangements to accommodate the employee’s circumstances, and have considered the consequences for any refusal. </p>
<p>Reasonable business grounds include such factors as the size and nature of the business. These include the request being too costly and having a significant adverse effect on efficiency, productivity or customer service. </p>
<p>As of June 6 2023, employees have had a right of appeal to the Fair Work Commission, which has new, more expansive powers to resolve such disputes by mediation or conciliation, or by making a recommendation, and, if required, by arbitration. </p>
<h2>Reasonable adjustments for employees</h2>
<p>The right of review for flexible work arrangement requests, though limited to certain employee categories, could well become a hotly contested area.</p>
<p>If an organisation mandates their workers return to the workplace – whether exclusively or in part – the employer needs to provide clear guidelines. The “humane way” to introduce such a policy (regardless of any legal requirement) is to consult with employees over the change. </p>
<p>If an employee seeks a flexible work arrangement, the employer needs to actively engage with them and give them opportunities to provide supporting evidence regarding any special circumstances. That way, they can accommodate employees – so far as is practicable – and if required, make reasonable adjustments. </p>
<p>In sectors with persistent labour shortages, employees will have more leverage to have their views heard and negotiate and, in some cases, even request a review.</p>
<p><em>* If you’re an employee <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace#ways-to-request-flexible-working-arrangements">wanting to request</a> flexible working arrangements, such as working from home, or an employer wondering <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace/flexible-working-arrangements">how to handle</a> such requests, you can read more at <a href="https://www.fairwork.gov.au/employment-conditions/flexibility-in-the-workplace">the Fair Work Ombudsman</a>.</em></p><img src="https://counter.theconversation.com/content/211339/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giuseppe Carabetta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>If an organisation mandates their workers return to the workplace – whether exclusively or in part – it needs to provide clear guidelines.Giuseppe Carabetta, Associate Professor, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/2111012023-08-07T04:16:08Z2023-08-07T04:16:08ZFormer dancers have initiated legal action against Lizzo, reminding us arts workers deserve the same workplace protections as any other industry<p>Last month, multi-Grammy winner Lizzo graced stadiums across Australia with her electrifying performances. <a href="https://www.theage.com.au/culture/music/lizzo-stuns-melbourne-despite-technical-glitch-20230718-p5dp24.html">Glowing five-star reviews</a> celebrated Lizzo, the stage name of Melissa Viviane Jefferson, for attracting <a href="https://www.theguardian.com/music/2023/jul/15/this-is-our-moment-together-lizzo-kicks-off-australian-tour-with-spectacular-celebratory-joy">audiences of that are inclusive and celebrate love</a>. Over the past three years, Lizzo has shifted from cult performer to a global icon with her fourth album and international tour. </p>
<p>Lizzo is known for her unique blend of self-acceptance and body positivity. Her personal brand radiates “unbridled joy and unapologetic self-confidence.” As a vocal supporter of fat positive language, Lizzo has <a href="https://theconversation.com/lizzo-proudly-calls-herself-a-fat-woman-are-we-allowed-to-as-well-209682">faced significant criticism</a> and hostility online.</p>
<p>However, <a href="https://variety.com/2023/music/news/former-lizzo-dancers-sexual-harassment-weight-shaming-lawsuit-1235684625/">a recent revelation</a> has sent shock waves through fans and media circles, demonstrating a potential disconnect between her public persona and the behind-the-scenes music industry culture.</p>
<p>Three former dancers have taken <a href="https://www.bbc.com/news/entertainment-arts-66379169">legal action against Lizzo</a>, her dance captain, and her production company, Big Grrrl Big Touring, levelling allegations of sexual harassment and the creation of a hostile work environment.</p>
<p><a href="https://deadline.com/wp-content/uploads/2023/08/Lizzo-harassment-suit.pdf?utm_source=Sailthru&utm_medium=email&utm_campaign=dinner8223%20-%20Wed%20Aug%2002%202023&utm_term=Subscription%20List%20-%20NYM-Daily#_ga=2.215346071.1688556087.1691024569-1381651416.1682308270">The legal documents</a>, filed in Los Angeles, outline nine charges against Lizzo and her team, many of which fall under California’s Fair Employment and Housing Act. The charges allege Lizzo and her management pressured dancers into unwanted sexual situations, weight-shamed employees and failed to prevent religious and sexual harassment in the workplace. The dancers also claim that, as their employment was precarious, they felt they had to comply with requests that made them uncomfortable or risk losing their jobs.</p>
<p><a href="https://inews.co.uk/culture/music/lizzo-self-love-mantras-branding-2521232">Media and fan commentary</a> has underscored the apparent disconnect between the messages of love and self-acceptance promoted by “brand Lizzo” and the reported experiences of the plaintiffs.</p>
<p>While Lizzo disputes their accounts, the issue will now play out in both the courts and social media. In the middle of this, the dancers’ claims resonate with the experiences of many musicians and arts professionals in Australia.</p>
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<h2>Sexual harassment and bullying in Australian music</h2>
<p>In 2022, an <a href="https://www.abc.net.au/news/2022-09-01/music-trade-harassment-rife-review-finds/101395570">independent review</a> of the Australian music industry exposed rampant instances of sexual harassment and bullying.</p>
<p>More than 1,600 individuals participated in the <a href="https://musicindustryreview.com.au/">Raising their Voices</a> study, which revealed pervasive inequalities and poor workplace behaviour within the industry. Women and marginalised communities were most likely to be victims of harassment and bullying. Harassment of those associated with the music industry goes beyond workers, extending <a href="https://theconversation.com/60-of-women-and-non-binary-punters-and-artists-feel-unsafe-in-melbournes-music-spaces-205399">to audiences</a> and others such as partners and service providers, pointing to a broader cultural concern demanding immediate attention.</p>
<p>Responding to the report, <a href="https://www.smh.com.au/politics/federal/crackdown-on-sexual-harassment-abuse-and-bullying-in-the-arts-20230127-p5cfy3.html">Federal Arts Minister Tony Burke emphasized</a>:</p>
<blockquote>
<p>All Australian artists and arts workers deserve safe and equitable workplaces. Safety doesn’t only encompass physical security, but also entails an environment free from harassment and bullying.</p>
</blockquote>
<p>Under the umbrella of the new national cultural policy, the government also established the Centre for Arts and Entertainment Workplaces. This institution is tasked with overseeing improvements in <a href="https://theconversation.com/pay-safety-and-welfare-how-the-new-centre-for-arts-and-entertainment-workplaces-can-strengthen-the-arts-sector-198859">pay, safety, and welfare within the arts sector</a>.</p>
<p>Australia’s legal obligations for workplaces are clear. The Anti-Discrimination and Human Rights Legislation Amendment (Respect at Work) Act 2022, enacted in December 2022, <a href="https://www.respectatwork.gov.au/new-positive-duty-employers-prevent-workplace-sexual-harassment-sex-discrimination-and-victimisation">introduced a positive duty for employers</a> to ensure a safe and respectful work environment. </p>
<p>Organisations are required to take reasonable steps to prevent sexual harassment and eliminate behaviours that foster a hostile workplace. Importantly, this must be done regardless of any complaints or allegations.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/lizzo-proudly-calls-herself-a-fat-woman-are-we-allowed-to-as-well-209682">Lizzo proudly calls herself a 'fat' woman. Are we allowed to as well?</a>
</strong>
</em>
</p>
<hr>
<h2>The workplace is more than an office</h2>
<p>Two considerations arise when discussing appropriate workplace conduct in the arts. Firstly, the definition of the workplace is crucial. Raising their Voices shows sexual harassment occurs in various settings, including offices, music venues, work-related gatherings, and during tours.</p>
<p>Legally, the concept of a <a href="https://sexualharassmentaustralia.com.au/after-hours-behaviour/#Definition_of_a_workplace">workplace extends beyond the physical location of work</a>. It encompasses “any place where individuals engage in work-related activities associated with their role as a participant.” For touring musicians, this definition goes beyond the stages they perform on, encompassing after-parties and social events.</p>
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<h2>What you should expect as an artist</h2>
<p>Artists should expect an environment free from bullying, harassment and any form of discrimination. All workers must feel safe to exercise their workplace rights and call out any perceived unjust treatment. Some 71% of Raising their Voices respondents felt their career progression was negatively impacted by speaking out.</p>
<p>Workplace behaviours are largely driven by <a href="https://www.respectatwork.gov.au/organisation/prevention/organisational-culture">organisational culture</a>, or “the way we do things around here.” A positive culture is one based on respect, clear communication and constructive conflict management. </p>
<p>Leaders are vital in role-modelling acceptable workplace behaviours. In the music scene, where many workers are “gig workers”, leaders play a crucial role. Good leaders demonstrate workplace norms and ensure the organisation has appropriate policies and processes in place. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/60-of-women-and-non-binary-punters-and-artists-feel-unsafe-in-melbournes-music-spaces-205399">60% of women and non-binary punters and artists feel unsafe in Melbourne's music spaces</a>
</strong>
</em>
</p>
<hr>
<p>As Prime Minister Anthony Albanese <a href="https://www.smh.com.au/culture/art-and-design/streaming-quotas-coming-as-albanese-slams-calculated-neglect-of-the-arts-20230130-p5cgej.html">declared at the launch of the national cultural policy</a>, “Arts jobs are real jobs.” </p>
<p>This statement underscores the fact arts workers deserve the same workplace protections as any other industry. Arts leaders must not confuse entertainment with an unrestrained party atmosphere.</p>
<p>It remains crucial for arts workers, whether in management or creative roles, to fully comprehend their rights and responsibilities. Equally important is the recognition that being on tour, despite its allure for audiences, is fundamentally work.</p><img src="https://counter.theconversation.com/content/211101/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Kim Goodwin does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Three former dancers have taken legal action against Lizzo, levelling allegations of sexual harassment and the creation of a hostile work environment.Kim Goodwin, Lecturer, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1898262022-09-02T12:18:33Z2022-09-02T12:18:33ZAmerica is in the middle of a labor mobilization moment – with self-organizers at Starbucks, Amazon, Trader Joe’s and Chipotle behind the union drive<figure><img src="https://images.theconversation.com/files/482372/original/file-20220901-27-7ytxub.jpg?ixlib=rb-1.1.0&rect=5%2C0%2C3988%2C2365&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A revised movement on the backs of young workers?</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/union-leaders-gather-in-front-of-the-ldj-5-amazon-warehouse-news-photo/1241255197?adppopup=true">Calla Kessler for The Washington Post via Getty Images</a></span></figcaption></figure><p>Labor Day 2022 comes smack bang in the middle of what is increasingly looking like a pivotal year in the history of American unions.</p>
<p>The summer has seen a steady stream of workforce mobilizations. Employees at <a href="https://www.theguardian.com/us-news/2022/jul/28/trader-joes-union-employees-massachusetts">Trader Joe’s locations in Massachusetts</a> <a href="https://www.wgbh.org/news/national-news/2022/08/15/trader-joes-unions-could-signal-the-future-of-grocery-store-organizing-food-writer-says">and Minneapolis</a> both voted to unionize. Meanwhile, restaurant chain Chipotle saw the <a href="https://www.washingtonpost.com/business/2022/08/25/chipotle-union-victory-fastfood-michigan/">first of its stores unionize</a>, following a vote by workers at an outlet in Lansing, Michigan.</p>
<p>It comes on the back of a wave of successful efforts to mobilize at Starbucks and Amazon. The growth of unionized stores at Starbucks in particular has been stunning. Since baristas <a href="https://apnews.com/article/starbucks-union-vote-buffalo-c7dc3c2ec8b838e9f4ed641f54fc9035">in Buffalo, New York, became the first at the chain to unionize</a> in December 2021, colleagues at a further 234 outlets have followed suit in recent months.</p>
<p>Likewise, the success of an independent <a href="https://www.amazonlaborunion.org/">Amazon Labor Union</a> – <a href="https://www.washingtonpost.com/technology/2022/04/01/chris-smalls-amazon-union/">formed in 2020 by Chris Smalls</a>, an <a href="https://www.npr.org/2022/04/02/1090353185/amazon-union-chris-smalls-organizer-staten-island">Amazon worker fired</a> for protesting what he saw as inadequate COVID-19 safety precautions – in forming the <a href="https://www.vox.com/recode/23005336/amazon-union-new-york-warehouse">first plant of the retail giant to have a unionized workforce</a> has inspired others to do likewise.</p>
<p>It comes as polling shows that public support of unions is at its <a href="https://news.gallup.com/poll/398303/approval-labor-unions-highest-point-1965.aspx?utm_source=newsletter&utm_medium=email&utm_campaign=newsletter_axiosmarkets&stream=business">highest since 1965</a>, with the backing of 71% of Americans. Something is definitely happening in the labor movement in 2022.</p>
<h2>A different kind of organizing</h2>
<p>As a <a href="https://cob.sfsu.edu/directory/john-logan">scholar of the labor movement</a> who has observed union drives for two decades, what I find almost as striking as the victories is the unconventional nature of the organizing campaigns. </p>
<p>Workers at Amazon and Trader Joe’s are setting up independent unions, whereas at Starbucks and Chipotle, employees are teaming up with established unions. But that difference apart, the dynamics at play are remarkably similar: The campaigns are being led by <a href="https://prospect.org/labor/generational-worker-revolt-hits-its-stride-amazon-union/">determined young workers</a>. For the most part, it is bottom-up unionizing, rather than being driven by official, seasoned union representatives.</p>
<p>Inspired by pro-union sentiment in political movements, such as <a href="https://berniesanders.com/issues/workplace-democracy/">Bernie Sanders’ presidential bids</a>, <a href="https://www.theguardian.com/us-news/2018/feb/10/black-lives-matter-labor-unions-factory-workers-unite">Black Lives Matter</a> and the <a href="https://labor.dsausa.org/">Democratic Socialists of America</a>, individuals are spearheading the efforts for workplace reform rather than professional union organizers. Indeed, one would be hard-pressed to find many experienced organizers among the recent successful campaigns. </p>
<p>Instead, the campaigns have involved a significant degree of “self-organization” – that is, workers “talking union” to each other in the warehouse and coffee shops and reaching out to colleagues in other shops in the same city and across the nation. <a href="https://www.cornellpress.cornell.edu/book/9780801457227/building-more-effective-unions/#bookTabs=1">This marks a sea change</a> from the way the labor movement has traditionally operated, which has tended to be more centralized and led by seasoned union officials. </p>
<h2>A labor revival</h2>
<p>Perhaps more important than the victories at Starbucks, Amazon, Trader Joe’s and Chipotle themselves is their potential for creating a sense of optimism and enthusiasm around union organizing, especially among younger workers. </p>
<p>The elections follow <a href="https://psmag.com/economics/what-caused-the-decline-of-unions-in-america">years of union decline in the U.S.</a>, both in terms of membership and influence.</p>
<p>Prior to the COVID-19 pandemic, these recent labor wins would probably have seemed unimaginable. Powerful, wealthy <a href="https://www.engadget.com/amazon-spent-43-million-on-anti-union-consultants-in-2021-alone-082051777.html">corporations like Amazon</a> <a href="https://www.theguardian.com/business/2021/nov/23/starbucks-aggressive-anti-union-effort-new-york-stores-organize">and Starbucks</a> appeared invincible then, at least in the context of <a href="https://www.nlrb.gov/">National Labor Relations Board</a> rules, which are stacked heavily <a href="https://www.epi.org/publication/unprecedented-the-trump-nlrbs-attack-on-workers-rights/">against pro-union workers</a>. Under NLRB rules, employers can – and do – force workers, on the threat of dismissal, to attend <a href="https://www.theguardian.com/business/2021/nov/23/starbucks-aggressive-anti-union-effort-new-york-stores-organize">anti-union sessions</a>, often led by <a href="https://www.engadget.com/amazon-spent-43-million-on-anti-union-consultants-in-2021-alone-082051777.html">highly paid external consultants</a>.</p>
<p>Starbucks <a href="https://www.bloomberg.com/news/articles/2022-03-15/starbucks-retaliated-against-pro-union-staff-nlrb-alleges">has said it has been</a> “consistent in denying any claims of anti-union activity. They are categorically false.” But the NLRB has alleged that the coffee chain <a href="https://www.nlrb.gov/news-outreach/news-story/nlrb-region-15-wins-injunction-requiring-starbucks-to-rehire-seven">has fired and coerced workers</a>, placed union supporters <a href="https://www.cnbc.com/2022/05/06/starbucks-accused-of-more-than-200-labor-violations-in-nlrb-complaint.html">under surveillance and retaliated</a> against them.</p>
<p>The NLRB has also <a href="https://www.pbs.org/newshour/economy/labor-board-files-complaint-against-starbucks-for-withholding-raises-from-unionized-stores">filed a complaint against Starbucks</a> for unlawfully withholding wage and benefit increases from pro-union workers, and currently has almost 300 open unfair labor practices charges lodged against Starbucks management. Amazon, which in the past <a href="https://www.cnbc.com/2020/09/01/amazon-seeks-intelligence-analyst-to-track-labor-organizing-threats.html">has advertised for analysts to monitor “labor organizing threats</a>,” has said it <a href="https://www.cnbc.com/2020/10/24/how-amazon-prevents-unions-by-surveilling-employee-activism.html">respects workers’ rights to join or not join unions</a>.</p>
<p>The significance of the recent victories is not primarily about the <a href="https://www.npr.org/2022/04/01/1089318684/amazon-labor-union-staten-island-election-bessemer-alabama-warehouse-workers">8,000 new union members</a> at Amazon or a gradual flow of new union members at Starbucks. It is about instilling in workers the belief that if pro-union workers can win at Amazon and Starbucks, they can win anywhere.</p>
<p>Historic precedents show that labor mobilization can be infectious.</p>
<p>In 1936 and 1937, workers at the Flint plant of General Motors <a href="https://www.history.com/news/flint-sit-down-strike-general-motors-uaw">brought the powerful automaker to its knees</a> in a sit-down strike that <a href="https://labornotes.org/2009/07/once-started-sit-downs-spread-wildfire">quickly inspired similar action</a> elsewhere. In the reported words of a Chicago doctor, when explaining a subsequent sit-down strike by wet nurses in the city: “It’s just one of those funny things. They want to strike because everyone else is doing it.”</p>
<h2>Seizing the moment</h2>
<p>The <a href="https://www.npr.org/2021/10/17/1046850192/the-pandemic-could-be-leading-to-a-golden-age-for-unions">pandemic has created an opportunity for unions</a>.</p>
<p>After working on the front lines for over two years, many essential workers such as those at Amazon and Trader Joe’s <a href="https://www.theguardian.com/business/2021/may/26/starbuck-employees-intense-work-customer-abuse-understaffing">believe they have not been adequately rewarded</a> for their service during the pandemic and have not been treated with respect by their employers. </p>
<p>This appears to have helped spur <a href="https://prospect.org/labor/generational-worker-revolt-hits-its-stride-amazon-union/">the popularity</a> of smaller, workplace-specific unions.</p>
<p>The homegrown nature of these campaigns deprives chains of employing a decades-old trope at the heart of corporate anti-union campaigns: that a <a href="https://one.starbucks.com/">union is an external “third party</a>” that doesn’t understand or care about the concerns of employees and is more interested in collecting dues.</p>
<figure class="align-center ">
<img alt="A pro-union poster is seen on a lamp pole says 'union busting is disgusting' over a Starbucks logo." src="https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/455938/original/file-20220403-23-b2ptyd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Attempts to disparage outside unionizers are blunted when drives are led by company workers.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/pro-union-poster-is-seen-on-a-lamp-pole-outside-starbucks-news-photo/1239452047?adppopup=true">Toby Scott/SOPA Images/LightRocket via Getty Images</a></span>
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</figure>
<p>But those arguments mostly ring hollow <a href="https://labornotes.org/2022/04/amazon-workers-staten-island-clinch-historic-victory?fbclid=IwAR1pwcYb45xVPpvkuWV0JmkHb_1jwEwkUIwF56-aJFsT2B9O_AahdQj8Kdk">when the people doing the unionizing</a> are colleagues they work alongside day in and day out.</p>
<p>It has the effect of nullifying that central argument of anti-union campaigns despite the <a href="https://www.epi.org/publication/unlawful-employer-opposition-to-union-election-campaigns/">many millions of dollars</a> that companies often pumped into them.</p>
<h2>An unfavorable legal landscape</h2>
<p>This “self-organization” is consistent with what was envisioned by the authors of the <a href="https://www.nlrb.gov/about-nlrb/who-we-are/our-history/1935-passage-of-the-wagner-act">1935 Wagner Act</a>, the statute that provides the foundation of today’s union representation procedures. </p>
<p>The National Labor Relations Board’s first chair, J. Warren Madden, understood that self-organization could be fatally undermined if corporations were allowed to engage in anti-union pressure tactics: </p>
<p>“Upon this fundamental principle – that an employer shall keep his hands off the self-organization of employees – the entire structure of the act rests,” <a href="https://digitalcommons.law.seattleu.edu/cgi/viewcontent.cgi?article=1631&context=sulr">he wrote</a>.“ Any compromise or weakening of that principle strikes at the root of the law.” </p>
<p>Over the past half century, anti-union corporations and their consultants and law firms – assisted by <a href="https://www.reuters.com/article/us-usa-labor-nlrb/unions-brace-for-big-changes-under-republican-led-u-s-labor-board-idUSKBN1HI328">Republican-controlled NLRBs</a> and right-wing judges – have <a href="https://www.latimes.com/opinion/op-ed/la-oe-greenhouse-janus-supreme-court-20180627-story.html">undermined that process</a> of worker self-organization by enabling union elections to become employer-dominated.</p>
<p>But for the long-term decline in union membership to be reversed, I believe pro-union workers will need stronger protections. Labor law reform is essential if the <a href="https://www.doi.org/10.1177/0019793918806250">almost 50% of nonunion American workers</a> who say they want union representation are to have any chance of getting it. </p>
<h2>Dispelling fear, futility and apathy</h2>
<p>Lack of popular interest <a href="https://www.filesforprogress.org/memos/worker-power.pdf">has long been an obstacle</a> to labor law reform. </p>
<p>Meaningful labor law reform is unlikely to happen unless people are engaged with the issues, understand them and believe they have a stake in the outcome.</p>
<p>But <a href="https://theconversation.com/union-battles-at-amazon-and-starbucks-are-hot-news-which-can-only-be-good-for-the-labor-movement-172932">media interest in the campaigns at Starbucks and Amazon</a> suggests the American public may finally be paying attention.</p>
<p>It isn’t known where this latest labor movement – or moment – will lead. It could evaporate or it may just spark a wave of organizing across the low-wage service sector, stimulating a national debate over workers’ rights in the process. </p>
<p>The biggest weapons that anti-union corporations have in suppressing labor momentum are the fear of retaliation and a sense that unionization is futile. The recent successes show unionizing no longer seems so frightening or so futile. </p>
<p><em>This is an updated version of <a href="https://theconversation.com/amazon-starbucks-and-the-sparking-of-a-new-american-union-movement-180293">an article originally published</a> on April 4, 2022.</em></p><img src="https://counter.theconversation.com/content/189826/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John Logan does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Public support for unions is at a near 60-year high. Meanwhile, self-organizers at major American chains are spearheading a new movement to mobilize.John Logan, Professor and Director of Labor and Employment Studies, San Francisco State UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1674302021-09-08T02:30:03Z2021-09-08T02:30:03ZExplainer: what is a ‘positive duty’ to prevent workplace sexual harassment and why is it so important?<p>This week’s <a href="https://www.pm.gov.au/media/address-womens-safety-summit">national women’s safety summit</a> has been roundly criticised by community and women’s groups as being <a href="https://theconversation.com/national-summits-have-their-place-but-what-will-it-really-take-to-achieve-equality-for-australian-women-167184">little more than a talkfest</a>. </p>
<p>It was intended to inform the development of a national plan to prevent violence against women and their children. But the government’s recent steps on this issue show how it is more committed to rhetoric and spin than taking real action. </p>
<p>Last week, the parliament passed six amendments to the Sex Discrimination Act out of the 12 recommended in Sex Discrimination Commissioner Kate Jenkins’s <a href="https://www.abc.net.au/news/2021-09-07/kate-jenkins-respect-at-work-report/100438496">Respect@Work report</a>. The report contained a total of 55 recommendations, not all of which require legislative amendments to be implemented. </p>
<p>The government was <a href="https://womensagenda.com.au/latest/i-will-not-be-lectured-on-womens-safety-by-this-prime-minister/">heavily criticised</a> for not implementing all of the recommendations. One of the most important was Jenkins’s call to introduce a positive duty on employers to prevent sexual harassment. </p>
<p>Sam Mostyn, the president of Chief Executive Women, <a href="https://www.abc.net.au/radionational/programs/breakfast/female-ceo-australian-companies/13531794">said on ABC Radio National today</a>,</p>
<blockquote>
<p>Once you make it a duty, employers pay attention and know that there is a consequence for failing to provide that environment. […] The amendment is simple, it’s well-supported and it’s one of the clearest ways to say, ‘when women feel safe at work, they want to keep working’. </p>
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<h2>So, what is a positive duty?</h2>
<p>A positive duty requires organisations to be proactive in addressing the disadvantages and discrimination women experience at the workplace in order to promote equality. </p>
<p>The federal government has been hesitant to enact this, saying it <a href="https://www.ag.gov.au/sites/default/files/2021-04/roadmap-respect-preventing-addressing-sexual-harassment-australian-workplaces.pdf">believes</a> existing workplace health and safety laws already provide a positive duty to prevent sexual harassment.</p>
