Lindsay Ruck was just starting her Father’s Day brunch shift at the Cheesecake Factory in Chandler, Ariz., when her boss told her a co-worker had Covid-19. In between making bloody marys, Ruck shared the news with several of her colleagues, who’d been worrying about such a moment since the restaurant reopened the month before. At the end of Ruck’s shift, when she went to the back office to count her cash, her boss and another supervisor were waiting.
Her boss, the general manager, told her she wasn’t allowed to mention the coronavirus case to anyone, including fellow staff. The company was informing only the people who’d worked during the sick employee’s last shift, and, per Cheesecake higher-ups, even the information that any worker had tested positive was deemed private, Ruck recalls. Realizing she could be among those kept in the dark about the next sick colleague, she filed a complaint with the
“I don’t know what kind of risk I’m putting on my family,” says Ruck, who has young kids, plus an elderly mom nearby. She’s worked for the Cheesecake Factory for about 13 years but says it suddenly feels a lot tougher to trust that the company, which promises its staff “unlimited smiles,” will keep her safe.
In the past few months, U.S. businesses have been on a silencing spree. Hundreds of U.S. employers across a wide range of industries have told workers not to share information about Covid-19 cases or even raise concerns about the virus, or have retaliated against workers for doing those things, according to workplace complaints filed with the NLRB and the Occupational Safety and Health Administration (OSHA).
Workers at Amazon.com,
Amazon, McDonald’s, and Target dispute the allegations. REI says it doesn’t prohibit employees from, or punish them for, raising concerns or discussing their own health.
One complaint says trailer manufacturer Great Dane LP set as its policy “Don’t ask, don’t tell.” According to another complaint, plastics company
Teachers say they’re getting gag orders, too. At the end of July, as Florida prepared to resume in-person classroom teaching, the school district in Jacksonville’s home county of Duval emailed a warning to employees. Any social media posting that would “reflect badly” on the district’s reputation “may lead to disciplinary actions,” according to the email, later viewed by Businessweek. The school district says the email wasn’t meant to prevent employees from expressing views on reopening.
In many cases, workers say their bosses have cited employee privacy to justify the gags, including federal privacy laws such as the Health Insurance Portability and Accountability Act of 1996. But such laws don’t require companies to silence employees on safety matters. On the contrary, federal laws, including those that created OSHA and the NLRB, guarantee employees the right to communicate about and protest their job conditions. The federal bodies have failed to make companies obey the law. Many thousands of OSHA complaints about coronavirus safety issues have yielded citations against just
Employer crackdowns on free speech threaten to mask another
In mid-July, Irma Cruz returned to work at a McDonald’s in Gilroy, Calif., a couple of days after she’d called in sick with a cough and breathing trouble. Cruz, a single mother of three, says she would have stayed home longer except that her boss was refusing to pay for her sick days. When she got a headache, a co-worker gave her an Advil and a manager told her to stay on the job. The next day she learned she’d tested positive for Covid-19.
Cruz says she asked a supervisor to inform her co-workers, but the supervisor said not to worry, that the virus wasn’t contagious unless you spent more than 10 minutes with someone. The supervisor also said the news was “confidential,” Cruz recalls. Alarmed, she started calling and alerting co-workers herself. Then, she says, the supervisor called back, angrily berating her for disclosing her diagnosis.
Staffing was the problem, says Cruz, who filed a complaint with the county environmental health department. Previously, when a co-worker had reported contracting the virus, other employees refused to come to work. “I don’t want anyone else to get sick,” she says. “I don’t want that on my conscience.” In a statement relayed by
Health confidentiality is a common refrain when ordering workers not to discuss Covid. In a recording that
Wright, who was terminated in June, has filed complaints against Target with the NLRB and the
So far, companies have had little to fear from federal oversight. Trump-era NLRB rulings have expanded companies’
OSHA is supposed to protect whistleblowers against retaliation by their employers. The agency has a separate process for complaints in this vein, but it’s tough to win restitution that way. Workers have only 30 days to file and must rely on OSHA to decide to sue the companies on their behalf, which it rarely does. OSHA released data in August showing it’s closed more than 600 Covid-related whistleblower complaints against companies including Burger King, FedEx, General Motors, Halliburton, 7-Eleven, Tufts University, Walmart, and Warby Parker Retail.
