Protecting Essential Workers
Philadelphia, PA
Population: 500,000 - 1,000,000 | Government type: City | Topic: Worker Protections
Photo: Jessica Griffin / Philadelphia Inquirer
The POLICY
The Essential Workers Protection Act, sponsored by Philadelphia Councilmember At-Large Helen Gym, is a first-in-the-nation anti-retaliation law to protect essential workers who raise concerns about the existence and enforcement of public health mandates in their workplace. It amends the Philadelphia Code, adding a new chapter entitled “Employee Protections in Connection with Covid-19 Emergency Health Order.”
The city council unanimously passed the Essential Workers Protection Act in 2020. The law makes it illegal for employers to fire, retaliate against or discriminate against any worker who reports an employers’ non-compliance with emergency health orders and regulations, or who refuses to work under unsafe conditions that are caused by non-compliance.
Workers can report violations directly to the Office of Labor. The law specifies that the employee must make their report in a manner of “good faith” intended to remedy the workplace conditions. Employers are prohibited from firing employees who disclose details that “may evidence” unsafe working conditions, or who refuse to work in conditions they believe to be unsafe, for 90 days after the complaint is issued.
Employers are subject to a maximum fine of up to $2000 per violation of the ordinance, considered a “class III” offense. The law also establishes a private right of action, which allows an employee to sue the employer for a violation. If the employee wins their suit, they may be eligible for reinstatement, backpay, compensatory damages and attorneys’ fees and costs. The act applies to all businesses operating in the city, regardless of size. The Office of Labor was simultaneously made a permanent office through the City Charter (via ballot) and had its enforcement unit expanded through a budget and staffing allotment to help increase education and compliance efforts.
The bill was co-sponsored by a majority of city council members. It benefited from the support of the mayor and a close working relationship with the eventual Office of Labor, which had established processes to enact and enforce advance scheduling laws and a Domestic Worker Bill of Rights in previous years. Council staff from supporting offices worked together on business-labor roundtables that engaged stakeholders across different sectors.
The City of Philadelphia established a permanent Office of Labor in Spring 2020 and in a tight budget year, expanded the Office’s funding to accommodate two new staff positions for worker outreach and education.
Collaborative Governance
Philadelphia built off a growing labor and working rights coalition that had been developed through its Fair Work Week campaign in 2018. Continued partnership between traditional labor unions, unrepresented workers (domestic workers, hotel workers, servers in the restaurant industry), and justice organizations that prioritized Black and Brown voices needed care and organizing to maintain relationships and support lobbying and public education around the law.
Worker town halls were important public education tools to show how employers often ignored public health orders, especially once such orders impacted staffing or triggered protections and rights such as paid leave. Labor unions organized rallies throughout the Covid-19 pandemic to highlight concerns and share experiences of workers in the city sanitation department, prisons, public schools, nursing homes, health care facilities,the transit department, and many others who were made sick, lost income, or lost their jobs through no fault of their own. Councilmember Gym hosted business-labor roundtables with stakeholders to ensure that amendment lobbying occurred within a broader group of stakeholders.
This law was driven by the experiences of grocery store workers, transit drivers, delivery workers, nursing home workers, and many others who risked their lives during the pandemic to keep others fed, cared for, and mobile. These essential workers are on the front lines and often have little choice or say in their working conditions. Together, they proved to be a formidable force in educating legislative bodies about how public health orders actually work on the ground, and how employers often ignore them at great consequence to employees.
Emphasis on equity
Essential workers are overwhelmingly likely to be people of color, women, and low-paid. Many are non-union and work for some of the largest corporations in the nation with minimal labor protections. During the Covid-19 crisis, it became clear that many workers were facing situations where their employers violated public health mandates—whether knowingly or not—to maintain staffing in workplaces that have often been the hardest hit by the pandemic. While many higher-paid managerial staff were allowed to work remotely, Black, brown, and immigrant workers made up the bulk of those who were called in and forced to choose between their jobs and their safety. Examples include employers calling in workers who had tested positive for Covid-19 or who were required to quarantine, as well as employers who demonstrated refusal to provide appropriate PPE materials, a lack of appropriate sanitation practices, a lack of enforcement around mask-wearing, etc.
The Essential Workers Protection Act recognizes that the creation of safe and healthy workplaces requires a collaborative effort between front line workers and management. The law expands workers' ability to protect themselves, their co-workers, their family members, and their customers, by allowing them a voice in the establishment and maintenance of safe and healthy workplace environments.
The law also offers much-needed support and backing, through the City’s Office of Labor, for those who lack union protections or are vulnerable to exploitation due to other circumstances. Employees may submit complaints anonymously for further investigation, but if the employee needs recourse as a result of retaliation, they must sue and are not entitled to anonymity.
Prior to the law, undocumented immigrants had limited options to advocate for a safe workplace. One particularly concerning example of this reality is employers who threaten to report undocumented individuals to Immigration and Customs Enforcement (ICE). The Essential Workers Protection Act provides enforcement mechanisms through fines, and through employees’ ability to sue via a third party. This gives employees more significant recourse and is a disincentive for employers to retaliate.
Analysis
Preemption: Anti-labor legislators in Harrisburg have a long history of threatening municipalities with preemption of local legislation that regulates employer policies and practices. Currently, municipalities can pass this and similar workplace legislation, but preemption legislation still typically looms. HB 331, which seeks a blanket preemption on all local labor laws passed since 2015 (when Philadelphia’s paid sick leave law was first enacted), has sat in Committee for years and has been re-introduced for consecutive sessions.
Local government dynamics: Philadelphia City Council is moderately progressive. There is momentum toward worker protections and the Council has begun pushing harder to include private right of action as a component in many labor bills (though this remains an area of continued work). Covid-19 undoubtedly created opportunities for the anti-retaliation law and a temporarily-expanded paid sick leave package. There were concerns raised by businesses, particularly restaurants, about screening for petty complaints.
Policy strength: This policy is moderate to strong, depending on whether there is a mechanism for private right of action and an enforcement arm for the policy. If your municipality has a labor office, it helps to work on a more robust education and outreach program for workers (during the Covid-19 pandemic, for example, local complaints of wage theft have spiked). Additionally, the council asked for the labor department to host a complaint hotline where people could report violations of the public health code. If there is no labor office, you can do something similar with your health commissioner. Allot budget line items for increased staffing or to establish worker education grants to community groups. Strengthen public health orders and jurisdiction for workplaces.
Last updated: January 19, 2021
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