<p>According to the Respect@Work report, a positive duty does exist in workplace health and safety laws to </p>
<blockquote>
<p>eliminate or manage hazards and risks to a worker’s health, which includes psychological health and therefore sexual harassment. </p>
</blockquote>
<p>However, this duty does not go far enough and is not explicit enough in referring to sexual harassment.</p>
<p>Affirmative action legislation also does not go far enough to ensure gender equality. The <a href="https://dss.gov.au/our-responsibilities/women/programs-services/economic-security/the-workplace-gender-equality-act-2012">Workplace Gender Equality Act 2012</a> requires employers with more than 100 staff to implement measures to advance gender equality and report on progress. </p>
<p>But affirmative action only requires employers to undertake the minimum amount of effort on this front. Researchers <a href="https://theconversation.com/gender-equality-reporting-is-not-red-tape-22892">have noted</a> that fulfilling the reporting requirements is seen by many employers to be a bureaucratic and compliance exercise, which does not necessarily translate into action. </p>
<p>A positive duty, by contrast, imposes a higher obligation. It requires employers to <a href="https://research.monash.edu/en/publications/rethinking-the-australian-model-of-promoting-gender-equality">actively promote gender equality</a>, and can include going beyond the workplace to take action in the community. </p>
<p>This is why Jenkins recommended a new positive duty specifically focused on gender equality. It would build on our existing workplace health and safety laws by requiring agencies to do more than just meet benchmarks. </p>
<p>It would also complement the existing Sex Discrimination Act by taking a proactive and collective approach to ensure gender equality, rather than relying on individual remedies to prevent discrimination.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/the-governments-roadmap-for-dealing-with-sexual-harassment-falls-short-what-we-need-is-radical-change-158431">The government's 'roadmap' for dealing with sexual harassment falls short. What we need is radical change</a>
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<hr>
<h2>What does this look like in practice?</h2>
<p>One of the main ways a positive duty on gender equality can be implemented is through “<a href="https://eige.europa.eu/gender-mainstreaming/what-is-gender-mainstreaming">gender mainstreaming</a>”. </p>
<p>This means casting a gender lens over all organisational policies and practices to determine how they treat women. This might reveal, for example, that some human resource recruitment and selection processes are disadvantaging women. By being proactive, organisations can take steps to change these processes. </p>
<p>Arguably, a positive duty would extend to advancing gender equality in the workplace more broadly and creating the type of workplace environment that is incompatible with sexual harassment and discrimination. </p>
<p>This could include, for example, an assessment of workplace culture to identify barriers preventing the full participation of all genders in formal and informal workplace practices, and then taking actions to remove those barriers. </p>
<p>Jenkins’s report also recommends strengthening enforcement powers to assess employers’ compliance with this positive duty. </p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1433565052087386117"}"></div></p>
<h2>Are there good models to follow elsewhere?</h2>
<p>This is not a new phenomenon in Australia; in fact, a positive duty to prevent sex discrimination already exists in Victoria. </p>
<p>In 2020, the state government passed the <a href="https://www.genderequalitycommission.vic.gov.au/about-gender-equality-act-2020">Gender Equality Act</a>, which requires employers to take positive measures to progress gender equality. </p>
<p>The law has robust compliance mechanisms. Public sector agencies are required to develop, implement and report on their gender equality plans. Sanctions range from a light touch (being “named and shamed”) to a heavier hand (taking <a href="https://www.legislation.vic.gov.au/as-made/acts/gender-equality-act-2020">appropriate action</a> against non-compliant organisations).</p>
<p>Victoria’s act is based on laws from overseas. Positive duties on gender equality were initially <a href="https://www.equalityhumanrights.com/en/advice-and-guidance/public-sector-equality-duty">implemented in the UK public service</a> in 2011. These duties have had an impact beyond the public sector, as well, with ideas and strategies on equality now being incorporated by many employers in the private sector.</p>
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<p>However, some researchers <a href="https://academic.oup.com/ilj/article-abstract/47/3/365/4562828?redirectedFrom=fulltext">argue</a> the impact of the UK gender equality duty has been tempered due to weak enforcement measures and a focus on process rather than outcomes. </p>
<p>These researchers have recommended strengthening the UK positive duty by collecting better data on women’s workforce participation, improving workplace education and leadership on gender equality issues, and bringing in stronger enforcement mechanisms for non-compliant employers. </p>
<p>The positive duty put forward in the Respect@Work report would have incorporated these elements. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/can-the-government-get-its-workplace-harassment-laws-right-its-bill-is-a-missed-opportunity-163492">Can the government get its workplace harassment laws right? Its bill is a missed opportunity</a>
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<p>Jenkins sounded a warning back in April that not implementing a positive duty would be a “<a href="https://humanrights.gov.au/about/news/media-releases/commission-welcomes-response-respectwork-report">missed opportunity</a>”. This warning, however, went unheeded by the government with its reforms. </p>
<p>Prime Minister Scott Morrison <a href="https://www.pm.gov.au/media/address-womens-safety-summit">has said</a> </p>
<blockquote>
<p>the only way we end violence is to focus our efforts to prevent it from happening in the first place. </p>
</blockquote>
<p>Not reforming the law to introduce a positive duty signals a failure and lack of political will to prevent violence against women and advance gender equality.</p><img src="https://counter.theconversation.com/content/167430/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Sue Williamson does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The Morrison government says existing laws already provide a positive duty to prevent sexual harassment, but these don’t go far enough.Sue Williamson, Senior Lecturer, Human Resource Management, UNSW Canberra, UNSW SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1630482021-07-13T12:28:35Z2021-07-13T12:28:35Z63% of workers who file an EEOC discrimination complaint lose their jobs<figure><img src="https://images.theconversation.com/files/410411/original/file-20210708-23-lgodul.jpg?ixlib=rb-1.1.0&rect=123%2C86%2C3991%2C2554&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">EEOC complaints often result in retaliation. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/ResortDiscriminationSettlement/fe760f6dcfe4490781cd0e24949b9454/photo?Query=Equal%20Employment%20Opportunity%20Commission&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=92&currentItemNo=34">(AP Photo/David Zalubowski</a></span></figcaption></figure><figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=255&fit=crop&dpr=1 600w, https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=255&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=255&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=321&fit=crop&dpr=1 754w, https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=321&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/410168/original/file-20210707-27-1byguql.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=321&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="attribution"><a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
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<p>People who experience sex discrimination, race discrimination and other forms of discrimination at work aren’t getting much protection from the laws designed to shield them from it.</p>
<p><a href="https://www.umass.edu/employmentequity/who-files-discrimination-charges">That’s our main finding</a> after analyzing the outcomes of 683,419 discrimination cases filed with the U.S. Equal Employment Opportunity Commission from 2012 to 2016 – the most recent data available. We focused on workplace complaints filed related to race, sex, disability, age and national origin. Those are the five most common categories. </p>
<p>We found that at least 63% of workers who filed a complaint eventually lost their job. That number was even higher for workers who filed a disability-related claim, at 67%. And about 40% of workers reporting experiencing employer retaliation, such as verbal abuse or being passed over for work opportunities like training or promotion, for filing a claim. At 46%, employer retaliation was most common for sex discrimination cases.</p>
<p>Moreover, the complaints themselves rarely led to a successful outcome for the workers who filed them. Our analysis found that legal redress in the form of negotiated or mandated changes in workplace practices occurred in only 7% of all cases. Workers received monetary awards in 12% of the cases – with a median payout of only US$8,500. </p>
<p>These patterns may explain <a href="https://press.uchicago.edu/ucp/books/book/chicago/R/bo26176123.html">why only a fraction of people who believe that they have experienced discrimination</a> at work actually file a complaint. Legal standards to prove discrimination to the EEOC or in court are quite high, and the burden of proof falls largely on the employee. </p>
<p>Low rates of discrimination claim filing may also suggest that people see the legal route as dangerous with low chances of success. Enduring discrimination on the job and proving it in court or to the government are quite different things.</p>
<p><a href="https://www.cnbc.com/2021/04/16/what-the-paycheck-fairness-act-could-mean-for-women-and-the-pay-gap.html">Lawmakers have been debating</a> measures to beef up protections for workers for years, such as the <a href="https://www.congress.gov/bill/117th-congress/house-bill/7">Paycheck Fairness Act</a>, a bill aimed at wage discrimination, or paying workers doing the same job differently based on their sex, race or national origin. Besides increasing pay transparency, the bill would shift more of the burden of proof to the employer. </p>
<p>While we believe passage of this legislation would be a good step to encourage more workers to report discrimination, our research shows that increased protections should be applied to all types of discrimination. But giving workers the protection from discrimination that we feel they deserve likely will <a href="https://www.umass.edu/employmentequity/equal-employment-opportunity-bidenharris-transition-white-paper#overlay-context=diversity-reports">require stronger enforcement efforts and stiffer penalties</a> for employers who break the law. </p>
<p>[<em>Like what you’ve read? Want more?</em> <a href="https://theconversation.com/us/newsletters/the-daily-3?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=likethis">Sign up for The Conversation’s daily newsletter</a>.]</p><img src="https://counter.theconversation.com/content/163048/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Donald T. Tomaskovic-Devey receives funding from the W.K.Kellog Foundation. </span></em></p><p class="fine-print"><em><span>Carly McCann is affiliated with the Center for Employment Equity at UMass-Amherst. </span></em></p><p class="fine-print"><em><span>JD Swerzenski is affiliated with the Center for Employment Equity at UMass-Amherst.</span></em></p>Workers who filed complaints faced retaliation and rarely got a favorable result from the Equal Employment Opportunity Commission.Donald T. Tomaskovic-Devey, Professor of Sociology and Director of the Center for Employment Equity, UMass AmherstCarly McCann, Research Affiliate at the Center for Employment Equity, UMass AmherstJ.D. Swerzenski, Ph.D. Candidate in Communication, UMass AmherstLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1634922021-06-29T19:58:11Z2021-06-29T19:58:11ZCan the government get its workplace harassment laws right? Its bill is a missed opportunity<p>It’s been over a year since Sex Discrimination Commissioner Kate Jenkins’ report on sexual harassment in the workplace in Australia, <a href="https://humanrights.gov.au/our-work/sex-discrimination/publications/respectwork-sexual-harassment-national-inquiry-report-2020">Respect@Work</a>, was released.</p>
<p>After a long delay, the Morrison government published its <a href="https://www.ag.gov.au/rights-and-protections/publications/roadmap-for-respect">response</a> to the report in April, and followed up by quietly <a href="https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/Bills_Search_Results/Result?bId=s1306">introducing a bill</a> to legislate some of these changes last week. </p>
<p>The bill proposes changes primarily to the Sex Discrimination Act and the Fair Work Act. While some of these changes are welcome and long overdue, the bill doesn’t go nearly far enough to protect women or prevent harassment at work.</p>
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Read more:
<a href="https://theconversation.com/the-governments-roadmap-for-dealing-with-sexual-harassment-falls-short-what-we-need-is-radical-change-158431">The government's 'roadmap' for dealing with sexual harassment falls short. What we need is radical change</a>
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<h2>Major changes to the Sex Discrimination Act</h2>
<p>There are three major proposed changes to the Sex Discrimination Act that focus on sexual harassment. </p>
<p>First, protection would be expanded to cover harassment based on a person’s sex, such as comments or actions that “seriously demean” women, in addition to sexual harassment. </p>
<p>Second, the time limit to make a claim under the act would be extended from six months to two years. </p>
<p>Third, more workers would be protected from sexual harassment beyond just direct employees and contractors. Subcontractors, labour hire workers, outworkers, trainees, unpaid work experience students and volunteers would also be included. </p>
<p>The sexual harassment and sex-based harassment provisions would also be extended to cover members of parliament, as well as their staff and judges at both state and federal levels for the first time. These groups are not currently subject to the Sex Discrimination Act. </p>
<p>State public servants would be covered under the act (joining federal public servants). Previously, they would have only been subject to state anti-discrimination laws.</p>
<h2>Threshold for demeaning language too high</h2>
<p>There is much to commend in these proposed amendments, but other changes are expressed in a way that is likely to limit their scope or effect. </p>
<p>The extension of protections to cover sex-based harassment, such as misogynist language that demeans or degrades women, is a very important step forward. But it has not been included in the Fair Work Act changes (discussed below). Moreover, it would require a higher standard than the sexual harassment provisions to prove. </p>
<p>To succeed in a case involving sex-based harassment, for instance, it would be necessary to prove not only that the behaviour is offensive, humiliating or intimidating, but also that the conduct is <em>seriously demeaning</em>. </p>
<p>This unfortunately suggests sex-based harassment that is not seriously demeaning is acceptable. </p>
<p>Discrimination and harassment often happen through frequently repeated, small or nuanced transgressions, rather than singular, dramatic actions. A threshold of “seriously demeaning” is too high.</p>
<h2>More workplace protections — but only to a point</h2>
<p>The proposed changes to the Fair Work Act make clear that sexual harassment is a workplace health and safety issue, like bullying. This means sexual harassment will be treated as a form of bullying, which can be addressed through a stop order made by the Fair Work Commission. </p>
<p>In addition, the Fair Work Act would be amended to make clear sexual harassment falls within the definition of serious misconduct and can be a legitimate reason for dismissal from employment. </p>
<p>Importantly, the government rejected Jenkins’s recommendation to include language that expressly prohibits sexual harassment in the Fair Work Act. </p>
<p>This means a person who is subjected to sexual harassment will not be able to seek compensation under the Fair Work Act; that person would still need to bring an claim under anti-discrimination laws at the state or federal level. </p>
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<p>Another problem is the changes to the Fair Work Act would not include the new provision for sex-based harassment. The bill does not see sex-based harassment as a workplace health and safety issue, or as serious misconduct.</p>
<p>Both of these omissions demonstrate an ongoing reluctance to fully integrate anti-discrimination principles into workplace law. </p>
<p>Jenkins’s report recommended that employers should be required to take reasonable and proportionate measures to eliminate both sexual harassment and sex-based discrimination at work, but the government has resisted this, claiming work health and safety laws are sufficient. </p>
<p>With such a requirement under the law, employers could be held liable — including for compensation — if they do not make sufficient efforts to prevent harassment or discrimination in their workplace.</p>
<p>Legal claims under anti-discrimination laws can be riskier than those under the Fair Work Act because different rules apply about paying the other side’s legal costs if you lose the case. As a result, those who are harassed at work are still being denied access to the most effective procedures to bring their claims.</p>
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Read more:
<a href="https://theconversation.com/in-the-wake-of-the-dyson-heydon-allegations-heres-how-the-legal-profession-can-reform-sexual-harassment-142560">In the wake of the Dyson Heydon allegations, here's how the legal profession can reform sexual harassment</a>
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<p>Another problem is the Fair Work Act would only protect against sexual harassment while a person is “at work”. </p>
<p>This overlooks the use of social media outside working hours, which is now a major avenue for bullying and harassment. It also might not cover work-related harassment that occurs off-site or out of hours. </p>
<p>The government has introduced some significant changes in the bill, which are to be commended. But in some respects, this is a missed opportunity to fully embrace Jenkins’s report and implement comprehensive change. </p>
<p>The narrow drafting of this bill and, in particular, the failure to fully protect against sex-based harassment should be addressed before it is adopted.</p><img src="https://counter.theconversation.com/content/163492/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Beth Gaze receives research funding from the Gender Equality Commission (Victoria). </span></em></p>The bill put forth last week would bring welcome reforms to the Sex Discrimination Act and Fair Work Act. But it doesn’t go nearly far enough to protect women or prevent harassment at work.Beth Gaze, Professor of Law, The University of MelbourneLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1622412021-06-27T19:49:34Z2021-06-27T19:49:34ZAirline policies mandating vaccines will be a turbulent test of workplace rights<p>Airlines want you vaccinated. They want as many people as possible vaccinated. The sooner that happens, the sooner borders open and they can get back to profitability. </p>
<p>They also have reasons to want to protect both customers and staff from COVID-19. Qantas staff, for example, have been <a href="https://www.theguardian.com/business/2020/apr/13/qantas-staff-consider-class-action-alleging-airline-failed-to-protect-them-against-covid-19">considering legal action</a> over workplace transmissions. </p>
<p>Qantas <a href="https://www.news.com.au/entertainment/tv/morning-shows/sunrise-host-david-koch-fires-up-over-covid-vaccine-during-interview-with-qantas-boss-alan-joyce/news-story/27521c7382807835e96ed271f6d3b1e3">has dangled the carrot</a> of extra frequent flyer points for fully vaccinated passengers, plus ten “mega prizes” of a year’s free travel for familes. Virgin Australia has similar plans. It also has a scheme to encourage its workers to get vaccinated. This will reportedly include the chance to win extra annual leave.</p>
<p>Could they go further and mandate vaccines? This is something Cathay Pacific is doing, telling its Hong Kong-based flight crews they must be vaccinated by August or their <a href="https://www.scmp.com/news/hong-kong/health-environment/article/3138552/coronavirus-cathay-pacific-makes-vaccinations">employment will be reviewed</a>. </p>
<p>Qantas chief Alan Joyce signalled in November that once vaccines are widely available it will require international travellers to be vaccinated. This implicitly suggests it will require the same from international flight staff.</p>
<p>But the legal ground in Australia for employers to insist that employees be vaccinated remains murky. </p>
<p>Whether Qantas or Virgin – or indeed any other company – do so may depend on the case of Queensland regional carrier <a href="https://www.allianceairlines.com.au/">Alliance Airlines</a>, the first employer in Australia to insist all employees be immunised. </p>
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Read more:
<a href="https://theconversation.com/the-airline-industry-hasnt-collapsed-but-thats-the-only-good-news-for-overseas-travel-158867">The airline industry hasn't collapsed, but that's the only good news for overseas travel</a>
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<h2>A question of common law</h2>
<p>Alliance Airlines specialises in flights to and from mining sites. It is <a href="https://www.accc.gov.au/media-release/investigation-into-qantas%E2%80%99s-stake-in-alliance-airlines-continues">19.9% owned by Qantas</a>, and collaborates with both Qantas and <a href="https://www.accc.gov.au/public-registers/authorisations-and-notifications-registers/authorisations-register/virgin-australia-alliance-airlines">Virgin Australia</a>. </p>
<p>It announced its mandatory policy for both influenza and COVID-19 vaccinations <a href="https://www.theaustralian.com.au/business/aviation/airline-orders-staff-to-get-vaccinated-or-face-action/news-story/42b5f71907125e63f8511c6b93083eb3">in late May</a>. Its <a href="https://simpleflying.com/alliance-vaccination-requirement/">stated reason</a> is to fulfil its duty to employees and passengers. But unions have questioned the policy’s lawfulness, arguing it is beyond the airline’s powers. </p>
<p>In Australia, there has been no general government guidance on whether employers can insist on employees getting COVID-19 vaccinations. </p>
<p>This differs to the United States, where the federal Equal Employment Opportunity Commission ruled in December 2020 that employers could (with some exemptions for medical and religious reasons) require employees to be vaccinated.</p>
<p>The Queensland and Western Australian governments have issued public health directions requiring workers be vaccinated, but only in certain health and quarantine workplaces. </p>
<p>Whether Alliance Airlines’ policy is lawful therefore depends on a general common law “test” for determining the validity of workplace policies. </p>
<p>This test asks if a policy or direction is “lawful and reasonable” given the circumstances. These include: </p>
<ul>
<li><p>the nature of the job, especially where it requires regular interactions with colleagues, clients and suppliers</p></li>
<li><p>if the work can be done remotely, or other reasonably practical precautions exist </p></li>
<li><p>the effectiveness or success rates of the vaccine</p></li>
<li><p>any guidance or directives from government and medical experts</p></li>
<li><p>the circumstances of individuals employee, such as whether they have reasonable grounds to refuse vaccination.</p></li>
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<h2>Unfair dismissal cases</h2>
<p>Australia’s Fair Work Commission has demonstrated the balancing act needed to apply these factors in its most recent ruling in an unfair dismissal case involving a refusal to get an influenza vaccination.</p>
<p>The <a href="https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2021fwc2989.pdf">claim</a> was brought by Maria Corazon Glover, a 64-year-old community care assistant, against Queensland aged and disability care provider <a href="https://www.ozcare.org.au/">Ozcare</a>, her employer since 2009. </p>
<p>In May 2020, public health orders in Queensland required influenza vaccinations for entry into aged care facilities. Ozcare went “above and beyond” those requirements, mandating the flu vaccine for all its aged care workers, even those who did not work in facilities. Glover, a home-care provider, refused. She said she believed she would suffer an allergic reaction, based on what she understood had happened to her as a child. She was ultimately dismissed.</p>
<p>Commissioner Jennifer Hunt upheld her dismissal despite Ozcare’s policy exceeding the relevant public health orders and Glover’s concerns. Hunt ruled those factors were outweighed by the vulnerability of Ozcare’s clients, the frequency with which care workers visited clients’ homes (and their potential to become “super-spreaders”), and the employer’s “prerogative” to make a decision considered necessary to safeguard its clients and employees “so far is practicable to do so”.</p>
<h2>Individual circumstances do count</h2>
<p>Perhaps the most important takeaway from <a href="https://www.fwc.gov.au/documents/decisionssigned/html/pdf/2021fwc2989.pdf">Glover v Ozcare</a> is that it was decided on its particular facts. Employers must carefully assess employees’ situations to decide if a mandatory vaccination policy is justifiable. </p>
<p>An airline might reason that cabin crew interact with people in environments with a higher risk of COVID-19 transmission and where social distancing is impossible. </p>
<p>But an employee might counter that, unlike aged or disability care workers, they have much less close contact with high-risk, vulnerable individuals. </p>
<p>The case-by-case nature of the reasonableness test means any generalised “all in” vaccination policy is problematic. Even more so if there is employee resistance. </p>
<h2>Discrimination may be valid</h2>
<p>Employees who are dismissed for refusing to vaccinate might also argue it amounts to discrimination on prohibited grounds such as disability or pregnancy, where COVID-19 vaccination may be unsafe or pose medical risks.</p>
<p>Under the Fair Work Act, however, employers have a valid defence for discriminatory action if a policy or decision is based on the “inherent requirements” of the job.</p>
<p>In November 2020, Fair Work Deputy president Ingrid Asbury noted that vaccination against influenza was likely to be an inherent requirement for a position involving caring for young children, and so could be justified for child-care employees. </p>
<p>However, outside high-risk contexts such as child and health care, this defence may be limited and will turn on the employee’s role and the organisational context. </p>
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Read more:
<a href="https://theconversation.com/can-my-boss-make-me-get-a-covid-vaccination-yes-but-it-depends-on-the-job-154054">Can my boss make me get a COVID vaccination? Yes, but it depends on the job</a>
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<h2>Looking for safe ground</h2>
<p>The Fair Work Commission’s rulings on influenza vaccines give a fair indication of the principles it will apply to any case involving COVID-19 vaccines.</p>
<p>But given the different circumstances, whether it will give a green light to a general policy like that of Alliance Airlines remains up in the air.</p>
<p>Qantas and Virgin might be on safer ground because of their international operations, if proof of vaccination becomes mandatory for other destinations.