On Aug. 14, the inspector general overseeing OSHA issued a report that found the agency had trouble finishing whistleblower investigations in a timely manner even before the pandemic, with the average investigation running for more than nine months. By the end of May, OSHA had received more than 1,600 whistleblower complaints related to Covid-19, and the report warned that worse delays would have consequences: “When OSHA fails to respond in a timely manner, it could leave workers to suffer.”
The Labor Department said in a statement that 86 Covid-related complaints have been settled and that OSHA is evaluating others for possible litigation. “OSHA will continue working around the clock to find ways to protect whistleblowers,” according to the department.
In early July, a supervisor at
By then, several employees had filed OSHA complaints about the Dunmore, Pa., plant, which supplies frozen meat products to military bases, nursing homes, and schools. One was the mechanic, who in April told the agency he didn’t feel safe because the company wasn’t telling them about Covid cases there. “About half the plant is out sick,” another worker wrote in April. “I’m scared to go to work every day.”
The mechanic says OSHA called him to say it would be sending Maid-Rite a letter instead of coming to inspect the plant, and that was the last he ever heard from the agency about his complaint. Letters between OSHA and Maid-Rite show OSHA told Maid-Rite in April to investigate worker allegations itself, and Maid-Rite wrote back saying that it was providing and mandating masks and that 6-foot distancing sometimes wasn’t feasible.
The next month, other employees at the plant filed a fresh OSHA complaint, alleging they were in harm’s way because of insufficient masks, excessive line speeds, and “elbow-to-elbow” close quarters. Later, in a sworn affidavit, another worker said he told the human resources department he’d tested positive for Covid, but HR told co-workers he hadn’t. Seven weeks after the May complaint, OSHA sent an inspector to Maid-Rite—but in a break from typical protocol, it gave the company a heads-up. “OSHA is here, so do everything right!” a supervisor told staff during the inspection, the mechanic later wrote in an affidavit. Fifteen minutes later, the supervisor returned to say “Never mind,” because the visit was over, the mechanic wrote: “As soon as OSHA left, everything went exactly back to the way it was.”
A couple weeks later, three workers
filed a rare lawsuit against OSHA to try to force action by the agency, which had rejected their plea to designate their case an “imminent danger.” In a July 31 hearing on the suit, an OSHA compliance officer, who’d worked for
Maid-Rite denies the allegations. “We run a clean, safe plant,” Executive Vice President Michael Bernstein said in a statement. “I am confident that the truth will prevail.” The Labor Department says OSHA began investigating the company on June 2, a process that can take six months. The government said in a filing that the inspector “reasonably determined that no imminent danger exists” at the plant.
Suing OSHA is one of a few Hail Marys labor activists are trying to employ. Another one is nuisance laws: Workers in
Amazon said in a statement that it tells everyone at its facilities when a co-worker tests positive for the coronavirus and that it’s spent more than $800 million on pandemic-related safety measures through June. In legal filings, the company has said that Chandler’s lawsuit is an attempt to “exploit the pandemic” and that the law requires workers to take such claims to OSHA.
The NLRB’s and OSHA’s authorities
In July, Colorado’s governor signed a similar law, making it illegal for companies to require workers to keep health concerns private or retaliate against workers who raise them. A few days after the Colorado bill signing, Virginia’s state safety board passed its own binding Covid regulations, including a ban on retaliation against workers who raise reasonable concerns at work or on social media and a requirement that companies notify co-workers and the state about coronavirus cases.
Other states should adopt such standards and could go further by alerting the public about companies with clusters of cases, says
For now, data-sharing has been among employees’ best defenses. While Amazon workers around the country
Jumpp left Amazon in July. Now she’s cleaning offices and Airbnbs instead. Still, she’s continued to spend her spare time on the phone and Facebook, collecting notifications Amazon has issued to individual warehouses and sharing the tally of sick workers with other Amazon employees and reporters. Besides informing people about the risks of Amazon’s facilities, she says, she’s trying to remind workers in its warehouses that they aren’t invisible and they don’t have to be silent. “I want them to know that there’s somebody counting,” Jumpp says. “There’s somebody keeping score for them.”
To contact the author of this story:
To contact the editor responsible for this story:
© 2020 Bloomberg L.P. All rights reserved. Used with permission.
To read more articles log in.