However, I think the issue of employee vaccinations for the airline industry will ultimately be resolved via government intervention. </p>
<p>In other sectors, owing to the complexities in determining whether mandatory policies are “legal”, many employers will likely stick with the safer route of voluntary “incentive schemes” to encourage vaccinations.</p><img src="https://counter.theconversation.com/content/162241/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Giuseppe Carabetta does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The legal ground in Australia for employers to insist that employees be vaccinated is murky.Giuseppe Carabetta, Senior Lecturer, Sydney University Business School, University of SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1525722021-02-26T13:24:41Z2021-02-26T13:24:41ZMeatpacking plants have been deadly COVID-19 hot spots – but policies that encourage workers to show up sick are legal<figure><img src="https://images.theconversation.com/files/385950/original/file-20210223-18-w2re0x.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5400%2C3661&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Nearly 1,000 workers at this Smithfield Foods pork-processing plant in South Dakota contracted COVID-19 between mid-March and mid-April 2020. </span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/sign-for-the-smithfield-foods-pork-processing-plant-in-news-photo/1210647867?adppopup=true">Kerem Yucel / AFP via Getty Images</a></span></figcaption></figure><p>Working in meatpacking plants has <a href="https://www.osha.gov/meatpacking">always been dangerous</a>. A recent study shows that it became deadlier in the era of COVID-19, even as company profits soared. </p>
<p>This analysis, published in December 2020, estimates that <a href="https://doi.org/10.1073/pnas.2010115117">6%-8% of all COVID-19 cases and 3%-4% of all COVID-19 deaths in the U.S.</a> through July 21, 2020 were tied to meat and poultry plants. Workers in these facilities stand close together on processing lines, which makes social distancing difficult.</p>
<p>At the same time, companies like <a href="https://www.tysonfoods.com/news/news-releases/2020/11/tyson-foods-reports-strong-fourth-quarter-and-fiscal-2020-results">Tyson</a>, which produces chicken, beef and pork, and <a href="https://www.thepigsite.com/news/2020/11/jbs-posts-higher-than-expected-quarterly-profit-defying-estimates">JBS</a>, which produces beef and pork, are reporting high earnings despite COVID-related challenges such as plant closures. </p>
<p>I am a <a href="https://scholar.google.com/citations?user=C97MdtkAAAAJ&hl=en">law professor</a> and have written about links between lax state and federal <a href="https://worklawcovid19book.netlify.app/meatpacking.html">enforcement of health and safety laws</a> and <a href="https://doi.org/10.1073/pnas.2010115117">increased</a> rates of <a href="https://static1.squarespace.com/static/5956e16e6b8f5b8c45f1c216/t/5f445e5ca7b21825e9add2b3/1598316124697/Chp26_COVIDPolicyPlaybook-Aug2020.pdf">COVID-19</a> infections and deaths. Thanks to punitive attendance rules and Trump administration policies, meat- and poultry-processing workers have been unnecessarily exposed to COVID-19. In my view, the best way to protect them is to reform laws that prioritize production over workers’ health.</p>
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<figcaption><span class="caption">Meat and poultry workers began calling for better protection early in the COVID-19 pandemic.</span></figcaption>
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<h2>Sick on the job</h2>
<p>Meat- and poultry-processing companies’ standard attendance policies were <a href="https://investigatemidwest.org/2020/10/20/meatpacking-workers-say-attendance-policy-forces-them-to-work-with-potential-covid-19-symptoms/">punitive even before the pandemic</a>. Companies issued points for employees who missed work and fired those who accumulated too many points. These policies are still in place.</p>
<p>Workers at Tyson and JBS plants are required to go to work even if they are experiencing symptoms of COVID-19 or <a href="https://investigatemidwest.org/2020/10/20/meatpacking-workers-say-attendance-policy-forces-them-to-work-with-potential-covid-19-symptoms/">awaiting test results</a>. The companies excuse absences for COVID-19 only if a worker has tested positive for the virus, or in Tyson’s case, has “<a href="https://www.nwaonline.com/news/2020/jun/04/pre-virus-attendance-policy-back-at-tys/">documented clinical symptoms</a>.” Tyson and JBS workers have told reporters that costs and wait times make it hard for them to access testing, so they <a href="https://www.wisfarmer.com/story/news/2020/11/03/attendance-policy-forces-sick-employees-work-meatpacking-plants/6147299002/">go to work sick</a>.</p>
<p>That said, both companies have taken steps to control the spread of COVID-19 at their plants. Tyson <a href="https://www.tysonfoods.com/news/news-releases/2020/12/tyson-foods-goes-offense-against-new-waves-covid-19-safety-measures">hired medical professionals</a>, cleans its plants daily and monitors social distancing. <a href="https://www.npr.org/sections/coronavirus-live-updates/2021/02/01/962877199/meatpacking-companies-osha-face-investigation-over-coronavirus-in-plants">JBS</a> now offers unlimited personal protective equipment and tests symptomatic workers and close contacts. However, even with safety protocols, the virus can spread in the workplace if infected employees come to work. </p>
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<h2>Meat and poultry plants as ‘critical infrastructure’</h2>
<p>As COVID-19 spread in the spring of 2020, then-President Donald Trump signed an <a href="https://www.govinfo.gov/content/pkg/FR-2020-05-01/pdf/2020-09536.pdf">executive order</a> that included language <a href="https://perma.cc/8TAP-ZSRA">provided by meat trade associations</a> designating meat and poultry plants as critical infrastructure under the Defense Production Act. The order directed the U.S. Department of Agriculture to ensure that meat and poultry processing facilities stayed open or that they reopened as soon as possible during the pandemic to prevent meat shortages. </p>
<p>In May 2020, COVID-19 infections among meat- and poultry-processing workers more than tripled, and <a href="https://www.cdc.gov/mmwr/volumes/69/wr/pdfs/mm6927-H.pdf">the number of deaths quadrupled</a>. Still, <a href="https://worklawcovid19book.netlify.app/meatpacking.html">with the USDA’s help</a>, companies invoked the executive order to maintain operations. For example, in Cold Spring, Minnesota, a Pilgrim’s Pride plant that processes chicken stayed open because of Trump’s order even though worker infections spiked from <a href="https://www.nbcnews.com/news/us-news/coronavirus-hot-spot-minnesota-connected-surge-cases-meatpacking-plant-n1206176">83 on May 8 to 194 on May 11</a>.</p>
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<h2>Profits and lawsuits</h2>
<p>On Nov. 17, 2020, Tyson announced net income of <a href="https://www.newsbreak.com/news/2103353545279/tyson-foods-shares-rise-after-earnings-beat-2021-dividend-announced">US$692 million</a> for the fourth quarter of 2020, up from $369 million for the same period in 2019. <a href="https://www.thestreet.com/investing/tyson-foods-tops-q4-earnings-forecast-sees-2021-sales-gains">Tyson stock</a> traded at $1.81 per share, up 49.5% from the same period in 2019. This was a result of increased production. To date, over <a href="https://thefern.org/2020/04/mapping-covid-19-in-meat-and-food-processing-plants">12,500 Tyson workers</a> have been infected with COVID-19. </p>
<p>Tyson currently <a href="https://htv-prod-media.s3.amazonaws.com/files/amended-complaint-tyson-1605748137.pdf">faces a lawsuit</a> for a COVID-19 outbreak at a plant in Waterloo, Iowa that has <a href="https://iowacapitaldispatch.com/2020/11/18/lawsuit-tyson-managers-bet-money-on-how-many-workers-would-contract-covid-19/">sickened at least 1,000 workers</a> and killed five. The <a href="https://iowacapitaldispatch.com/2020/11/18/lawsuit-tyson-managers-bet-money-on-how-many-workers-would-contract-covid-19/">wrongful death lawsuit</a> filed by the <a href="https://www.desmoinesregister.com/story/money/business/2020/10/06/tyson-foods-sued-over-columbus-junction-workers-covid-19-death-iowa/3636300001/">families of three deceased employees</a> charges that the company required workers – including some who were transferred from facilities with COVID-19 outbreaks – to work long hours in cramped conditions. </p>
<p>For its part, JBS reported <a href="https://finance.yahoo.com/news/brazils-jbs-turns-581-2-015514838.html">$581.2 million</a> in net profits in the third quarter of 2020, beating analysts’ forecasts. On Sept. 12, 2020, the U.S. Occupational Safety and Health Administration fined the company $15,615 due to <a href="https://apnews.com/article/virus-outbreak-greeley-colorado-denver-f46d59db7b8d45898e975510cdd0ae0a">six deaths</a> and 290 COVID-19 infections in its Greeley, Colorado plant. </p>
<p>Commenting on the fine, two former federal regulators noted that the Trump administration could have <a href="https://tcf.org/content/report/halting-workplace-covid-19-transmission-urgent-proposal-protect-american-workers/">punished JBS much more severely</a> if it had penalized the company for violations at multiple plants and designated them as willful violations. In <a href="https://www.cpr.org/2020/11/25/meatpacking-giant-jbs-battles-new-coronavirus-outbreaks-at-greeley-plant-and-corporate-offices/">November 2020</a>, 32 new infections were confirmed at the Greeley plant. </p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="Marty Walsh testifies at his Senate confirmation hearing." src="https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/386250/original/file-20210224-13-7nhby7.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
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<span class="caption">If confirmed as U.S. secretary of labor, Boston Mayor Marty Walsh would be the first union member to hold the post in nearly 50 years.</span>
<span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/BidenCabinetLabor/d9cd23a0d72243a88a0bdd4b57f3e92f/photo">Graeme Jennings/Pool via AP</a></span>
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<h2>Legal reforms</h2>
<p>Critics argue that the Occupational Safety and Health Administration <a href="https://tcf.org/content/report/halting-workplace-covid-19-transmission-urgent-proposal-protect-american-workers/">has not adequately enforced</a> workplace health and safety laws during the pandemic. Trump’s executive order <a href="https://worklawcovid19book.netlify.app/meatpacking.html">limited OSHA’s authority to enforce the laws</a> and authorized the Department of Agriculture to keep meat and poultry plants open despite outbreaks. Even with stronger enforcement, however, punitive attendance policies still could increase infection rates by requiring workers to go to work sick.</p>
<p>President Joe Biden issued an <a href="https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/21/executive-order-protecting-worker-health-and-safety/">executive order</a> on Jan. 21, 2021, directing the Department of Labor to issue stronger guidance on workplace safety during the pandemic. But employers do not have to comply with this guidance, and it does not address punitive attendance policies. </p>
<p>I believe three reforms are needed to fill the gap. First, federal and state agencies could use their legal authority to prohibit punitive attendance policies. Section 5 of the Occupational Safety and Health Act of 1970 includes a “<a href="https://www.osha.gov/laws-regs/oshact/section5-duties">general duty standard</a>” that requires employers to provide employees with a place of employment free from recognized hazards that are causing or likely to cause death or serious harm. </p>
<p>Although this would be a new use of the “general duty” standard, it would address a recognized hazard that is likely to cause death or serious harm. This is a mandatory requirement that employers already have to comply with and does not require an in-person inspection to enforce.</p>
<p>Second, Biden could withdraw Trump’s executive order classifying meat and poultry plants as critical infrastructure. And the Biden administration could require plants to close down if new outbreaks occur among their workers. </p>
<p>Finally, meat and poultry companies could be required to provide workers with <a href="https://academic.oup.com/jlb/article/7/1/lsaa036/5849058">hazard pay</a>, which should increase if the companies’ net profits rise. As a precedent, <a href="https://www.seattletimes.com/seattle-news/seattles-sudden-hazard-pay-move-shows-how-absent-government-has-been-for-workers-all-along/">Seattle</a>, <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/hazard-pay-for-grocery-workers-is-trending-in-california.aspx">Long Beach, California</a> and Oakland, California all recently adopted hazard pay mandates for grocery workers during the pandemic.</p>
<p>Grocery store chains are challenging the laws, arguing that their profit margins cannot support these payments. But it would be hard for meat and poultry companies to make that argument in light of their recent earnings.</p>
<p>Meatpacking plants emerged as <a href="https://www.cdc.gov/mmwr/volumes/69/wr/mm6927e2.htm">hot spots of infection</a> early in the COVID-19 pandemic. As of Feb. 24, 2021, more than 57,454 meat- and poultry-processing workers had <a href="https://thefern.org/2020/04/mapping-covid-19-in-meat-and-food-processing-plants/">tested positive for COVID-19</a> and 284 had died. In my view, it is time for legal action to protect meat and poultry workers and compensate them fairly for working in hazardous conditions during this pandemic.</p>
<p><em>This article has been updated to note that the estimates cited for COVID-19 illnesses and deaths at meat and poultry plants as a fraction of all U.S. COVID-19 illnesses and deaths covered the period up through July 21, 2020.</em></p><img src="https://counter.theconversation.com/content/152572/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ruqaiijah Yearby does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Thousands of workers at meat- and poultry-processing plants have contracted COVID-19, and hundreds have died. A legal scholar recommends ways to make their jobs safer.Ruqaiijah Yearby, Professor of Law, Saint Louis UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1540542021-02-03T13:12:32Z2021-02-03T13:12:32ZCan my boss make me get a COVID vaccination? Yes, but it depends on the job<p>As Australia prepares to roll out a national vaccination program – aiming for a 95% uptake rate – big questions remain for employers and employees. </p>
<p>Employers have a clear incentive to want employees vaccinated, to protect clients and co-workers as well as to avoid legal liabilities of potential workplace COVID transmissions.</p>
<p>But can an employer insist on vaccination as a condition of employment?</p>
<p>That’s an ambiguous legal question, as indicated by two recent unfair dismissal cases taken to the federal Fair Work Commission. Both involve employers in 2020 making an influenza vaccination a requirement, and employees losing their jobs for refusing. </p>
<p>The bottom line from both cases is that an employer can make vaccination a condition of working – but with significant caveats. It depends on “balancing” the employer’s duty of care to others with the employee’s reason for refusal, and the circumstances of the work they do.</p>
<h2>Employers have a duty of care</h2>
<p>The first relevant case is the Fair Work Commission’s <a href="https://www.fwc.gov.au/documents/decisionssigned/html/2020fwc6083.htm">ruling in November 2020</a> on an unfair dismissal claim by child-care worker Nicole Arnold against Goodstart Early Learning, Australia’s largest early learning provider.</p>
<p>In April 2020 Goodstart made a flu vaccination a condition of employment, though allowing exceptions on medical grounds. Arnold objected. In <a href="https://www.swaab.com.au/publication/compulsory-vaccinations-for-employees-the-legal-position">correspondence with her employer</a> she cited the Bible, the Nuremberg Principles and the Universal Declaration of Human Rights. But she gave no medical reasons. She was dismissed in August 2020. </p>
<p>The commission dismissed Arnold’s application to have her case heard on the basis Goodstart’s vaccination policy was arguably reasonable to satisfy its duty of care to children, while Arnold’s refusal was arguably unreasonable. </p>
<p>Commissioner Ingrid Asbury ruled:</p>
<blockquote>
<p>While I do not go so far as to say that [Arnold’s] case lacks merit, it is my view that it is at least equally arguable that [Goodstart’s] policy requiring mandatory vaccination is lawful and reasonable in the context of its operations which principally involve the care of children, including children who are too young to be vaccinated or unable to be vaccinated for a valid health reason.</p>
</blockquote>
<p>It was, Asbury said, a matter of balancing an employer’s duty of care with the needs of employees who may have reasonable grounds to refuse to be vaccinated. She saw no exceptional circumstances to rule Arnold was unfairly dismissed.</p>
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Read more:
<a href="https://theconversation.com/how-do-we-counter-covid-misinformation-challenge-it-directly-with-the-facts-153531">How do we counter COVID misinformation? Challenge it directly with the facts</a>
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<h2>Work circumstances count</h2>
<p>The second case involves an unfair dismissal claim by care assistant Maria Glover against Queensland aged and disability care provider Ozcare, for whom she had worked since 2009. </p>
<p>Ozcare provides free flu vaccinations to employees annually. Glover, 64, had previously declined to get the shot due to allergies and her understanding she had an adverse reaction to a flu shot as a child. </p>
<p>In April 2020, Ozcare introduced a policy making influenza vaccinations mandatory for all employees in its residential aged care facilities or having direct client contact in its community care services. Its reason was the risk to clients who caught the flu and then contracted COVID-19. </p>
<p>It required supporting evidence for a medical exemption. Glover did not do so. This resulted in Ozcare no longer rostering her for work from May. She filed her unfair dismissal claim in October.</p>
<figure class="align-center ">
<img alt="Aged care worker with elderly man." src="https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/382162/original/file-20210203-21-clto0o.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
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<span class="caption">Ozcare made influenza vaccinations for workers mandatory due to the risk for clients getting the flu and then COVID-19.</span>
<span class="attribution"><span class="source">Shutterstock</span></span>
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<p>A final ruling by the Fair Work Commission is still pending. The case was complicated by Ozcare’s lawyers arguing Glover had not been dismissed. But a <a href="https://www.fwc.gov.au/documents/decisionssigned/html/2021fwc231.htm">preliminary decision</a> on January 18 – in which Commissioner Jennifer Hunt ruled Glover had been dismissed – included observations relevant to the merits of future cases involving vaccination refusals.</p>
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Read more:
<a href="https://theconversation.com/oxford-scientists-how-we-developed-our-covid-19-vaccine-in-record-time-153135">Oxford scientists: how we developed our COVID-19 vaccine in record time</a>
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<p>Hunt considered a future scenario (in November 2021) when employers of men playing Santa Claus in shopping centres may be required to have a flu vaccination “and if a vaccination for COVID-19 is available, that too”. In such a situation, where social distancing is impossible, a vaccination might become an “inherent requirement” of the job. In the court of public opinion, Hunt said, this might not be considered unreasonable. But a court or tribunal would need to consider the context. </p>
<p>In particular, Commissioner Hunt noted:</p>
<blockquote>
<p>In my view, each circumstance of the person’s role is important to consider, and the workplace in which they work in determining whether an employer’s decision to make a vaccination an inherent requirement of the role is a lawful and reasonable direction. Refusal of such may result in termination of employment, regardless of the employee’s reason, whether medical, or based on religious grounds, or simply the person being a conscientious objector. </p>
</blockquote>
<h2>What this all means</h2>
<p>What these two rulings boil down to is that an employer can make a vaccination an inherent requirement of employment, and dismiss a worker for refusing – even if they have a legitimate reason. But it depends on the role and exposure risks. </p>
<p>If risks to others can be minimised through social distancing and other measures – say, for instance an employee works from home – dismissing an employee for refusing to get vaccinated could be ruled unfair. Particularly if they have a good reason – that is a medical condition, not a pseudo-legal objection. It depends on the balance of the employer’s duty of care to others against the employee’s claims.</p>
<p>So it’s not clear-cut. As things stands it is risky for employers to adopt a blanket policy to make COVID-19 vaccinations compulsory. </p>
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<h2>Bringing greater clarity</h2>
<p>Employer groups would like a more straightforward legal landscape. As the head of the Council of Small Business Organisations Australia, Peter Strong, <a href="https://www.theaustralian.com.au/commentary/vaccines-and-staff-a-legal-mess-in-the-workplace/news-story/2c656a38044927ecd057de13b1c26d4d">has noted</a>:</p>
<blockquote>
<p>There is the issue of vaccinated employees refusing to work with non-vaccinated employees. Where does the employer stand, legally and practicably, in that situation? Where does the employee stand? </p>
</blockquote>
<p>In the US the Equal Employment Opportunity Commission (which enforces federal laws against workplace discrimination) has ruled employers can <a href="https://theconversation.com/can-employers-require-workers-to-take-the-covid-19-vaccine-6-questions-answered-152434">require all employees</a> – with some religious or disability-related exemptions – to get vaccinated to enter a workplace. </p>
<p>Australia’s federal industrial relations minister Christian Porter <a href="https://www.afr.com/politics/federal/employers-unions-want-consistent-vaccine-rules-in-workplaces-20210201-p56ydc">has reportedly told employers</a> the government will not mandate vaccines in workplaces. </p>
<p>That means making the legality of workplace vaccination policies more “black-and-white” will need to come from the state and territory governments, using their regulatory powers under their work health and safety acts.</p><img src="https://counter.theconversation.com/content/154054/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>The authors do not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and have disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Whether an employer can insist on vaccination as a condition of employment is an ambiguous legal question, as shown by two recent unfair dismissal cases.Cecilia Anthony Das, Lecturer, Edith Cowan UniversityKenneth Yin, Lecturer in law, Edith Cowan UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1524342020-12-22T20:51:51Z2020-12-22T20:51:51ZCan employers require workers to take the COVID-19 vaccine? 6 questions answered<figure><img src="https://images.theconversation.com/files/376437/original/file-20201222-19-nwqzra.jpg?ixlib=rb-1.1.0&rect=99%2C130%2C3395%2C2200&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A patient care director in New York receives the coronavirus vaccine. </span> <span class="attribution"><a class="source" href="https://newsroom.ap.org/detail/VirusOutbreakModernaVaccine/d0133089b2b3408f86b6cdd2370b53d6/photo?Query=vaccine&mediaType=photo&sortBy=arrivaldatetime:desc&dateRange=Anytime&totalCount=5869&currentItemNo=49">Eduardo Munoz/Pool via AP</a></span></figcaption></figure><p><em>The Equal Employment Opportunity Commission, the <a href="https://www.eeoc.gov/overview">federal agency</a> in charge of enforcing laws prohibiting discrimination in the workplace, on Dec. 16 said that <a href="https://www.cbsnews.com/news/eeoc-covid-19-vaccine-employers-exclude-unvaccinated-workers/">employers can require employees</a> to get vaccinated before entering the workplace. Now that <a href="https://theconversation.com/why-should-i-trust-the-coronavirus-vaccine-when-it-was-developed-so-fast-a-doctor-answers-that-and-other-reader-questions-152429">two COVID-19 vaccines</a> have received emergency use authorization in the U.S., some people are concerned they could be fired if they don’t want to take the vaccine. We asked legal scholar <a href="https://www.slu.edu/law/faculty/ana-santos-rutschman.php">Ana Santos Rutschman</a>, who teaches a course on vaccine law at Saint Louis University, to explain the decision and the rights employees and employers have.</em></p>
<h2>1. Can employers require employees to get a vaccine?</h2>
<p>The general rule is yes – with some exceptions. </p>
<p>Under U.S. law, private employers have the ability to define general working conditions, including the adoption of <a href="https://www.osha.gov/as/opa/worker/employer-responsibility.html">health and safety</a> within the workspace. Requiring employees to get vaccinated against diseases that could compromise health and safety in the workplace is viewed as part of that ability.</p>
<h2>2. Does the rule apply to COVID-19 vaccines?</h2>
<p>Earlier in the pandemic, there were <a href="https://blog.petrieflom.law.harvard.edu/category/contributors/dorit-reiss/">some doubts</a> about whether the general rule would apply to COVID-19 vaccines because the first vaccines that became available in the U.S. have <a href="https://www.fda.gov/vaccines-blood-biologics/vaccines/emergency-use-authorization-vaccines-explained">not been fully approved</a> by the Food and Drug Administration. They have received an <a href="https://theconversation.com/what-are-emergency-use-authorizations-and-do-they-guarantee-that-a-vaccine-or-drug-is-safe-151178">emergency use authorization</a>, which is temporary permission to commercialize the vaccines because of the public health crisis the U.S. is facing. This is the first time emergency use authorization has been granted to a new vaccine. For this reason, some <a href="https://blog.petrieflom.law.harvard.edu/category/contributors/dorit-reiss/">legal scholars</a> questioned whether existing laws applied to temporarily authorized vaccines.</p>
<p>That question was addressed when the Equal Employment Opportunity Commission issued guidelines that said <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">employers have the right</a> to impose a mandatory COVID-19 vaccination policy. </p>
<p>From a legal perspective, this view is based on the fact that the law allows employers to impose requirements to make sure that employees don’t pose threats to the “health or safety of other individuals in the workplace.” The EEOC treated emergency use vaccines as part of the sets of measures that employers are able to mandate in order to accomplish this goal.</p>
<p>Therefore, the general rule applies and employers should be able to require that employees get vaccinated against COVID-19, within certain limits. These limits – including the exceptions below – are the same as the general exemptions applicable to any employer-mandated vaccination. </p>
<h2>3. Are there religious exemptions?</h2>
<p>Title VII of the Civil Rights Act established that if an employee has a sincerely held <a href="https://www.eeoc.gov/laws/guidance/questions-and-answers-religious-discrimination-workplace">religious belief</a> incompatible with vaccination, the employer cannot require that employee to be vaccinated. The EEOC has traditionally interpreted the concept of “religious belief” <a href="https://www.eeoc.gov/foia/eeoc-informal-discussion-letter-250">very broadly</a>. Vaccine refusal cannot, however, be a personal or politically motivated belief.</p>
<p>If an employee qualifies for a religious exemption, the employer must then try to reasonably accommodate the employee. An example of an accommodation would be for the employer to have the employee switch from in-person to remote work while COVID-19 poses risks to public health.</p>
<p>However, the employer does not have to grant an accommodation if doing so would result in “<a href="https://www.law.cornell.edu/cfr/text/29/1605.2">undue hardship</a>.” Typical cases of undue hardship include situations in which the accommodation would compromise the health and safety of other employees or in which implementing the accommodation is too costly or logistically burdensome. In case of a dispute over what constitutes an undue hardship for the employer, a <a href="https://scholarship.law.missouri.edu/cgi/viewcontent.cgi?article=4367&context=mlr">court would typically</a> be asked to resolve it based on the cost of offering the accommodation, as well as how difficult it is for the employer to implement it.</p>
<h2>4. How about disability-related exemptions?</h2>
<p>The balance of rights between an employee with a disability and her employer is similar to the one described above. Under the Americans with Disabilities Act, if an employee <a href="https://www.govinfo.gov/content/pkg/CFR-2012-title29-vol4/xml/CFR-2012-title29-vol4-sec1630-2.xml">has a disability</a> and cannot safely receive a vaccine, that employee qualifies for an exemption and the employer has to provide <a href="https://adata.org/factsheet/reasonable-accommodations-workplace">reasonable accommodations</a>. But the act also establishes that employers do not have to provide an accommodation that would result in undue hardship.</p>
<p>The technical question here was whether employers could impose COVID-19 vaccination because the Americans with Disabilities Act severely limits the ability of employers to require medical examinations. In its Dec. 16 guidance, the EEOC clearly stated that COVID-19 vaccines <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">do not fall in the “medical examination” category</a>. </p>
<p>Therefore, requiring employee vaccination does not violate federal disability law.</p>
<h2>5. What if the employer cannot provide an accommodation?</h2>
<p>If an employee qualifies for either a religious or disability-related exemption but the employer is unable to provide an accommodation because of undue hardship, then the employer has the right to <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">exclude the employee</a> from going to the workplace.</p>
<p>Given the broad set of rights that the law gives employers in order to promote health and safety, in some cases it is possible for an organization to go even further and terminate employment if a worker refuses vaccination and there is no reasonable way to provide an accommodation. For example, if there is no reasonable accommodation that an employer can provide a barista that would allow her to continue make lattes at the coffee shop where she works, the employer may be able to terminate her employment.</p>
<p>However, the EEOC guidelines <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">explicitly say</a> that the inability to reasonably accommodate an employee does not automatically give the employer the right to fire her. Finding out whether the coffee shop could indeed terminate its unvaccinated barista would depend on a variety of factors, including state law, union agreements and any other potentially applicable requirements at the federal level. </p>
<p>[<em>Research into coronavirus and other news from science</em> <a href="https://theconversation.com/us/newsletters/science-editors-picks-71/?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=science-corona-research">Subscribe to The Conversation’s new science newsletter</a>.]</p><img src="https://counter.theconversation.com/content/152434/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Ana Santos Rutschman does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>The federal agency in charge of enforcing discrimination laws in the workplace said ‘yes,’ but there are some important exceptions and limitations.Ana Santos Rutschman, Assistant Professor of Law, Saint Louis UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1421542020-07-07T12:15:50Z2020-07-07T12:15:50ZCOVID-19: As offices reopen, here’s what to expect if you’re worried about getting sick on the job<figure><img src="https://images.theconversation.com/files/345915/original/file-20200706-3947-1l72ntt.jpg?ixlib=rb-1.1.0&rect=80%2C171%2C6629%2C4295&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">A brave new world. </span> <span class="attribution"><span class="source">Luis Alvarez/Getty Images</span></span></figcaption></figure><p>If you’re among the tens of millions of people returning to work or preparing to do so after months sheltering in place, you may be worried it will put you and your family at increased risk of exposure to COVID-19.</p>
<p>The dilemma may be especially stark for the millions of Americans who can expect to see a significant cut in their unemployment insurance benefits <a href="https://www.usatoday.com/story/money/2020/06/24/unemployment-americans-will-lose-their-extra-600-days-earlier-than-expected/3253111001/">near the end of July</a>, when the US$600 per week subsidy from the federal government is set to expire.</p>
<p>As a <a href="https://law.uoregon.edu/people/faculty/tippett">professor specializing in employment law</a>, I don’t have a lot of reassurance to offer. Employment law is a patchwork at the best of times – let alone during a global pandemic – and legal protections may not cover your situation. Like so many of the challenges people are facing right now, you may be mostly on your own, negotiating the least bad of many bad options.</p>
<p>Here is a basic overview of what your options are under some common scenarios.</p>
<p><strong>I’ve been called back to the office, but I don’t like the idea of being in an enclosed space for nine hours a day.</strong></p>
<p>Workers have good reason to worry about indoor spaces, as scientists <a href="https://www.nytimes.com/2020/07/04/health/239-experts-with-one-big-claim-the-coronavirus-is-airborne.html">increasingly acknowledge</a> that the virus may be airborne. </p>
<p>If you have a medical condition that makes you especially vulnerable to the coronavirus, you may be entitled to a reasonable accommodation under the <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">Americans with Disabilities Act</a>. That means your employer needs to engage in a dialogue with you to figure out if there is a way to limit your exposure – such as remote work, a temporary reassignment or a modified shift. </p>
<p>Alternatively, <a href="https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2020/05/06/some-states-let-vulnerable-workers-turn-down-jobs">some states</a> are allowing medically vulnerable workers to refuse work and remain on unemployment insurance.</p>
<p>[<em>The Conversation’s newsletter explains what’s going on with the coronavirus pandemic. <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-daily">Subscribe now</a>.</em>]</p>
<p>If the business is opening in defiance of a state or local order, you might be able to file a complaint with a <a href="https://www.osha.gov/stateplans">state workplace health and safety agency</a>. Or you could try negotiating a temporary or intermittent remote work arrangement with your employer.</p>
<p>Everyone else has little choice but to head back to the office.</p>
<figure>
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<figcaption><span class="caption">Law professor Michael Z. Green and the author discuss the difficult choices workers face in returning to work.</span></figcaption>
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<p><strong>I believe I’m being asked to work in unsafe conditions.</strong></p>
<p>If you live in a state or city that has adopted a mask requirement – and your worksite is not allowing or enforcing the mask rules – look into how that requirement is being enforced. In Oregon, for example, the governor has <a href="https://www.statesmanjournal.com/story/news/politics/2020/07/06/oregon-coronavirus-cases-osha-enforce-gov-brown-face-mask-requirement/5363667002/">tasked</a> the state Occupational Safety and Health Agency with enforcing the rule. By contrast, the Texas governor’s mask order is being enforced – somewhat inconsistently – by <a href="https://www.cbs19.tv/article/news/local/list-which-east-texas-law-enforcement-offices-will-enforce-mask-mandate-and-which-ones-wont/501-8fab494b-a5e9-4b7e-a01f-029687d0376f">local law enforcement</a>.</p>
<p>For other <a href="https://www.osha.gov/laws-regs/regulations/standardnumber/1977/1977.12#1977.12(b)(2)">safety-related concerns</a>, the first thing you are expected to do is talk to your employer about the unsafe condition. Be specific about the condition that concerns you and the fact that you are worried about your safety.</p>
<p>If you are unionized, conveying your concern to the union will enable it to address the problem on behalf of everyone. Even if you’re not unionized, <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-protected-concerted-activity-unions.aspx">banding together</a> with other employees to advocate for safer working conditions is <a href="https://time.com/5832140/going-back-to-work-coronavirus-rights/">protected</a> under the National Labor Relations Act.</p>
<p>If your employer does not address your safety concerns, you can complain to the state workplace safety agency or the local branch of the federal <a href="https://www.osha.gov/stateplans">Occupational Safety and Health Administration</a>. The agency <a href="https://www.miamiherald.com/news/coronavirus/article243816822.html">should</a> send an inspector to examine the situation or at least send a letter to the employer inquiring about your complaint.</p>
<p>In the meantime, you should refuse to work only if you have no <a href="https://www.osha.gov/laws-regs/regulations/standardnumber/1977/1977.12#1977.12(b)(2)">“reasonable alternative”</a> and the unsafe condition would pose a “real danger of death or serious injury.”</p>
<p><strong>I have to go to work but have children at home and no child care options.</strong></p>
<p>If you work for a company with fewer than 500 employees, <a href="https://theconversation.com/new-federal-sick-leave-law-whos-eligible-whos-not-and-how-many-weeks-do-you-get-134180">you may be eligible for up to 12 weeks</a> of paid leave under the <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">Families First Coronavirus Response Act</a>. But if you’ve been using this leave over the spring or summer, you may be in a <a href="https://www.foxnews.com/politics/cuomo-says-no-decision-on-whether-new-york-schools-will-reopen-in-the-fall-amid-coronavirus">dicey situation</a> by the fall if schools do not fully reopen. </p>
<p>Beyond those 12 weeks of leave, companies are not required to make accommodations for employee child care issues. But failing to do so can make for <a href="https://tallahasseereports.com/2020/07/02/fsu-reverses-remote-work-policy-after-pushback/">bad PR</a>, as Florida State University discovered when it tried to ban parents from watching their kids while working remotely. </p>
<p><strong>I live with a family member who is in a vulnerable population, and I don’t want to expose the person to the virus.</strong></p>
<p>If you <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">need to care</a> for the family member – and work for a company with fewer than 500 employees – you may be eligible for leave under the <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">Families First Coronavirus Response Act</a>. Your employer might request documentation that a health care provider advised the family member to self-quarantine.</p>
<p>Otherwise, you may be out of luck – and may not even get <a href="http://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Attachment_1.pdf">unemployment insurance</a> if you refuse to work. That may mean doing your best to limit your exposure at work and <a href="https://www.npr.org/sections/health-shots/2020/04/16/834424572/how-to-stay-healthy-when-your-child-spouse-or-roommate-has-covid-19">transmission at home</a>.</p>
<p><strong>I think I just got sick from exposure to the coronavirus at work.</strong></p>
<p>You should be eligible for two weeks of paid sick leave under the <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">Families First Coronavirus Response Act</a> if you work for a company with fewer than 500 employees. If you are still sick after that, you may be eligible for <a href="https://www.dol.gov/agencies/whd/fmla">Family and Medical Leave</a>. You’ll also want to check your company’s sick leave policy.</p>
<p>You might be eligible to file for workers’ compensation, which covers <a href="https://www.cdc.gov/niosh/docs/2014-110/pdfs/2014-110.pdf">medical costs and provides some wage replacement</a> for workers who are injured because of work. State law varies a lot when it comes to workers’ compensation, including whether infectious diseases like COVID-19 count as a workplace injury. Your claim will also <a href="https://www.ncci.com/Articles/Pages/Insights-Coronavirus-FAQs.aspx">depend on</a> whether you can show that you contracted the coronavirus at work – as opposed to exposure from other places. <a href="https://www.morganlewis.com/pubs/evolving-state-responses-to-workers-compensation-amid-covid-19-a-50-state-survey-cv19-lf">Some states</a> are issuing presumptions that certain kinds of front-line workers – like health care workers and first responders – contracted the virus at work.</p>
<p><strong>My company asked me to sign a contract saying I waive my legal rights if I contract COVID-19.</strong></p>
<p>If you are presented with a waiver to return to work, consider asking whether you are required to sign it. Sometimes workplace contracts are actually optional, but you may not find out without asking directly or reading the fine print. </p>
<p>But even if signing is mandatory, workers compensation claims are generally not waivable. In other words, if you contract COVID-19 as a result of a workplace exposure, a waiver form shouldn’t be a barrier to filing a claim and potentially receiving compensation.</p>
<p><em>This is an updated version of an <a href="https://theconversation.com/returning-to-work-an-employment-law-expert-explains-your-rights-in-getting-your-boss-to-accommodate-you-and-your-familys-safety-138675">article originally published</a> on May 18, 2020.</em></p><img src="https://counter.theconversation.com/content/142154/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Tens of millions of Americans who have been telecommuting during the pandemic are beginning to head back to the office – even though COVID-19 remains a threat.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1409032020-06-16T19:15:39Z2020-06-16T19:15:39ZSupreme Court expands workplace equality to LGBTQ employees, but questions remain<figure><img src="https://images.theconversation.com/files/342266/original/file-20200616-23231-17gklex.jpg?ixlib=rb-1.1.0&rect=49%2C0%2C5472%2C3645&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">People gather near the Stonewall Inn in New York City to celebrate the Supreme Court's landmark ruling on LGBTQ workers' rights.</span> <span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/people-gather-at-the-historic-stonewall-inn-to-celebrate-news-photo/1220372240">John Lamparski/NurPhoto via Getty Images</a></span></figcaption></figure><p>Even before the Supreme Court’s June 15 decision, many Americans <a href="https://www.reuters.com/article/us-usa-lgbt-stonewall-equality/americans-perception-of-lgbtq-rights-under-federal-law-largely-incorrect-reuters-ipsos-idUSKCN1TC120">already – and incorrectly – believed</a> that federal law protected lesbians, gay men and transgender people from being fired or otherwise discriminated against at work.</p>
<p>The road to the <a href="https://www.scotusblog.com/2020/06/opinion-analysis-federal-employment-discrimination-law-protects-gay-and-transgender-employees/">ruling confirming that belief</a> involved years of advocacy and many losses – and while this <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">decision</a> is a landmark in that effort, more legal work remains to be done to determine the full scope of LGBTQ workers’ rights.</p>
<h2>Concerns about sex discrimination</h2>
<p>The <a href="https://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=3038&context=bclr">Civil Rights Act of 1964</a> was a historic law that banned U.S. employers from discriminating against workers on the basis of their race, color, religion, national origin and sex. </p>
<p>During the bill’s debate, members of the House and Senate had lengthy discussions about discrimination on the basis of race, color, religion and national origin – but <a href="https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1377&context=lawineq">the “sex” category sparked little serious debate</a>. </p>
<p>Early legal and advocacy efforts from <a href="https://doi.org/10.1111/lasr.12155">the National Organization for Women and the Equal Employment Opportunity Commission</a> helped lead the Supreme Court to begin to acknowledge, in the early 1970s, that some forms of discrimination against women were illegal. The first major ruling on this issue was in 1971, <a href="https://supreme.justia.com/cases/federal/us/400/542/">striking down an employer policy of not hiring mothers</a> of preschool-age children, though fathers of children in that age group were welcomed. Sex stereotyping, the court explained, violated the law.</p>
<p>In 1978, the court followed up, ruling that an <a href="https://supreme.justia.com/cases/federal/us/435/702/">employer could not require women to contribute more</a> to pension funds than men, even though women tend to live longer than men.</p>
<h2>The struggle for LGBTQ rights</h2>
<p>Protecting gay, lesbian, and transgender rights was still a ways off. In 1979, the Ninth U.S. Circuit Court of Appeals found that <a href="https://law.justia.com/cases/federal/appellate-courts/F2/608/327/249197/">discrimination on the basis of sexual orientation</a> was not sex discrimination, and therefore was not illegal. That same year, the Fifth Circuit <a href="https://law.resource.org/pub/us/case/reporter/F2/597/597.F2d.936.78-3536.html">dismissed a similar suit</a>. In 1984, the Seventh Circuit likewise found that a person who had been fired after fully transitioning to a woman <a href="http://www.transgenderlaw.org/cases/ulane.htm">could not sue for discrimination</a>.</p>
<p>It wasn’t until 1998 that the Supreme Court acknowledged the existence of LGBTQ issues in the workplace. In <a href="https://www.law.cornell.edu/supct/html/96-568.ZO.html">Oncale v. Sundowner Offshore Services</a>, a male plaintiff claimed that he had faced sexual harassment from his male co-workers. Their employer responded that the law did not prohibit same-sex harassment. A unanimous court, led by Justice Antonin Scalia, disagreed and allowed the suit to proceed.</p>
<p>But that ruling did not make clear whether workers could be fired, demoted or disciplined on the basis of their sexual orientation or gender identity. Congress tried to address the question, and the Senate and the House of Representatives have <a href="https://time.com/5554531/equality-act-lgbt-rights-trump/">separately passed bills recognizing this form of discrimination</a> – but never in the same legislative session, which means it couldn’t become law. And different appeals courts have issued rulings that disagree with each other, producing inconsistent national standards.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=400&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=400&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=400&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342269/original/file-20200616-23266-98zinj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A man holds a pride flag in front of the U.S. Supreme Court building after a ruling protecting LGBTQ workers’ rights.</span>
<span class="attribution"><a class="source" href="https://www.gettyimages.com/detail/news-photo/joseph-fons-holding-a-pride-flag-in-front-of-the-u-s-news-photo/1249824201">Chip Somodevilla/Getty Images</a></span>
</figcaption>
</figure>
<h2>Three cases come to Washington, D.C.</h2>
<p>In fall 2019, the Supreme Court agreed to review three cases about employment discrimination against LGBTQ workers. </p>
<p>Two of the cases, <a href="https://www.scotusblog.com/wp-content/uploads/2018/06/17-1618-opinion-below.pdf">Bostock v. Clayton County</a> and <a href="https://casetext.com/case/zarda-v-altitude-express-inc-1">Altitude Express v. Zarda</a>, involved gay men who claimed they were illegally fired for being gay. The plaintiff in the third case was Aimee Stephens, who <a href="https://casetext.com/case/equal-empt-opportunity-commn-v-rg-gr-harris-funeral-homes-inc-5">lost her job</a> shortly after informing her employer that she intended to transition and would begin representing herself at work as a woman.</p>
<p>The core question in each was how to understand the law’s ban on sex discrimination.</p>
<p>Associate Justice Neil Gorsuch, appointed to the court by President Donald Trump in 2017, wrote the majority opinion in <a href="https://www.supremecourt.gov/opinions/19pdf/17-1618_hfci.pdf">the 6-3 ruling</a> that resolved all three cases. Joined by Chief Justice John Roberts and Associate Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, he declared that discrimination against homosexual, bisexual, and transgender people is inherently sex discrimination, and therefore illegal. </p>
<p>Gorsuch’s reasoning was straightforward: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” He imagines two model employees, one man and one woman, arriving at the boss’s holiday party with their wives: If the woman would be fired but not the man, Gorsuch wrote, that is sex discrimination.</p>
<h2>A changing understanding</h2>
<p>Gorsuch is best known as a conservative jurist, concerned about the <a href="https://www.washingtonpost.com/news/the-fix/wp/2017/02/01/neil-gorsuch-antonin-scalia-and-originalism-explained/">specific texts of laws and the original intentions</a> behind them. He rested his interpretation of the Civil Rights Act on the evolution of the law over the years. Since the law’s passage, the Equal Employment Opportunity Commission and federal courts have come to understand a broader definition of sex discrimination, covering motherhood, differential pension programs, pregnancy and sexual harassment. </p>
<p>This history, Gorsuch wrote, signals that the law was meant to be read, and used, in inclusive ways: “refus[ing] enforcement … because the parties before us happened to be unpopular at the time of the law’s passage … would tilt the scales of justice in favor of the strong … and neglect the promise that all persons are entitled to the benefit of the law’s terms.”</p>
<p>He summarized the court’s finding: “An employer who fires an individual merely for being gay or transgender defies the law.”</p>
<h2>Concerns, and questions, remain</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=994&fit=crop&dpr=1 600w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=994&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=994&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1249&fit=crop&dpr=1 754w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1249&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/342267/original/file-20200616-23217-1dkfvxv.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1249&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Aimee Stephens, a transgender woman whose firing from her job was at the center of the Supreme Court case, died in May, before the ruling in her case was delivered.</span>
<span class="attribution"><a class="source" href="http://www.apimages.com/metadata/Index/Aimee-Stephens-Has-Passed-Away-at-59/7a9a0f359b254479a771de1f6c3597a8/3/0">Patsy Lynch/MediaPunch /IPX</a></span>
</figcaption>
</figure>
<p>Dissents came from Associate Justice Samuel Alito, joined by Clarence Thomas, and from Associate Justice Brett Kavanaugh. </p>
<p>Alito expressed concern that the new ruling “will threaten freedom of religion, freedom of speech, and personal privacy and safety.” He offered specific example concerns, including allowing people with penises to use women’s bathrooms, stacking women’s athletic competitions with athletes with “the strength and size of a male … and students who are taking male hormones,” assigning college roommates based on gender identity rather than sex, requiring religious organizations to hire LGBTQ people, and limiting free speech disapproving of LGBTQ individuals or their relationships.</p>
<p>Alito also feared that the court’s opinion might lay broader groundwork for a constitutional ruling protecting people from discrimination based on sexual orientation and gender identity as strictly as it protects them from sex discrimination. </p>
<p>Many of these concerns may come before federal courts, and ultimately the Supreme Court, in years to come. Gorsuch’s ruling specifically did not decide on whether the results might, in some cases, tread inappropriately on religious liberty. </p>
<p>LGBTQ advocates are celebrating a major acknowledgment of their human rights, though with some sadness: <a href="https://www.nbcnews.com/feature/nbc-out/donald-zarda-man-center-major-gay-rights-case-never-got-n852846">Donald Zarda</a> and <a href="https://www.nytimes.com/2020/05/12/us/aimee-stephens-supreme-court-dead.html">Aimee Stephens</a>, two of the three people at the center of the cases, died before learning of their cases’ resolution. And advocates know many more disputes – and court cases – are yet to come.</p>
<p>[<em>Deep knowledge, daily.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=deepknowledge">Sign up for The Conversation’s newsletter</a>.]</p><img src="https://counter.theconversation.com/content/140903/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Julie Novkov does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Federal law now protects lesbians, gay men and transgender people from being fired or otherwise discriminated against at work. But there are more questions and court cases to come about their rights.Julie Novkov, Professor of Political Science and Women’s, Gender and Sexuality Studies, University at Albany, State University of New YorkLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1386752020-05-18T17:37:50Z2020-05-18T17:37:50ZReturning to work? An employment law expert explains your rights in getting your boss to accommodate you and your family’s safety<figure><img src="https://images.theconversation.com/files/335823/original/file-20200518-83380-1tchkty.jpg?ixlib=rb-1.1.0&rect=85%2C0%2C5094%2C3269&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">To some, work might seem like a dangerous place to be right now.</span> <span class="attribution"><span class="source">Drazen Zigic/Shutterstock.com</span></span></figcaption></figure><p>With <a href="https://www.nytimes.com/interactive/2020/us/states-reopen-map-coronavirus.html">states reopening</a> – or planning to reopen – in the coming weeks and months, you may be worried about what returning to work will mean for you and your family, particularly if it means increased exposure to COVID-19.</p>
<p>As a <a href="https://law.uoregon.edu/people/faculty/tippett">professor specializing in employment law</a>, I don’t have a lot of reassurance to offer. Employment law is a patchwork at the best of times – let alone during a global pandemic – and legal protections may not cover your situation. Like so many of the challenges people are facing right now, you may be mostly on your own, negotiating the least bad of many bad options.</p>
<p>Here is a basic overview of what your options are under some common scenarios.</p>
<p><strong>I’ve been called back to the office, but I don’t like the idea of being in an enclosed space for nine hours a day.</strong></p>
<p>If you have a medical condition that makes you especially vulnerable to the coronavirus, you may be entitled to a reasonable accommodation under the <a href="https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws">Americans with Disabilities Act</a>. That means your employer needs to engage in a dialogue with you to figure out if there is a way to limit your exposure – such as remote work, a temporary reassignment or a modified shift. </p>
<p>Otherwise, your options are more limited. </p>
<p>Unionized workers can ask their union for assistance. If the office opening is in violation of a state stay-at-home order, you might be able to file a complaint with a <a href="https://www.osha.gov/stateplans">state workplace health and safety agency</a>. Or you could try negotiating some sort of temporary or intermittent remote work arrangement with your employer.</p>
<p>Everyone else has little choice but to head back to the office. To make matters worse, the Department of Labor has issued guidance suggesting that if you refuse to return to work due to <a href="https://www.dol.gov/coronavirus/unemployment-insurance#fact-sheets">general coronavirus-related</a> apprehension – as opposed to a specific safety hazard – you may not be eligible for <a href="https://www.dol.gov/coronavirus/unemployment-insurance">extended unemployment insurance</a>.</p>
<p><strong>I believe I’m being asked to work in unsafe conditions.</strong></p>
<p>Under <a href="https://www.osha.gov/laws-regs/regulations/standardnumber/1977/1977.12#1977.12(b)(2)">federal workplace safety law</a>, the first thing you are expected to do is talk to your employer about the unsafe condition. Be specific about the condition that concerns you and the fact that you are worried about your safety.</p>
<p>If you are unionized, conveying your concern to the union will enable it to address the problem on behalf of everyone. Even if you’re not unionized, <a href="https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/coronavirus-protected-concerted-activity-unions.aspx">banding together</a> with other employees to advocate for safer working conditions is <a href="https://time.com/5832140/going-back-to-work-coronavirus-rights/">protected</a> under the National Labor Relations Act.</p>
<p>If your employer does not address your safety concerns, you can complain to the state workplace safety agency or the local branch of the federal <a href="https://www.osha.gov/stateplans">Occupational Safety and Health Administration</a>. The agency should send an inspector to examine the situation. </p>
<p>In the meantime, you should refuse to work only if you have no <a href="https://www.osha.gov/laws-regs/regulations/standardnumber/1977/1977.12#1977.12(b)(2)">“reasonable alternative”</a> and the unsafe condition would pose a “real danger of death or serious injury.”</p>
<p><strong>I have to go to work but have children at home and no child care options.</strong></p>
<p>If you work for a company with fewer than 500 employees, <a href="https://theconversation.com/new-federal-sick-leave-law-whos-eligible-whos-not-and-how-many-weeks-do-you-get-134180">you may be eligible for up to 12 weeks</a> of paid leave under the <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">Families First Coronavirus Response Act</a>. But if you’ve been using this leave throughout the pandemic, you may be in a dicey situation in the summer as child care centers remain shuttered and <a href="https://www.wgbh.org/news/local-news/2020/05/13/summer-camps-are-closed-or-on-hold-leaving-families-scrambling">summer camps are canceled</a>. </p>
<p>Beyond those 12 weeks of leave, companies are not required to make accommodations for employee child care issues. If the leave runs out – or you work for a large company not covered by the leave law – you may be eligible for expanded unemployment insurance <a href="http://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Attachment_1.pdf">under the federal Coronavirus Aid, Relief and Economic Security Act</a>. </p>
<p><strong>I live with a family member who is in a vulnerable population, and I don’t want to expose the person to the virus.</strong></p>
<p>If you <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">need to care</a> for the family member – and work for a company with fewer than 500 employees – you may be eligible for leave under the <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">Families First Coronavirus Response Act</a>. Your employer might request documentation that a health care provider advised the family member to self-quarantine.</p>
<p>Otherwise, you may be out of luck – and may not even get <a href="http://wdr.doleta.gov/directives/attach/UIPL/UIPL_16-20_Attachment_1.pdf">unemployment insurance</a> if you refuse to work. That may mean doing your best to limit your exposure at work and <a href="https://www.npr.org/sections/health-shots/2020/04/16/834424572/how-to-stay-healthy-when-your-child-spouse-or-roommate-has-covid-19">transmission at home</a>.</p>
<p><strong>I think I just got sick from exposure to the coronavirus at work.</strong></p>
<p>You should be eligible for two weeks of paid sick leave under the <a href="https://www.dol.gov/agencies/whd/pandemic/ffcra-employer-paid-leave">Families First Coronavirus Response Act</a> if you work for a company with fewer than 500 employees. If you are still sick after that, you may be eligible for <a href="https://www.dol.gov/agencies/whd/fmla">Family and Medical Leave</a>. You’ll also want to check your company’s sick leave policy. The Occupational Safety and Health Administration <a href="https://www.osha.gov/Publications/OSHA3990.pdf">advises</a> companies to adopt flexible sick leave policies that actively encourage sick workers to stay home.</p>
<p>You might be eligible to file for workers’ compensation, which covers <a href="https://www.cdc.gov/niosh/docs/2014-110/pdfs/2014-110.pdf">medical costs and provides some wage replacement</a> for workers who are injured because of work. State law varies a lot when it comes to workers’ compensation, including whether infectious diseases like COVID-19 count as a workplace injury. Your claim will also <a href="https://www.ncci.com/Articles/Pages/Insights-Coronavirus-FAQs.aspx">depend on</a> whether you can show that you contracted the coronavirus at work – as opposed to exposure from other places. <a href="https://www.morganlewis.com/pubs/evolving-state-responses-to-workers-compensation-amid-covid-19-a-50-state-survey-cv19-lf">Some states</a> are issuing presumptions that certain kinds of frontline workers – like health care workers and first responders – contracted the virus at work.</p>
<p><strong>I was injured by a customer who got violent after being asked to wear a mask.</strong></p>
<p>Some retail workers are reporting being <a href="https://www.nytimes.com/2020/05/15/us/coronavirus-masks-violence.html?action=click&module=Spotlight&pgtype=Homepage">violently assaulted</a> by customers when enforcing new social distancing rules, such as wearing a mask. It’s not clear how common this is, but even prior to the pandemic, workplace violence was a major cause of workplace injury, affecting an <a href="https://www.cdc.gov/niosh/docs/2006-144/pdfs/2006-144.pdf">average of 1.7 million workers</a> per year. </p>
<p>Injuries as a result of violent customers would generally be <a href="https://calawyers.org/workers-compensation/workers-comp-issues-resulting-from-workplace-violence/">covered by workers’ compensation</a>. </p>
<p>Of course, it’s better to avoid being injured in the first place, so frontline workers should consider asking management about <a href="https://www.osha.gov/SLTC/workplaceviolence/evaluation.html">the plan</a> for responding if a customer’s behavior starts to escalate. </p>
<p>[<em>The Conversation’s newsletter explains what’s going on with the coronavirus pandemic. <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-daily">Subscribe now</a>.</em>]</p><img src="https://counter.theconversation.com/content/138675/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Tens of millions of Americans who have been telecommuting during the pandemic may have to head back to the office as governors lift stay-at-home orders. Here’s what you can do if you’d rather not.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1341802020-03-19T18:22:54Z2020-03-19T18:22:54ZNew federal sick leave law – who’s eligible, who’s not and how many weeks do you get<figure><img src="https://images.theconversation.com/files/321986/original/file-20200320-22627-w08edz.jpg?ixlib=rb-1.1.0&rect=139%2C114%2C5324%2C3252&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">With schools closed, parents such as Jennifer Green, left, and Lisa Spalding, right, must stay at home with their children. </span> <span class="attribution"><span class="source">Suzanne Kreiter/The Boston Globe via Getty Images</span></span></figcaption></figure><p>On March 18, President Donald Trump signed the <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201%5D(https://www.congress.gov/bill/116th-congress/house-bill/6201">Families First Coronavirus Response Act</a> into law. </p>
<p>The legislation is an emergency intervention to provide paid leave and other support to millions of workers sidelined by school closures, quarantines and caregiving. </p>
<p>An obvious question you’re probably wondering is, “How will it affect me?” </p>
<p>The bad news is that the law does not provide blanket coverage for all workers. Instead, it’s a confusing mess – legislative Swiss cheese, full of exceptions and gradations that affect whether you are covered, for how long and how much pay you can expect to receive. </p>
<p>I <a href="https://uonews.uoregon.edu/elizabeth-tippett-school-law">study employment law</a> and have combed through the bill to make sense of it. The law <a href="https://time.com/5803671/paid-leave-imminent-coronavirus/">also provides</a> emergency funding for unemployment insurance and subsidizes some employer health care premiums, but my focus here is on the core elements pertaining to sick and family leave.</p>
<p>Here’s what I learned.</p>
<h2>Small, medium or large</h2>
<p>To figure out whether you are covered, the first thing you’ll need to answer is how many people work at your company.</p>
<p>If your employer has 500 or more workers, it is excluded from the new law. Instead, workers at those companies will need to rely on any remaining sick leave benefits available under company policy or state law. </p>
<p><a href="https://www.law360.com/newyork/articles/1254195/cuomo-plans-to-sign-paid-sick-leave-bill-amid-coronavirus">Several states</a>, including New York, California and Washington, are also considering emergency legislation tied to the coronavirus pandemic and may offer some relief for workers at these bigger companies. These workers can also make use of the 1993 <a href="https://www.dol.gov/agencies/whd/fmla">Family and Medical Leave Act</a>, which provides for unpaid leave if the employee or a family member falls seriously ill.</p>
<p>In addition, some large employers have made new accommodations for their workers. Walmart, the nation’s largest employer, for example, has <a href="https://www.nytimes.com/2020/03/11/business/new-sick-leave-policy.html">extended</a> its sick leave benefits for hourly workers. And coffee chain Starbucks expanded its existing sick leave policy to provide <a href="https://www.cnbc.com/2020/03/11/starbucks-will-offer-catastrophe-pay-to-baristas-exposed-to-the-coronavirus.html">paid leave</a> of up to 26 weeks if an employee contracts COVID-19 and is unable to return to work.</p>
<p>If your company employs fewer than 500 people, you should be covered by the new law. But there’s another exception: Businesses with fewer than 50 employees can make use of a hardship <a href="https://www.congress.gov/bill/116th-congress/house-bill/6201/text">exemption</a> if providing leave might put them out of business.</p>
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<h2>School closures</h2>
<p>Assuming your company is covered, the amount of leave available – and how much workers can expect to get paid – will depend on the reason you aren’t able to report to work or do your job remotely.</p>
<p>Here’s where it gets really complicated. </p>
<p>If you are stuck at home due to the closure of a child’s school or day care, you will be eligible for leave under two separate parts of the new law – paid sick leave and family and medical leave. </p>
<p>Congress seems to have structured the law to allow working parents sidelined by a school closure to use both forms of leave at once. Parents would request up to 12 weeks of leave as family and medical leave for a school closure. But since this part of the law doesn’t offer pay until the third week, parents could use the new sick leave provisions to receive income for the first two weeks. </p>
<p>Whether you’re using sick or family leave, you can expect to receive two-thirds of your usual pay, or up to US$200 per day. The money would come directly from your employer who will be reimbursed by tax credits.</p>
<p>Alternatively, people could use the sick leave for the first two weeks and then take 12 weeks under family leave, for a total of 14 weeks, but that would include two weeks that are unpaid.</p>
<p>If you have any available vacation or sick pay under your company’s policy, you may want to use that first since it typically provides full pay.</p>
<h2>What happens if you get sick</h2>
<p>Workers who are directly affected by the new coronavirus can expect more generous income replacement – but only briefly. </p>
<p>If you are under government-ordered quarantine or isolation, self-isolating at the instruction of a health care provider or experiencing COVID-19 symptoms and seeking a medical diagnosis, you can make use of the new federal sick leave law for up to two weeks. During this time, you should receive your usual pay, capped at $511 per day. </p>
<p>If you become seriously ill beyond two weeks, the new law does not offer additional paid leave. However, you may be eligible to take another 12 weeks of unpaid leave under the <a href="https://www.dol.gov/agencies/whd/laws-and-regulations/laws/fmla">1993 Family and Medical Leave Act</a>. This covers only companies with more than 50 people and workers employed there for longer than 12 months. During this time, your job is protected, but you may be required to use any accrued sick leave or vacation available under company policy. </p>
<p>The rules are similar if you are caring for someone who is under government-ordered quarantine or isolation or has been ordered to self-isolate by a health care provider. The only difference is that your income would be only two-thirds of your usual pay, capped at $200 a day, for two weeks.</p>
<p>And again, if you are caring for a family member who becomes seriously ill, you may be able to take up to 12 weeks of unpaid leave under the 1993 act without losing your job.</p>
<p>In normal times, legislation like this would have been considered broad and ambitious, but as the crisis deepens, its exclusions will likely leave vulnerable workers exposed. With <a href="https://www.nytimes.com/2020/03/18/us/politics/donald-trump-coronavirus-trump-stimulus.html">another stimulus bill in the works</a>, Congress will have another chance to help Americans whose lives have been turned upside down by this pandemic. </p>
<p>[<em>You need to understand the coronavirus pandemic, and we can help.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=upper-coronavirus-help">Read our newsletter</a>.]</p><img src="https://counter.theconversation.com/content/134180/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Confused about how the new law affects you? You’re not alone. An employment law scholar explains the ins and outs.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1332262020-03-09T17:14:15Z2020-03-09T17:14:15ZCan I take time off if my child’s school is closed for coronavirus? 5 questions on sick leave laws answered<figure><img src="https://images.theconversation.com/files/319348/original/file-20200309-118890-c2i20r.jpg?ixlib=rb-1.1.0&rect=159%2C168%2C5446%2C3572&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Inadequate leave policies means many of us work while sick.</span> <span class="attribution"><span class="source">PeopleImages/Getty Images</span></span></figcaption></figure><p><em>Editor’s note: Lawmakers <a href="https://www.nytimes.com/2020/03/12/us/politics/trump-house-coronavirus-relief-bill.html?action=click&module=Spotlight&pgtype=Homepage">are debating a coronavirus relief package</a> that could include emergency paid leave benefits for all workers affected by the pandemic. Meanwhile, the <a href="https://www.npr.org/sections/goatsandsoda/2020/03/11/814474930/coronavirus-covid-19-is-now-officially-a-pandemic-who-says">spread of COVID-19</a> is leaving workers in the United States scrambling to figure out what happens to their job – and their pay – if it prevents them from reporting to work. The answer will depend on your employer’s policy, the laws of your state and the reason you will be away. Elizabeth Tippett, who <a href="https://blogs.uoregon.edu/liztippett/">has spent over a dozen years as a workplace lawyer and scholar</a>, offers a primer.</em> </p>
<h2>1. Can I take time off if I get sick with coronavirus?</h2>
<p>The first thing to do is figure out whether your company has a sick leave policy. </p>
<p><a href="https://www.dol.gov/general/topic/workhours/sickleave">Sick leave</a> allows you to be paid while you are away from work due to illness. Sometimes companies have a “paid time off” policy instead of a sick leave policy, in which vacation is combined with sick leave into a bank of time that can be used for either purpose.</p>
<p>Many sick leave policies are structured to accrue sick leave over time – for example, one hour of sick time for every 30 hours worked. These hours might roll over from year to year and be capped once you reach a maximum amount. Other times, companies have a lump sum policy, where they award you a fixed amount of sick leave that you can use over the course of the year. </p>
<p>However, not every company has a sick policy – the Bureau of Labor Statistics <a href="https://www.bls.gov/news.release/pdf/ebs2.pdf">estimates</a> that roughly a quarter of workers have no access to paid sick leave. Still, it’s worth checking whether your workplace is required to offer sick leave under state or local law. <a href="https://www.kff.org/womens-health-policy/fact-sheet/paid-family-leave-and-sick-days-in-the-u-s/">Around 10 states</a>, and many additional municipalities, mandate paid sick leave policies. </p>
<p>There is no federal law requiring sick leave, though House Democrats have <a href="https://appropriations.house.gov/sites/democrats.appropriations.house.gov/files/Families%20First%20summary.pdf">proposed</a> a bill to address the coronavirus outbreak that would require companies to make 14 days of paid sick leave available to workers in areas that have been declared a public health emergency. Workers could then use the sick leave if they need to stay home due to illness or quarantine or because their workplace or child’s school has closed. Workers forced to stay home for more than 14 days could apply for additional paid leave benefits from the Social Security Agency, which would provide workers with up to two-thirds of their lost wages after those 14 days.</p>
<h2>2. Can I take time off to care for a family member with coronavirus?</h2>
<p>Here, too, you’ll want to check your company’s sick leave policy. </p>
<p>Many policies allow workers to use sick time to care for family members that are ill. State sick leave laws frequently <a href="https://www.nj.gov/labor/forms_pdfs/lwdhome/Legal/earnedsickleave.pdf">require</a> that employers <a href="https://www.dir.ca.gov/dlse/Paid_Sick_Leave.htm">permit</a> workers to <a href="https://www1.nyc.gov/site/dca/workers/workersrights/paid-sick-leave-law-for-workers.page">use</a> accrued sick leave for caring for family members.</p>
<h2>3. Can I take time off if my child’s school is closed?</h2>
<p>A few states and municipalities – including <a href="http://www.legislature.mi.gov/documents/2017-2018/publicact/pdf/2018-PA-0369.pdf">Michigan</a>, <a href="https://nj.gov/labor/wagehour/lawregs/nj_state_wage_and_hour_laws_and_regulations.html#11D1">New Jersey</a>, <a href="http://docs.sandiego.gov/municode/MuniCodeChapter03/Ch03Art09Division01.pdf">San Diego</a> and <a href="http://library.amlegal.com/nxt/gateway.dll/Illinois/chicago_il/title1generalprovisions/chapter1-24thechicagominimumwageandpaids?f=templates$fn=default.htm$3.0$vid=amlegal:chicago_il$anc=JD_Ch.1-24">Chicago</a> – anticipated a problem like school closures due to a public health crisis and specifically said sick leave can be used in the event of such emergencies.</p>
<p>In those states and cities, your employer’s policy should conform to that language. </p>
<p>Elsewhere, employers tend to design their sick leave policies around more <a href="https://webcache.googleusercontent.com/search?q=cache:CnuF8EFpdSQJ:https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_004049.aspx">routine absences</a> and may not include school closures in their policies.</p>
<h2>4. What if I run out of sick time?</h2>
<p>State and municipal sick leave laws generally require only that employers provide a very modest amount of sick time – <a href="https://namwolf.org/wp-content/uploads/2019/10/LE-PAC-50-State-Survey-Paid-Sick-Leave-laws-10.16.2019.pdf">typically</a> between one and two weeks per year. And if you just started a new job in recent months, you may not have accrued much sick time. </p>
<p>If you have accrued vacation time, you may be able to use that once your sick leave runs out. Alternatively, sometimes companies officially – or unofficially – let workers take additional time off on an unpaid basis. If you’ve used up your sick leave, you could also try asking if you can have a “negative” sick leave balance, in which you are essentially borrowing from future sick pay accruals, allowing you to continue to receive pay for a limited period of time.</p>
<p>If you or a family member become seriously ill, you might be eligible for up to 12 weeks of unpaid leave under the federal <a href="https://www.dol.gov/agencies/whd/fact-sheets/28-fmla">Family and Medical Leave Act</a>. This leave is available only for workers at companies with more than 50 employees and who have worked there for 12 months or longer. The regulations for the Family and Medical Leave Act state that the <a href="https://www.ecfr.gov/cgi-bin/text-idx?c=ecfr&sid=abbd92cdff37c5d32de741cc5ccc1e81&rgn=div5&view=text&node=29:3.1.1.3.54&idno=29#se29.3.825_1113">“flu”</a> is generally not considered a serious enough condition to qualify for leave, unless “inpatient hospital care is required or unless complications develop.” </p>
<p>Some states – like <a href="https://www.edd.ca.gov/Disability/Paid_Family_Leave.htm">California</a> and <a href="https://paidfamilyleave.ny.gov/paid-family-leave-family-care">New York</a> – also have family and medical leave laws that cover a broader range of employees and may provide <a href="https://www.edd.ca.gov/Disability/Paid_Family_Leave.htm">partial pay</a>. However, these generally require that the employee or the ill family member develop a serious health condition, beyond your average flu symptoms.</p>
<h2>5. Can I stay home if I’m worried about catching COVID-19 from co-workers?</h2>
<p>Tech companies with hubs in the Seattle area have responded to a coronavirus outbreak in that state by advising or allowing <a href="https://www.npr.org/2020/03/05/812173963/coronavirus-amazon-facebook-google-microsoft-urge-seattle-workers-to-stay-home">employees</a> to work remotely. </p>
<p>Some <a href="http://www.legislature.mi.gov/documents/2017-2018/publicact/pdf/2018-PA-0369.pdf">state</a> and <a href="http://library.amlegal.com/nxt/gateway.dll/Illinois/chicago_il/title1generalprovisions/chapter1-24thechicagominimumwageandpaids?f=templates$fn=default.htm$3.0$vid=amlegal:chicago_il$anc=JD_Ch.1-24">municipal</a> sick leave laws authorize employees to use sick leave in the event of “closure” of an employee’s place of business in a public health emergency.</p>
<p>Otherwise, your best option is to check whether the company has a telecommuting policy that allows remote work. Even so, such policies generally give the company discretion whether remote work is compatible with your job and the needs of the company. </p>
<p>Failing that, you could try using up any vacation time you’ve accrued. But with <a href="https://news.artnet.com/art-world/rome-raphael-coronavirus-quarantine-1797390">tourist hotspots</a>,<a href="https://www.wsj.com/articles/can-you-play-games-with-no-fans-sports-brace-for-the-coronavirus-impact-11583681730?mod=hp_major_pos1#cxrecs_s">sporting events</a> and <a href="https://www.kvue.com/article/entertainment/events/sxsw/sxsw-austin-2020-cancelled-petition-coronavirus/269-3423a862-7cd7-49be-8125-41d84b8c6a13">festivals</a> shutting down, it may not be much of a holiday.</p>
<p>_This is an updated version of an article originally published on March 9, 2020.</p>
<p>[<em>Insight, in your inbox each day.</em> <a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=insight">You can get it with The Conversation’s email newsletter</a>.]</p><img src="https://counter.theconversation.com/content/133226/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A workplace scholar addresses some common questions workers may have about taking time off due to COVID-19.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1323642020-02-25T04:16:55Z2020-02-25T04:16:55ZAfter damning report into Dreamworld tragedy, who can be held accountable under the law?<figure><img src="https://images.theconversation.com/files/317012/original/file-20200225-24701-19v580i.jpg?ixlib=rb-1.1.0&rect=830%2C104%2C2450%2C2007&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">
</span> <span class="attribution"><span class="source">Dan Peled/AAP</span></span></figcaption></figure><p>Queensland Coroner James McDougall <a href="https://www.theguardian.com/australia-news/2020/feb/24/dreamworld-inquest-coroner-dangerous-thunder-river-rapids-ride-safety-practices-deaths">has handed down his findings</a> into the tragic deaths of four people on Dreamworld’s Thunder River Rapids ride in 2016. </p>
<p>He reported a litany of failings by Dreamworld’s owner, Ardent Leisure, including shoddy record keeping, ad hoc inspections of rides and poor maintenance.</p>
<p>McDougall wrote “there is no evidence Dreamworld ever conducted a proper risk assessment in the thirty years of operation of the ride” and that the safety systems in place were “frighteningly unsophisticated”. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/dreamworld-owner-ardent-leisure-needs-a-lesson-in-managing-a-crisis-67841">Dreamworld owner Ardent Leisure needs a lesson in managing a crisis</a>
</strong>
</em>
</p>
<hr>
<p>His conclusion was damning for the company: these failings, he said, contributed to the deaths of the four victims. Coroners are often circumspect in reporting their deliberations and findings. This is a report that pulls no punches. </p>
<p>Former Ardent Leisure CEO Deborah Thomas responded immediately, saying the findings are “an important milestone in the extensive and ongoing investigation” into the deaths and she hoped the recommendations will prevent such a tragedy occurring again.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=504&fit=crop&dpr=1 754w, https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=504&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/317014/original/file-20200225-24668-t5xwdj.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=504&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Four people died when a water pump malfunctioned on the Dreamworld ride.</span>
<span class="attribution"><span class="source">Dan Peled/AAP</span></span>
</figcaption>
</figure>
<h2>Charges under workplace laws</h2>
<p>So, what happens now? Police have not pursued criminal charges under the general criminal law against any individual Dreamworld staff. In these cases, prosecutions are more likely to be founded on workplace laws designed for this specific purpose.</p>
<p>But it is not the role of coroners to lay charges – they simply put their findings before the relevant authorities for consideration. </p>
<p>A famous example is a coroner’s unequivocal finding in 1999 that Domenic Perre had made and sent a parcel bomb to the Adelaide office of the National Crime Authority that killed a police detective in March 1994. Twenty years later, Perre has been <a href="https://www.abc.net.au/news/2020-02-17/domenic-perre-enters-not-guilty-plea-over-nca-bombing-murder/11970926">committed to stand trial</a> on a charge of murder as a result of subsequent police enquiries into the detective’s death.</p>
<p>However, in the Dreamworld inquest, the coroner said he “reasonably suspected” Ardent Leisure had committed an offence under <a href="https://www.worksafe.qld.gov.au/laws-and-compliance/workplace-health-and-safety-laws/laws-and-legislation/work-health-and-safety-act-2011">Queensland workplace laws</a>. He called upon the Queensland <a href="https://www.oir.qld.gov.au/">Office of Industrial Relations</a> to consider prosecutions against Ardent Leisure. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/killed-in-the-line-of-work-duties-we-need-to-fix-dangerous-loopholes-in-health-and-safety-laws-107355">Killed in the line of work duties: we need to fix dangerous loopholes in health and safety laws</a>
</strong>
</em>
</p>
<hr>
<p>The office administers the <a href="https://www.worksafe.qld.gov.au/laws-and-compliance/workplace-health-and-safety-laws/laws-and-legislation/work-health-and-safety-act-2011">Work Health and Safety Act 2011</a> and works with the work health and safety prosecutor, a new office in existence since March last year.</p>
<p>These workplace laws are designed to protect all people who fall under a duty of care in and around workplaces, whether they are employees or visitors. </p>
<p>Under Queensland’s act, an offence has been committed if steps are not taken to avoid a significant risk from occurring, or if there is a failure to comply with regulatory requirements. </p>
<p>Where a death occurs or such a risk persists, a corporation can be fined up to A$3 million. An individual who was responsible for allowing, say, a lethal risk to persist – either directly or recklessly – can be fined up to $600,000, or face up to five years imprisonment. </p>
<p>The prosecution has to prove its case using the same standard used in all criminal matters where intention or reckless indifference are relevant – guilt beyond reasonable doubt.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=441&fit=crop&dpr=1 600w, https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=441&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=441&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=555&fit=crop&dpr=1 754w, https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=555&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/317016/original/file-20200225-24701-iio78r.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=555&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">The inquest said Dreamworld hadn’t done a proper risk assessment on the ride in 30 years.</span>
<span class="attribution"><span class="source">Dan Peled/AAP</span></span>
</figcaption>
</figure>
<h2>Why manslaughter charges aren’t effective</h2>
<p>More serious criminal consequences under Queensland’s new <a href="https://www.worksafe.qld.gov.au/laws-and-compliance/compliance-and-enforcement/penalties/industrial-manslaughter-offence">“industrial manslaughter” laws</a> cannot be pursued in the theme park tragedy. </p>
<p>Queensland’s parliament passed the laws in 2017 in the wake of the deaths of <a href="https://www.ohsa.com.au/6692-2/">two workers at the Eagle Farm racecourse</a> in 2016. They were also no doubt influenced by the Dreamworld deaths. These laws make it a lot easier to sentence company directors to prison for deaths in the workplace, even in the absence of their direct culpability.</p>
<p>But the laws cannot apply retrospectively. Moreover, the provisions only apply to the deaths of workers, not visitors to a workplace.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/why-industrial-manslaughter-laws-are-unlikely-to-save-lives-in-the-workplace-97459">Why industrial manslaughter laws are unlikely to save lives in the workplace</a>
</strong>
</em>
</p>
<hr>
<p>Even so, a <a href="https://theconversation.com/why-industrial-manslaughter-laws-are-unlikely-to-save-lives-in-the-workplace-97459">key problem</a> for those promoting industrial manslaughter laws is the lack of evidence that scapegoating delinquent company executives after a tragic event is likely to eliminate dangerous practices. </p>
<p>Putting in place considerable resources for accident prevention is a far better use of resources than finding fault and sending people to short terms of imprisonment months, if not years, after a tragedy takes place. </p>
<p>Indeed, in the Dreamworld inquest, McDougall recommended significant changes to theme park management including more stringent, regular inspection of rides.</p>
<p>Another important deterrent against such senseless tragedies occurring again is the genuine heartache of the executives at the top of any irresponsible company, and the threat of reputational damage to them personally and their company brand. </p>
<p>That reminder needs to be sheeted home to all companies and businesses, not just those providing leisure and theme park entertainment. There is an important role in this regard for those who train business leaders and those who regulate their affairs.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1232146953657634817"}"></div></p>
<p>No amount of legal redress, of course, can bring back loved ones. We can only hope every company or business in this country that has visitors in its care will learn there is no price that can be put on their safety and security. </p>
<p>Whether or not prosecutions proceed and are successful in the Dreamworld tragedy, every one of the coroner’s recommendations must be implemented immediately. We owe that much to those who grieve today.</p><img src="https://counter.theconversation.com/content/132364/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Rick Sarre receives funding from the Criminology Research Council and is a member of the State Council (SA) of the ALP.</span></em></p>The coroner said he ‘reasonably suspected’ Dreamworld owner Ardent Leisure had committed an offence under Queensland workplace laws, which could lead to a fine up to A$3 million.Rick Sarre, Professor of Law and Criminal Justice, University of South AustraliaLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1294322020-01-12T20:14:28Z2020-01-12T20:14:28ZWhat employers need to know: the legal risk of asking staff to work in smokey air<p>Amid thick bushfire smoke in cities including Canberra and Melbourne, employers need to consider their legal obligations.</p>
<p>Some have directed their workers not to turn up in order to avoid to occupational health and safety risks. Among them is the Commonwealth <a href="https://www.abc.net.au/news/2020-01-05/nsw-fires-blanket-canberra-in-thick-smoke/11841546">department of home affairs</a> which last week asked most of its staff to stay away from its Canberra headquarters for 48 hours.</p>
<p>Other employers want to know where they stand.</p>
<hr>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=176&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=176&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=176&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=221&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=221&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309183/original/file-20200109-138653-1g0zb74.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=221&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption"></span>
</figcaption>
</figure>
<hr>
<p>Each state and territory has its own occupational health and safety laws.<br>
However most line up with the so-called Model Act, intended to harmonise state laws.</p>
<p>Under section 17 it imposes on employers a duty to, so far as is <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/whasa2011218/s17.html">reasonably practicable</a>, ensure health and safety by eliminating or minimising risks. </p>
<p>This employer’s duty applies not only to its employees, but also to other types of workers including independent contractors.</p>
<h2>Meaning of ‘reasonably practicable"</h2>
<p>Under the section 18 of the Model Act, “reasonably practicable” <a href="http://classic.austlii.edu.au/au/legis/nsw/consol_act/whasa2011218/s18.html">means</a> </p>
<blockquote>
<p>that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters</p>
</blockquote>
<p>By themselves, these words aren’t much of a guide, so the Act includes examples of “relevant matters”, among them:</p>
<ul>
<li><p>the likelihood of a hazard or risk occurring</p></li>
<li><p>the degree of harm that might result</p></li>
<li><p>what the employer knows or ought reasonably know about the hazard or risk, and ways of eliminating or minimising hazard or risk</p></li>
<li><p>the availability and suitability of ways to eliminate or reduce hazard or risk</p></li>
<li><p>the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk</p></li>
</ul>
<h2>Meaning of 'likelihood’</h2>
<p>Employers should make themselves aware of the risk of an air quality hazard.<br>
This can be achieved by checking the most up to date air quality index in the location on an environment protection authority website:</p>
<blockquote>
<p><a href="https://www.epa.nsw.gov.au/">NSW</a></p>
<p><a href="https://www.epa.vic.gov.au/for-community/airwatch">Victoria</a></p>
<p><a href="https://apps.des.qld.gov.au/air-quality/">Queensland</a></p>
<p><a href="https://www.epa.sa.gov.au/data_and_publications/air_quality_monitoring">South Australia</a></p>
<p><a href="https://www.der.wa.gov.au/your-environment/air/air-quality-index">Western Australia</a></p>
<p><a href="https://epa.tas.gov.au/epa/air/monitoring-air-pollution/real-time-air-quality-data-for-tasmania">Tasmania</a></p>
<p><a href="http://ntepa.webhop.net/NTEPA/Default.ltr.aspx">Northern Territory</a></p>
<p><a href="https://www.health.act.gov.au/about-our-health-system/population-health/environmental-monitoring/monitoring-and-regulating-air">Australian Capital Territory</a></p>
</blockquote>
<p>Workers who work outdoors are more likely to be subject to harmful effects of bushfire smoke than indoor workers. </p>
<p>They are more likely to experience irritation to their airways, nose and eyes. </p>
<p>They might also experience low visibility which might make their work more dangerous. </p>
<p>The machines they operate could also be impacted by the smoke and dust in a way which would make operating them more dangerous.</p>
<p>Special measures should be taken to protect workers who work outdoors, such as providing them with face masks or rescheduling their work.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/ENk1gWbsbL4?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Smoke emissions from the Australian bushfires from 1 December 2019 to 4 January 2020.</span></figcaption>
</figure>
<h2>Meaning of ‘degree of harm’</h2>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=900&fit=crop&dpr=1 600w, https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=900&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=900&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=1131&fit=crop&dpr=1 754w, https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=1131&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/309230/original/file-20200109-80107-gc35i9.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=1131&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Asthma suffers might be at greater risk.</span>
</figcaption>
</figure>
<p>It is certainly arguable the likelihood of harm for indoor workers is much lower, especially if the air quality in their workplace is the same or even better than the air quality in their homes. </p>
<p>Employers should have up-to-date information about the health of their workers, especially those workers who have pre-existing conditions that might predispose them to harm from smoke. </p>
<p>Among these would be workers who have asthma or other respiratory disorders.</p>
<p>Special steps should be taken to protect them, taking into account their pre-existing conditions.</p>
<h2>Meaning of ‘reasonably ought to know’</h2>
<p>Employers should be checking up-to-date information on an environment protection authority website and on the website of <a href="https://www.safeworkaustralia.gov.au/media-centre/news/bushfires-and-air-pollution">Safe Work Australia</a>.</p>
<p>It’s very likely law enforcers will presume the information on these websites constitute information the employer ought to have known in determining the appropriate action to take. </p>
<p>For example, it would be difficult for an employer to argue they didn’t know P2 rated face masks should be provided to workers when the Safe Work Australia website <a href="https://www.safeworkaustralia.gov.au/media-centre/news/bushfires-and-air-pollution">specifically mentions them</a> as an appropriate way of eliminating or reducing air quality hazards.</p>
<h2>Meaning of ‘availability of ways to reduce risk’</h2>
<p>Safe Work Australia says employers should have in place <a href="https://www.safeworkaustralia.gov.au/topic/weather#working-in-air-pollution">measures</a> to manage the risks to health and safety of working outdoors when air quality is reduced, including:</p>
<ul>
<li><p>working indoors (where possible)</p></li>
<li><p>rescheduling outdoor work until conditions improve</p></li>
<li><p>ensuring buildings and equipment are functioning correctly and have not been affected by dust or debris</p></li>
<li><p>cleaning dust and debris off outdoor surfaces</p></li>
<li><p>providing personal protective equipment such as eye protection and correctly fitted P2-rated face masks.</p></li>
</ul>
<h2>Meaning of ‘cost of minimising hazard’</h2>
<p>The cost of elimination or minimising hazard will be higher for some measures than others. </p>
<p>For example, it might cost more to direct workers to stay home than to provide face masks. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/our-buildings-arent-made-to-keep-out-bushfire-smoke-heres-what-you-can-do-129367">Our buildings aren't made to keep out bushfire smoke. Here's what you can do</a>
</strong>
</em>
</p>
<hr>
<p>These costs need to be weighed up against the likelihood and degree of potential harm. </p>
<p>If the likelihood and degree of harm is high, it’s unlikely law enforcers will be particularly sympathetic to arguments about cost.</p><img src="https://counter.theconversation.com/content/129432/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth Shi does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Employers obligations are set out clearly. What’s important is what they “know or reasonably ought to know”.Elizabeth Shi, Senior Lecturer, Graduate School of Business and Law, RMIT UniversityLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1273002019-11-19T14:05:07Z2019-11-19T14:05:07ZWhy saying ‘OK boomer’ at work is considered age discrimination – but millennial put-downs aren’t<figure><img src="https://images.theconversation.com/files/302281/original/file-20191118-66921-g49omo.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">OK, boomer... </span> <span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/male-company-employee-feeling-tired-listening-1512367268">Motortion Films/Shutterstock.com</a></span></figcaption></figure><p>The phrase “OK boomer” <a href="https://www.npr.org/2019/11/18/779783608/-okboomer-vs-okmillennial-workplace-nightmare-or-just-a-meme">has become a catch-all</a> put-down that Generation Zers and young millennials have been using to dismiss retrograde arguments made by baby boomers, the generation of Americans who are <a href="https://www.careerplanner.com/Career-Articles/Generations.cfm">currently 55 to 73 years old</a>.</p>
<p>Though it <a href="https://knowyourmeme.com/memes/ok-boomer">originated online</a> and primarily is <a href="https://www.buzzfeed.com/farrahpenn/ok-boomer-jokes-that-prove-gen-zers-are-funnny">fueling memes</a>, <a href="https://twitter.com/hashtag/okboomer?lang=en">Twitter feuds</a> and a <a href="https://www.washingtonpost.com/outlook/2019/11/13/problem-with-ok-boomer/">flurry of commentary</a>, it has begun migrating to real life. A New Zealand lawmaker <a href="https://www.nbcnews.com/news/world/new-zealand-lawmaker-says-ok-boomer-during-parliament-speech-about-n1078066">lobbed the insult</a> at an older legislator who had dismissed her argument about climate change. </p>
<p>As the term enters our everyday vocabulary, HR professionals, <a href="https://law.uoregon.edu/explore/elizabeth-tippett">employment law specialists like me</a> and even <a href="https://www.nytimes.com/2020/01/15/us/supreme-court-age-bias.html">Supreme Court justices</a> now must ponder the question: What happens if people start saying “OK boomer” at work?</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/ipe9WxUfh7w?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
</figure>
<h2>Evidence of discrimination</h2>
<p>A lot of the internet fights over “OK boomer” revolve around whether the phrase is offensive or not. But when you’re talking about the workplace, offensiveness is not the primary problem. The bigger issue is that the insult is age-related.</p>
<p>Workers aged 40 and older are protected by a federal statute called the <a href="https://www.dol.gov/general/topic/discrimination/agedisc">Age Discrimination in Employment Act</a>, which prohibits harassment and discrimination on the basis of age. </p>
<p>Comments that relate to a worker’s age are a problem because older workers often face negative employment decisions, like a layoff or being passed over for promotion. The only way to tell whether a decision like that is tainted by age discrimination is the surrounding context: comments and behavior by managers and coworkers. </p>
<p>If a manager said “OK boomer” to an older worker’s presentation at a meeting, that would make management seem biased. Even if that manager simply tolerated a joke made by someone else, it would suggest the boss was in on it.</p>
<p>Companies also risk age-based harassment claims. Saying “OK boomer” one time does not legally qualify as harassing behavior. But frequent comments about someone’s age – for example, <a href="https://law.justia.com/cases/federal/appellate-courts/ca1/17-1191/17-1191-2018-08-01.html">calling a colleague “old” and “slow”</a>, <a href="https://scholar.google.com/scholar_case?case=7763968087195450711">“old fart”</a> or <a href="https://scholar.google.com/scholar_case?case=5555043418652493543&q=%22age-based+harassment%22&hl=en&as_sdt=2006">even “pops”</a> – can become harassment over time.</p>
<h2>Gen Xers are covered too</h2>
<p>And it doesn’t matter if the target isn’t even a boomer.</p>
<p>Gen Xers were born <a href="https://www.kasasa.com/articles/generations/gen-x-gen-y-gen-z">around</a> 1965 to 1979. That makes them older than 40 and covered by federal age discrimination law. </p>
<p>Yes, I get that the comment is <a href="https://www.nbcnews.com/better/lifestyle/ok-boomer-diving-generation-what-does-it-mean-ncna1077261">a retort to “unwoke” elders</a> who cannot be reasoned with. The problem is that the phrase is intended as a put-down that is based, at least partly, on age. If you say it at work, you’re essentially saying, “You’re old and therefore irrelevant.” </p>
<p>Lumping Gen Xers into a category with even older workers doesn’t make it better. Either way, you are commenting on their age.</p>
<p><div data-react-class="Tweet" data-react-props="{"tweetId":"1194357940007796737"}"></div></p>
<h2>Funny or not</h2>
<p>I recently watched some of the <a href="https://www.youtube.com/watch?v=NarX9usjj0Q">“OK boomer” TikTok compilations</a>. </p>
<p>A lot of them were quite funny, like the hairdresser imitating a customer who criticized her tattoos as unprofessional. She responded, “OK boomer,” while appearing to lop off a huge swath of the customer’s hair.</p>
<p>When I was an employment lawyer, I heard tons of hilarious stories of things people said in the workplace. But that’s the point: The story ended with a lawyer on the other end of the phone. </p>
<p>One of the <a href="https://scholar.google.com/scholar_case?case=2149108217300957983&q=reeves+v.+sanderson&hl=en&as_sdt=2006">most famous</a> age-discrimination cases – which made its way all the way up to the Supreme Court – involved a manager who described an employee as “so old he must have come over on the Mayflower.” </p>
<p>In other words, “it was just a joke” is an awful legal defense. </p>
<h2>Tit for tat</h2>
<p>To millennials who have suffered through years of being called “snowflakes” by their elders, protests of age discrimination can seem a bit rich. Why didn’t HR ban all those <a href="https://jeffjbutler.com/2019/04/12/where-did-the-avocado-toast-millennial-stereotype-come-from/">millennial jokes about avocado toast</a>? </p>
<p>The Age Discrimination in Employment Act only kicks in for workers who are 40 or older, which means millennials aren’t covered. For now.</p>
<p>The oldest millennials will turn 40 later this year. So fear not, the millennial jokes may eventually become a legal problem for companies as these workers age.</p>
<p>Also, a few states, <a href="https://dhr.ny.gov/sites/default/files/pdf/age-discrimination.pdf">including New York</a>, ban age discrimination for all workers over 18, and employers in those states probably should have done something about the millennial jokes.</p>
<figure class="align-center ">
<img alt="" src="https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=397&fit=crop&dpr=1 600w, https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=397&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=397&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=499&fit=crop&dpr=1 754w, https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=499&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/302470/original/file-20191119-111690-qw4ly8.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=499&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px">
<figcaption>
<span class="caption">Millennials tired of their elders making fun of their love for avocado toast are out of luck.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/image-photo/healthy-avocado-toasts-breakfast-lunch-rye-1105043105?src=343fd847-5577-4d34-8228-a345bef4f2e9-1-23">By Nelli Syrotynska/Shutterstock.com</a></span>
</figcaption>
</figure>
<h2>Why older workers need protections</h2>
<p>Boomers might seem really powerful, and yes, they might be your boss’s boss’s boss. </p>
<p>But older workers are more vulnerable than they seem. Older workers are expensive – by the time they’ve worked their way up the corporate ladder, their generous salaries start to weigh on the balance sheet. And management <a href="https://heinonline.org/HOL/LandingPage?handle=hein.journals/emplrght16&div=6&id=&page=">may have trouble</a> envisioning spectacular growth and innovative ideas from them years into the future, even if they are ready and willing to deliver.</p>
<p>That’s why Congress thought it was important to extend protections to those workers. It wanted employers to treat them <a href="https://scholar.google.com/scholar_case?case=7232159241469569502">as individuals</a> who shouldn’t be dismissed out of hand because of their age.</p>
<p>And in many ways, <a href="https://www.usatoday.com/story/news/nation/2019/10/31/why-gen-z-millennials-using-ok-boomer-baby-boomers/4107782002/">that’s what young people seem to want</a> as well: a little respect for what they bring to the table. After all, that meme didn’t make itself.</p>
<p><em>This is an updated version of an article originally published on Nov. 19, 2019.</em></p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Expertise in your inbox. Sign up for The Conversation’s newsletter and get a digest of academic takes on today’s news, every day.</a></em> ]</p><img src="https://counter.theconversation.com/content/127300/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>An employment law expert explains why you shouldn’t use an age-related insult at work to demean an older colleague – an issue even the Supreme Court is now talking about.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1258012019-10-24T04:53:31Z2019-10-24T04:53:31ZNew house rules: landmark ruling could trigger other workers’ compensation claims from reality TV stars<p>This week, the Seven Network was <a href="https://www.theguardian.com/media/2019/oct/22/house-rules-channel-seven-ordered-to-pay-compensation-to-reality-show-contestant">found liable</a> to pay a workers’ compensation claim brought by Nicole Prince, one of the contestants on its renovation reality television show, <a href="https://www.imdb.com/title/tt2931524/?ref_=ttep_ep_tt">House Rules</a>. </p>
<p>Prince suffered a major depressive episode, and symptoms consistent with post traumatic stress disorder after she and her partner were cast as the “mean girls” in the 2017 season of the series. </p>
<p>She provided convincing evidence program directors manipulated series content to ensure the pair appeared to be hypercritical of other contestants, drawing not only their hostility, but also an avalanche of hateful social media comment. (Channel Seven <a href="https://www.wcc.nsw.gov.au/__data/assets/pdf_file/0008/563048/2558-19-Prince-COD-SOR.pdf">refused</a> to remove the offensive and often violent posts.) </p>
<p>The case before the <a href="https://www.wcc.nsw.gov.au/__data/assets/pdf_file/0008/563048/2558-19-Prince-COD-SOR.pdf">New South Wales Compensation Commission</a> concerned a statutory claim under the <a href="https://www.legislation.nsw.gov.au/#/view/act/1987/70/whole">Workers Compensation Act 1987 (NSW)</a> for medical expenses. </p>
<p>However it raises the prospect of potential common law claims by other reality TV “stars” who have been treated badly. In the wake of the ruling, fellow reality TV contestants including <a href="https://www.news.com.au/entertainment/tv/reality-tv/mafs-stars-are-considering-legal-action-following-landmark-seven-ruling/news-story/4c547bacaf2195a45ebafb6118da15b9">Tracey Jewel</a> from Married at First Sight have floated the possibility of legal action. </p>
<h2>On the books</h2>
<p>Prince’s success depended upon a finding she was an employee according to the <a href="https://www.fairwork.gov.au/how-we-will-help/templates-and-guides/fact-sheets/rights-and-obligations/independent-contractors-and-employees">common law test</a> that defines employment. The difference between an employee and independent contractor is based on multiple factors and has developed with court decisions over time. To make a determination, courts look at each case and the overall “vibe” of the relationship between the parties.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=583&fit=crop&dpr=1 600w, https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=583&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=583&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=733&fit=crop&dpr=1 754w, https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=733&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/298456/original/file-20191024-119423-u7eksu.png?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=733&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Contestants Fiona Taylor and Nicole Prince (right) were portrayed as villains on the renovation reality show.</span>
<span class="attribution"><span class="source">Channel 7</span></span>
</figcaption>
</figure>
<p>Employees are also owed duties of care under <a href="https://en.wikipedia.org/wiki/Tort">tort law</a> (which determines civil liability) and <a href="https://en.wikipedia.org/wiki/Contract">contract</a> law (which governs agreements). </p>
<p>An employer who exposes an employee to unnecessary risk of foreseeable harm can also be held liable at common law for damages that can extend to lost earnings. In this case, Prince gave evidence she had been unable to find employment following her disastrous experience on the show.</p>
<p>The prospect for these kinds of claims has long been <a href="https://scholarship.shu.edu/sports_entertainment/vol23/iss1/5/">recognised</a> in the United States, where claims by contestants (or their surviving family members) have been brought against television production companies, although rarely successfully. </p>
<p>In 2017, the US reality dating show Bachelor in Paradise was <a href="https://www.vulture.com/2017/07/bachelor-in-paradise-timeline-of-allegations.html">suspended</a> for nine days pending allegations of sexual misconduct (later dismissed). Two contestants on the show had engaged in sexual activity under the influence of alcohol. </p>
<p>The scandal <a href="http://www.cardozoaelj.com/2019/02/10/corporate-responsibility-reality-show-participants/">raised the question</a> of when reality TV producers should intervene to protect contestants. </p>
<p>The sticking point in the US cases has been the ability of networks to disclaim employer status in their written contracts with contestants. In Australia, however, employment status cannot be avoided by contractual disclaimers if the court decides the relationship bears the hallmarks of employment, established in a number of <a href="http://eresources.hcourt.gov.au/showCase/2001/HCA/44">High Court cases</a>. </p>
<h2>House Rules</h2>
<p>The Workers Compensation Commission found Prince was engaged for remuneration ($500 a week plus $500 in allowances) to serve Seven’s business. Seven exerted control over when she worked, what she wore, and which tools she used.</p>
<p>As a featured personality, Prince was an integral part of their business. She was required to provide exclusive service, and give up her normal occupation, during filming.</p>
<p>Finally, Prince bore none of the entrepreneurial risks that would be involved were she engaged in her own business.</p>
<p>These factors were said to “overwhelmingly” indicate she was employed by Seven.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=424&fit=crop&dpr=1 600w, https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=424&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=424&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=532&fit=crop&dpr=1 754w, https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=532&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/298457/original/file-20191024-119405-1h3nnal.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=532&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">The original House Rules cast.</span>
<span class="attribution"><span class="source">IMDB</span></span>
</figcaption>
</figure>
<p>Once it was established she was an employee it was a straightforward matter to find her psychiatric illness was a consequence of her employment. While the Commission made no findings as to fault (statutory Workers Compensation claims are not fault-based), certain observations made in the reasons suggest Prince may well be able to demonstrate the harm she suffered was foreseeable. </p>
<p>The commission <a href="https://www.wcc.nsw.gov.au/__data/assets/pdf_file/0008/563048/2558-19-Prince-COD-SOR.pdf">concluded</a> Seven deliberately manipulated her on-screen portrayal as a nasty person, and was made aware of the torrent of abuse she was receiving as a consequence. It refused to take any steps to ameliorate the harm, no doubt because this kind of conflict and outrage is a calculated part of such shows’ audience appeal.</p>
<p><div data-react-class="InstagramEmbed" data-react-props="{"url":"https://www.instagram.com/p/BUoXRj1hkLS","accessToken":"127105130696839|b4b75090c9688d81dfd245afe6052f20"}"></div></p>
<h2>A legal landmark</h2>
<p>This appears to be the first successful claim of this nature in Australia. </p>
<p>It’s possible claims brought by contestants who are physically harmed could be settled by the insurers.</p>
<p>This one, involving the infliction of psychological harm, opens a wide door to more potential claims from contestants who naively expect to be able to present themselves as their usual loveable selves on the television, and end up as social pariahs. </p>
<p>The amount Prince is to be compensated has not yet been determined. But in 2011, a NSW woman who suffered psychiatric illness and was unable work after she had been subjected to workplace bullying and harassment was <a href="https://www.smh.com.au/national/nsw/theres-more-to-reveal-says-orkopoulos-whistleblower-20110602-1fizc.html">awarded $438,000</a>.</p>
<figure class="align-right zoomable">
<a href="https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=401&fit=crop&dpr=1 600w, https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=401&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=401&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=503&fit=crop&dpr=1 754w, https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=503&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/298458/original/file-20191024-119477-q71bwt.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=503&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Reality television stars are frequently subject to online abuse.</span>
<span class="attribution"><a class="source" href="https://www.shutterstock.com/download/success?u=http%3A%2F%2Fdownload.shutterstock.com%2Fgatekeeper%2FW3siZSI6MTU3MTkxMjgyMywiYyI6Il9waG90b19zZXNzaW9uX2lkIiwiZGMiOiJpZGxfNjExNDE4ODMzIiwiayI6InBob3RvLzYxMTQxODgzMy9odWdlLmpwZyIsIm0iOjEsImQiOiJzaHV0dGVyc3RvY2stbWVkaWEifSwicVB5SEpQWXJNSGRveEwwQUdYUVFqVEZ6MDZVIl0%2Fshutterstock_611418833.jpg&pi=41133566&m=611418833">www.shutterstock.com</a></span>
</figcaption>
</figure>
<p>This case also raises some very interesting questions about whether reality TV contestants might bring other claims related to employment. Minimum wages, perhaps? Or superannuation entitlements? </p>
<p>Prior to the Prince decision, the Law Society of NSW published a <a href="https://lsj.com.au/articles/the-legal-implications-of-reality-television/">tongue-in-cheek piece</a> that flagged a shopping list of potential legal claims reality stars might pursue. </p>
<p>Those claims may be far-fetched, but the <a href="https://www.wcc.nsw.gov.au/__data/assets/pdf_file/0008/563048/2558-19-Prince-COD-SOR.pdf">refusal</a> of Seven’s insurer to pay Prince’s compensation claim – which set this legal precedent in motion – has opened up a proverbial can of worms for reality television producers.</p><img src="https://counter.theconversation.com/content/125801/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Joellen Riley Munton does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>A landmark ruling that ordered the Seven Network pay a reality TV star compensation could have far-reaching implications for other productions and workplaces.Joellen Riley Munton, Professor of Law, University of Technology SydneyLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1219202019-09-25T12:12:31Z2019-09-25T12:12:31ZWhat Amazon, Walmart employees risk when they use the workplace for activism<figure><img src="https://images.theconversation.com/files/293846/original/file-20190924-51457-1ksz51c.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">Amazon workers in Seattle walked off the job on Sept. 20 in a climate strike. </span> <span class="attribution"><span class="source">(AP Photo/Elaine Thompson</span></span></figcaption></figure><p>It has somehow become sort of normal to use the workplace to protest social issues unrelated to the job itself. This was something almost unheard of even five years ago.</p>
<p>The latest example came on Sept. 20 as more than 1,000 Amazon employees <a href="https://edition.cnn.com/2019/09/20/tech/amazon-climate-strike-global-tech/index.html">staged a walkout</a> over the retailer’s “inaction” on climate change. In recent months, there has also been <a href="https://www.wlbt.com/2019/08/08/few-walmart-employees-heed-call-walkout-over-gun-sales/">unrest</a> among Walmart employees over gun sales and protests by <a href="https://www.nytimes.com/2018/04/04/technology/google-letter-ceo-pentagon-project.html">Google</a> and <a href="https://gizmodo.com/employees-protest-microsoft-bid-for-huge-military-contr-1829740921">Microsoft</a> workers over military use of their software. And of course, there’s <a href="https://www.nytimes.com/2019/02/15/sports/nfl-colin-kaepernick-protests-timeline.html">Colin Kaepernick</a> and other professional athletes who used the field – a football player’s office – to protest racialized police violence.</p>
<p>The workplace used to be the very last place you would want to bring attention to social issues, however important. That’s because the office or factory isn’t a democracy where activism is protected. To a <a href="https://law.uoregon.edu/explore/elizabeth-tippett">workplace scholar</a> like me, what’s really interesting is how employees are increasingly willing to undertake this risky form of protest – and how employers are adapting.</p>
<h2>The risks of workplace activism</h2>
<p>As a legal matter, there is a big difference between marching in the street – for example, as part of a climate protest – and walking off the job as part of that same protest.</p>
<p>Let’s say you have the day off, and you decide to join a march through the streets. The government can’t just arrest you or banish you to another country. Your <a href="https://www.loc.gov/law/help/peaceful-assembly/us.php">activism is protected</a> under the First Amendment.</p>
<p>Those rights fall away the minute you cross the threshold into your job. Unless the government’s your boss, you stop being a citizen and become a worker subject to your employer’s rule. There, you live in something of a “dictatorship, in which bosses govern in ways that are largely unaccountable to those who are governed,” as philosopher Elizabeth Anderson <a href="https://press.princeton.edu/titles/10938.html">puts it</a>. </p>
<figure>
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<figcaption><span class="caption">Philosopher Elizabeth Anderson explains why the workplace is like a dictatorship.</span></figcaption>
</figure>
<p>You may think calling the office a dictatorship is an exaggeration, but in reality it’s not. Like a real dictatorship, you can be exiled at any moment for virtually any infraction. The <a href="https://www.bls.gov/news.release/union2.nr0.htm">vast majority</a> of workers in the United States are employed “at-will,” which literally means you can be terminated at any time, without notice, for any reason or no reason at all. </p>
<p>As a lawyer, I have written countless “at-will” provisions into contracts, and it’s not even strictly necessary. Courts will presume that you are “at-will” unless you <a href="https://scholar.google.com/scholar_case?case=9927157615128210379&q=employment-at-will&hl=en&as_sdt=2006">present</a> a mountain of evidence showing the employer intended to offer real job security. </p>
<p>If companies can fire you for any reason, that reason might include stirring the pot. And employers tend to respond to social activism the way the “Seinfeld” character George Costanza reacted when his friend Elaine tried to invite his fiance to the opera: by freaking out. </p>
<p>“Everybody knows,” he shouts, “that you gotta keep the worlds apart!” </p>
<p>Work is for work. Save your activism for evenings and weekends.</p>
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<iframe width="440" height="260" src="https://www.youtube.com/embed/uPG3YMcSvzo?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">In ‘Seinfeld,’ Costanza panics when his social spheres converge, threatening his independence.</span></figcaption>
</figure>
<h2>Weak workplace protections</h2>
<p>Lawmakers and courts have long known that employers can abuse their power to fire workers. Over many decades, the law has developed to specify certain circumstances in which employers cannot retaliate against workers. </p>
<p>But the key here is that those exceptions are limited, and the law generally lags several years – or sometimes decades – behind what is happening in the workplace.</p>
<p>The law prohibits employers from firing workers where they are trying to advance or protect other key employment rights – like trying to <a href="https://www.nlrb.gov/rights-we-protect/whats-law/employees/i-am-not-represented-union/your-rights-during-union-organizing">organize a union</a> or filing a <a href="https://www.nytimes.com/2019/03/08/sports/womens-soccer-team-lawsuit-gender-discrimination.html">gender discrimination lawsuit</a>. Courts will also protect workers who really had no choice but to act against their employer’s preferences – like when they are summoned for <a href="https://scholar.google.com/scholar_case?case=13046597298312614812">jury duty</a>, or when their boss asks them to engage in <a href="https://scholar.google.com/scholar_case?case=6106113470135055631">illegal conduct</a>.</p>
<p>Even whistleblowers who unearth illegal conduct have to walk a tightrope if they want to keep their jobs. For example, the anonymous national security whistleblower who complained about Trump’s alleged call with the Ukrainian president would have lost legal protection – and faced potential <a href="https://eu.usatoday.com/story/news/nation/2017/05/17/chelsea-manning-prison-release/101783186/">criminal prosecution</a> – if he or she went straight to the press. The whistleblower could <a href="https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1152&context=lawfacpub">maintain protection</a> only by complaining confidentially within authorized government channels.</p>
<figure>
<iframe width="440" height="260" src="https://www.youtube.com/embed/HAAjZyJWsc0?wmode=transparent&start=0" frameborder="0" allowfullscreen=""></iframe>
<figcaption><span class="caption">Law professor Richard Moberly discusses national security whistleblowers.</span></figcaption>
</figure>
<h2>Activists out on a limb</h2>
<p>Today’s social activists don’t really qualify as whistleblowers, though. </p>
<p>Whistleblower protections are designed to protect those who disclose important information about misconduct to corporate heads or government authorities. Like a sports referee, true whistleblowers are pointing out a violation that others overlooked. Social activists in the workplace, by contrast, lend their voice to a known cause.</p>
<p>In that sense, social activists are perhaps most closely analogous to employees who object to work assignments on religious grounds – a pharmacist who <a href="https://law.justia.com/cases/federal/appellate-courts/ca7/06-2831/06-2831-2007-05-02-nonprecedential-disposition-2011-02-25.html">refuses to fill</a> prescriptions for religious reasons, for example. But those workers are on much firmer legal ground, because Title VII of the Civil Rights Act <a href="https://scholar.google.com/scholar_case?case=10710673220333405680&q=eeoc+v+abercrombie+%26+fitch+stores+inc&hl=en&as_sdt=2006">requires</a> employers to provide some accommodation for workers’ religious beliefs. </p>
<p>By contrast, employers can and do punish workers for activism they consider <a href="https://scholar.google.com/scholar_case?case=750170895929306990">too disruptive</a> or <a href="https://scholar.google.com/scholar_case?case=9748700253424262526">distracting</a>.</p>
<p>That’s why Walmart <a href="https://gizmodo.com/walmart-retaliates-against-worker-who-urged-walk-out-ov-1837012050">apparently shut down</a> network access for the worker who called for the gun-related walkout. It’s why Google issued a new policy, <a href="https://about.google/community-guidelines/">essentially telling</a> workers to focus on their jobs; why <a href="https://www.newsweek.com/us-soccer-bans-kneeling-during-anthem-donald-trump-wants-nfl-671291">U.S. Soccer</a> imposed a ban on kneeling during the national anthem; and why Colin Kaepernick still has <a href="https://fivethirtyeight.com/features/yes-its-strange-that-colin-kaepernick-doesnt-have-a-deal-yet/">no contract</a>. </p>
<p>Perhaps more surprising, though, is the ways in which companies have proved responsive to employee activism. Amazon let workers take <a href="https://www.wired.com/story/amazon-walkout-climate-change/">vacation time</a> to walk off the job and issued a <a href="https://edition.cnn.com/2019/09/19/tech/amazon-climate-pledge/index.html">carbon pledge</a>. Google declined to <a href="https://thenextweb.com/artificial-intelligence/2018/06/01/google-announces-it-wont-renew-military-ai-contract/">renew</a> a contract providing artificial intelligence to the military. Even Walmart <a href="https://corporate.walmart.com/newsroom/2019/09/03/mcmillon-to-associates-our-next-steps-in-response-to-the-tragedies-in-el-paso-and-southaven">discontinued</a> some of its ammunition sales and is urging lawmakers to pass gun control legislation.</p>
<p>In a competitive labor market, it’s almost as if allowing employee protest has become a workplace perk of sorts, a special privilege companies selectively dispense for workers – software programmers in particular – who are hard to replace. Tellingly, far fewer store workers at Walmart walked off the job than salaried workers at Amazon’s headquarters. They may have sensed that Walmart would call their bluff.</p>
<p>But like all privileges dispensed by authoritarian rulers, the freedom to protest can be retracted at will. I would not expect it to survive the next downturn. </p>
<p>[ <em><a href="https://theconversation.com/us/newsletters?utm_source=TCUS&utm_medium=inline-link&utm_campaign=newsletter-text&utm_content=expertise">Expertise in your inbox. Sign up for The Conversation’s newsletter and get a digest of academic takes on today’s news, every day.</a></em> ]</p><img src="https://counter.theconversation.com/content/121920/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>Elizabeth C. Tippett previously worked as a employment lawyer at Wilson Sonsini Goodrich & Rosati, where she represented technology companies.</span></em></p>There’s no First Amendment in the workplace, which leaves worker activists at the whim of their employers.Elizabeth C. Tippett, Associate Professor, School of Law, University of OregonLicensed as Creative Commons – attribution, no derivatives.tag:theconversation.com,2011:article/1221302019-09-01T19:48:58Z2019-09-01T19:48:58ZFlexible working, the neglected congestion-busting solution for our cities<figure><img src="https://images.theconversation.com/files/290018/original/file-20190829-184196-16zkxh5.jpg?ixlib=rb-1.1.0&rect=0%2C0%2C5130%2C2748&q=45&auto=format&w=496&fit=clip" /><figcaption><span class="caption">If more of us were free to work from home, fewer of us would be stuck in traffic.</span> <span class="attribution"><span class="source">Daria Chichkareva, fkigali/Shutterstock</span></span></figcaption></figure><p><a href="https://www.sciencedirect.com/topics/social-sciences/traffic-congestion">Traffic congestion</a> is one of the most significant challenges facing our cities. Melbourne’s population is growing by around <a href="https://www.abs.gov.au/ausstats/abs@.nsf/PrimaryMainFeatures/3218.0?OpenDocument">325 people a day</a> and is <a href="https://www.smh.com.au/politics/federal/booming-melbourne-to-become-nation-s-largest-city-by-2026-20190327-p5186v.html">projected to overtake Sydney’s</a> within a decade. <a href="https://www.aaa.asn.au/wp-content/uploads/2018/10/AAA-Congestion-Report-2018-FINAL.pdf">Identified as the most congested city in the country</a>, this was a factor in Melbourne <a href="https://www.theaustralian.com.au/nation/nation/melbourne-loses-title-of-most-liveable-city/news-story/f5145850143b5801db36c75ed7d73133">losing its seven-year grip on the “world’s most liveable city” title</a> last year.</p>
<p>One obvious solution to traffic congestion, caused mostly by workers commuting to jobs in the city centre during peak hours, might appear to be building more, or bigger, roads. But a less obvious answer, and potentially a more cost-effective one, might be to increase flexible working arrangements. </p>
<p><a href="https://www.sciencedirect.com/science/article/pii/S0040162518301549">Our research</a> has looked into ways to ease congestion by reducing the need for travel in congested areas in the first place. It shows city workers definitely have an appetite for flexible work hours and practices. </p>
<p>However, many (36%) still can’t or don’t work remotely. Those who do work remotely do so for a small fraction of the week – 1.1 days on average – even though a high percentage of their work tasks can be done anywhere.</p>
<h2>More roads don’t solve the problem</h2>
<p>Traditionally, congestion has simply been accepted as the starting point, with infrastructure being built to accommodate it. However, as a report on <a href="https://www.nber.org/papers/w15376">US research</a> findings about so-called induced demand <a href="https://www.wired.com/2014/06/wuwt-traffic-induced-demand/">explains</a>: </p>
<blockquote>
<p>If you expand people’s ability to travel, they will do it more. […] Making driving easier means that people take more trips in the car than they otherwise would.</p>
</blockquote>
<p>This increase in travel uses up any extra capacity improved infrastructure might bring. As a result, <a href="https://www.nber.org/papers/w15376">traffic levels and congestion remain constant</a>. </p>
<p>A <a href="https://www.infrastructureaustralia.gov.au/sites/default/files/2019-08/Urban%20Transport%20Crowding%20and%20Congestion.pdf">2019 report</a> from Infrastructure Australia observes that the huge number of road and rail projects in Sydney and Melbourne, both current and planned, will not prevent crippling congestion by 2031.</p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/do-more-roads-really-mean-less-congestion-for-commuters-39508">Do more roads really mean less congestion for commuters?</a>
</strong>
</em>
</p>
<hr>
<h2>What did the flexible working study find?</h2>
<p>This issue was the motivation for our study into alternative ways to ease congestion. It identified flexible working as one possible solution. </p>
<p>The term <a href="https://www.fairwork.gov.au/employee-entitlements/flexibility-in-the-workplace/flexible-working-arrangements">flexible working</a> refers to arrangements that enable employees to adjust the number of hours they work, the pattern of those hours, or where they work. Flexible working has risen significantly in recent years, with many potential <a href="https://fortune.com/2019/02/20/four-day-work-week-research-benefits/">benefits</a> for both <a href="https://www.recruitment-international.com.au/blog/2018/06/73-percent-of-australian-employees-value-flexible-working-hays-reveals">employees</a> and <a href="https://employsure.com.au/blog/rewarding-retaining-employees-flexible-work-arrangements/">employers</a>. Yet few studies have examined its potential to reduce traffic congestion. </p>
<hr>
<p>
<em>
<strong>
Read more:
<a href="https://theconversation.com/working-four-day-weeks-for-five-days-pay-research-shows-it-pays-off-100375">Working four-day weeks for five days' pay? Research shows it pays off</a>
</strong>
</em>
</p>
<hr>
<p>For our <a href="https://www.sciencedirect.com/science/article/pii/S0040162518301549">study</a>, we surveyed 263 city workers from ten of Melbourne’s biggest employers. We asked them about their commuting habits, existing flexible working arrangements, attitudes toward flexible working and the nature of their work tasks. </p>
<p>We found 64% of workers were already taking advantage of some sort of flexible working arrangements that allowed them to work from a remote location, usually at home, an average of 1.1 days a week. And 83% of them either “liked” or “loved” the ability to do this. </p>
<p>Only 2% said none of their work could be performed from an alternative location. A majority of participants, 58%, indicated they could do at least half their work duties out of the office. Some 30% of the workers indicated 80% or more of their work duties could be performed remotely.</p>
<figure class="align-center zoomable">
<a href="https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&fit=clip" srcset="https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=408&fit=crop&dpr=1 600w, https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=408&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=408&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=513&fit=crop&dpr=1 754w, https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=513&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/288868/original/file-20190821-170951-a5jci6.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=513&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">Breakdown of participants in flexible working survey.</span>
<span class="attribution"><a class="source" href="https://www.sciencedirect.com/science/article/pii/S0040162518301549">Author's research</a>, <span class="license">Author provided</span></span>
</figcaption>
</figure>
<p>Technology enables these flexible working opportunities. Laptops, smartphones, high-speed internet and cloud access were highlighted as the must-haves for remote working. </p>
<p>Many of us no longer need to travel to a fixed location to work because the tools of our labour are located there. The tools of our labour are now in our back pockets or work satchels. </p>
<h2>Finland shows what’s possible</h2>
<p>Urban congestion is a growing problem worldwide. Today, <a href="https://www.un.org/development/desa/en/news/population/2018-revision-of-world-urbanization-prospects.html">55% of people live in urban areas, a figure expected to reach 68% by 2050</a>. The use of motor vehicles is also growing rapidly. </p>
<p>But access to flexible working is growing around the world too. </p>
<p>Finland, a <a href="https://www.bbc.com/worklife/article/20190807-why-finland-leads-the-world-in-flexible-work">pioneer of flexible working practices</a>, recently adopted a new <a href="https://nordiclaw.fi/new-working-hours-act-of-finland-enters-into-force-1-january-2020/">Working Hours Act</a>. It will give a majority of full-time employees the right to decide when and where they work for at least half of their working hours. </p>
<p>A similar flexible working bill was introduced to the UK Parliament in July by Conservative MP Helen Whately. She <a href="https://www.bbc.com/news/business-49003413">said</a>:</p>
<blockquote>
<p>The 40-hour, five-day working week made sense in an era of single-earner households and stay-at-home mums, but it no longer reflects the reality of how many modern families want to live their lives.</p>
</blockquote>
<p>Our <a href="https://www.sciencedirect.com/science/article/pii/S0040162518301549">evidence from Melbourne suggests</a> the appetite for, and availability of, flexible working will continue to increase as more people do it and more millennials take up leadership roles. </p>
<figure class="align-left zoomable">
<a href="https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=1000&fit=clip"><img alt="" src="https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=237&fit=clip" srcset="https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=600&h=614&fit=crop&dpr=1 600w, https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=600&h=614&fit=crop&dpr=2 1200w, https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=600&h=614&fit=crop&dpr=3 1800w, https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=45&auto=format&w=754&h=772&fit=crop&dpr=1 754w, https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=30&auto=format&w=754&h=772&fit=crop&dpr=2 1508w, https://images.theconversation.com/files/290005/original/file-20190829-184234-ircnwd.jpg?ixlib=rb-1.1.0&q=15&auto=format&w=754&h=772&fit=crop&dpr=3 2262w" sizes="(min-width: 1466px) 754px, (max-width: 599px) 100vw, (min-width: 600px) 600px, 237px"></a>
<figcaption>
<span class="caption">A small reduction in peak-hour commuter numbers could make the difference between being able to squeeze onto a train or not.</span>
<span class="attribution"><a class="source" href="https://www.flickr.com/photos/14027144@N00/94288580">Runs With Scissors/Flickr</a>, <a class="license" href="http://creativecommons.org/licenses/by-nc-nd/4.0/">CC BY-NC-ND</a></span>
</figcaption>
</figure>
<p>If the 64% of workers who now work remotely 1.1 days a week increased this to five days a fortnight, this could cut the number of daily commuters to Melbourne from <a href="https://www.bitre.gov.au/publications/2011/files/report_125.pdf">572,000</a> to 440,500 a day. If the remaining 36% of workers were also able to work remotely 50% of the time, daily commuter numbers would fall further to around 337,500, a total reduction of 41%. </p>
<p>Even much smaller reductions in commuter numbers could have significant impacts on congestion. An <a href="https://www.parliament.nsw.gov.au/committees/DBAssets/InquirySubmission/Summary/52831/Sub13%20NRMA.pdf">NRMA submission</a> that advocated flexible working hours and practices to a 2013 NSW parliamentary inquiry noted: </p>
<blockquote>
<p>As a rule of thumb, when traffic on congested roads reduces by 5%, traffic speeds increase 50% (even if this only means going from 20 to 30km/h) […] A small reduction in the amount of passengers during peak hours can sometimes make the difference between being able to squeeze onto a bus or train, or not.</p>
</blockquote>
<p>In this era of growing urban congestion, an increase in flexible working practices appears to have serious potential for easing the strain on our roads and transport networks. Isn’t it about time we asked ourselves if we could all be a bit more flexible?</p><img src="https://counter.theconversation.com/content/122130/count.gif" alt="The Conversation" width="1" height="1" />
<p class="fine-print"><em><span>John L Hopkins does not work for, consult, own shares in or receive funding from any company or organisation that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.</span></em></p>Two-thirds of surveyed workers work from home one day a week on average, but could do at least half their work out of the workplace. If they commuted less often, congestion could be greatly reduced.John L Hopkins, Theme Leader (Future Urban Mobility), Smart Cities Research Institute, Swinburne University of TechnologyLicensed as Creative Commons – attribution, no derivatives.