COSH Worker-Engaged Co-Enforcement Tool Kit

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A Work-In-Progress Tool Kit for Organizers

Government safety agencies have always lacked sufficient tools and staffing to ensure workers’ right to safe, healthy working conditions.  But equally important: government agencies also lack first-hand information about conditions that workers have and the trust that is needed for workers to feel confident reporting dangers.    

Worker-Engaged Collaborations for Strategic Enforcement taps the critical first-hand knowledge of workers and the experience and trusted relationships of unions, COSH, and other worker organization to coordinate with enforcement agencies and maximize the impact of legal protections

National COSH created a Worker-Engaged Collaborations for Strategic Enforcement Working Group to learn, document and share models of worker-engaged enforcement collaborations and create a toolkit that can be used to support worker organizations seeking to engage in these efforts.

This initial tool kit draws on long-time and recent experiences of local COSH groups working partnership with labor, community and public health partners: SoCal COSH and many partners in LA County, CA are playing a leadership role in “Workplace based public health councils of workers”.  MassCOSH is working with a Brockton Worker Center and the Brockton Health Department in creating a worker safety initiative sub-committee* of  the Mayor’s COVID Health Equity Task Force in Brockton, MA.

The Working Group is also benefiting from lessons documented by Rutgers School of Management and Labor Relations.

This tool kit is a work in progress!  The sections currently include:

  1. Overview of worker-engaged collaborations for safety and health enforcement
  2. Building effective Worker Safety Councils to engage in collaborative enforcement and maximize employer compliance 
  3. Collaborations for enforcement with cities/towns and local boards of health

1) OVERVIEW OF WORKER-ENGAGED COLLABORATIONS FOR SAFETY AND HEALTH ENFORCEMENT

WHAT is Worker-engaged Collaborations for Safety and Health Enforcement:  

Worker-engaged collaborations for enforcement involves workers and worker organizations - COSH, unions, worker centers and other nonprofit organizations - in strengthening employer compliance by playing a critical role in the enforcement process.

Occupational safety and health laws are one important tool in promoting worker health and safety.  But government enforcement agencies lack sufficient personnel and the trust and relationships among the most vulnerable workers to be as effective as possible.  What worker-based organizations offer:

  • Reach and build trust with the most vulnerable workers (nonEnglish speaking, immigrants, workers of color, temporary workers)
  • Worker training and leadership development
  • Can educate government investigators about workplace conditions 

Engaging workers and worker organizations as leaders in strengthening enforcement is a valuable tool to improving working conditions but also a way to build power and a voice for workers   

HOW to engage in successful collaborative enforcement:

  1. All parties must recognize and appreciate the unique capabilities of each participant:  
    • Workers:  Have firsthand knowledge of conditions, work process and culture Remain in the workplace to ensure compliance Have the greatest ability to build trust and encourage peers to come forward
    • Worker organizations Can reach and build trust with vulnerable workers Effective at worker training and leadership development Can educate government investigators about workplace conditions, convey cultural barriers and opportunities of impacted workers 
    • Government agencies Empowered to legally enforce: gather documentation, investigate, cite and enact penalties
  2. Establish an effective system of information exchange
    • Workers and worker organizations need to know: How the enforcement process works; What information and documentation is most helpful for a strong case; Once a case is filed, regular updates on the status of the case
    • Government agencies need to know: Weaknesses that traditional enforcement approaches may have in building trust/confidence of vulnerable populations and ways to overcome them  
  3. Develop an agreement among the parties on how to communicate and how decisions will be made
    • Hold an opening conversation to clarify roles, responsibilities, decision-making; Discuss transparency of different interests and power dynamics;
    • From government’s perspective, worker organization understands the constraints of the agency; From worker organization’s perspective, government agency understands the need for workers to have information about the status of the case, and be respected as a partner.
    • Establish an agreement about how meetings will be run, who will facilitate, prioritizing people with strong facilitation skills.  
  4. Set up a strong external worker engagement, organizing and planning system/ structure
    • Collaborations for enforcement must be done with an “Inside / Outside approach” - and not rely solely on government.
    • Worker organizations should create a committee with workers and organization representatives to ensure the collaborative enforcement effort is a worker-driven process, to support organizing and other means of pressuring employers beyond legal measures;  
    • Meetings outside those with the government will be needed to develop worker-focused priorities and to keep pressure on the government to do its job

 

OPTIONS: Formal vs. Informal Collaborations 

Collaborations for enforcement committees or other structures can be formal or informal in a range of ways:

  • Established by local ordinance or state legislation Example 1 - Los Angeles Board of Supervisors:  Los Angeles County Board of Supervisors enacted a proposal to establish worker-led Health Councils, trained by COSH and partners, to monitor workplace conditions and report to the LA Board of Health. Example 2 - Brockton, MA: Tolle will add Example 3: Somerville, MA City Ordinance Somerville City Council passed an ordinance strengthening wage theft protections and creating a Wage Theft Advisory Committee comprised of worker-based organizations, a business representative, City and City Council representatives to oversee it.   Working in collaboration with a local worker center, the Advisory Committee  can help a worker navigate the new ordinance and ask the city to use one of its new tools, such as denying the employer a permit or license.  
  • Established by mutual agreement between government enforcement agency and worker organizations Example - California Strategic Enforcement Partnership:   California Strategic Enforcement Partnership, established by the California Labor Commissioner’s Office to strengthen anti-wage theft enforcement and encourage greater compliance by collaborating with worker organizations.  In this initiative, the partners spent time identifying roles and responsibilities and ways they would communicate to make the partnership effective.  Example: San Franciso Collaborative Enforcement - See California Collaborative Enforcement Initiatives that Facilitate Worker Organizing, p8 - 17   
  • Informal collaborative enforcement  

Example - New England COSH and OSHA:  New England COSH groups met quarterly with OSHA to identify ways to strengthen enforcement efforts, without any formal agreement between the parties.  In many cases, creative and useful ideas would be developed, but because there was no accountability, many proposals were not followed through.  Example - US Department of Labor with Chelsea Collaborative/worker center and Greater Boston Legal Services: As a result of strong relationships developed over time, when US Department of Labor was investigating a company with egregious violations and abusive behavior, they were able to engage a worker center and legal services program - with each playing critical, unique, and complementary roles.  As a result the case was highly successful and workers received far greater back wages than they would have otherwise. 

 

An article by coenforcement expert Janice Fine notes that most worker center and labor leaders she interviewed raised concerns about keeping collaborative enforcement informal:

  • “Agencies would be less likely to routinely involve the organizations and would proceed instead on an ad-hoc, case-by-case manner’” 
  • Agencies “would be less officially committed to providing groups with information, resources, a seat at the table and an ongoing role in monitoring and en-forcement, they would fall back on entrenched practices;” 
  • Relationships would not be institutionalized; and
  • Organizations would be less effective at altering “the relations of power in their sectors” and “create a culture of compliance among employers.”

 

CHALLENGES Collaborative enforcement based on relationships When worker groups develop successful relationships only with an individual enforcement agency point person, they run the risk of the collaboration ending if that person leaves.

2) BUILDING EFFECTIVE WORKER SAFETY COUNCIL TO ENGAGE IN COLLABORATIVE ENFORCEMENT AND MAXIMIZE EMPLOYER COMPLIANCE

To ensure that workers and worker organizations identify their priorities and maintain some degree of independence, it is crucial to establish an external worker council before engaging in collaborative enforcement.

A Worker Safety Council brings together workers and worker organization reps to develop, implement and oversee the entire worker-engaged collaborative enforcement effort. 

One important role of the Worker Safety Council will be to promote the development of Worker Committees which bring together workers from the same workplace and/or industry to foster worker leadership and encourage monitoring and organizing at individual workplaces and across industries.  Workers who serve on their own committees will be ideal candidates to become involved in the Worker Safety Council.

WHO should serve on the Worker Safety Council

Worker Safety Councils should include workers that reflect the populations most in need of strong enforcement - workers of color, immigrants as well as other lower wage workers in hazardous occupations.  Collaborative enforcement committees would likely also include representatives from worker-based organizations.

Identifying workers often begins with organizations coming together to identify worker leaders who have been impacted by unsafe conditions and who have an interest in becoming involved in making changes in workplaces and in enforcement agencies.

Often Worker Safety Councils begin with just organization representatives - but keep in mind that once meetings get started in a certain way and initial decisions get made, it can be difficult to change the culture and incorporate the voices of workers.

HOW to set up the Worker Safety Council

Setting up a Worker Safety Council that includes workers who have a range of literacy and English speaking ability requires patience, planning and resources.  

Recently a Somerville, MA worker coalition made plans to develop a multiethnic worker committee and identified several essential elements including:

  • Interpretation for all attendees - Ideally simultaneous interpretation from English to whatever other languages were present and vica versa so that all voices were valued.
  • Translation of all documents
  • Slowing down the pace of the meeting to give time for people of different levels to absorb the information
  • Having one (or two) facilitators who is/are bilingual and versed in inclusive meetings - and who uses techniques such as going around the room and smaller groups/paired discussions to maximize participation.
  • Day care

WHAT should the Worker Safety Council do

There are some ingredients from the creation of effective union health and safety committees that can be useful in applying to other types of OSH Councils. Some specific steps should include:

  1. Council development

Engage in discussions and make decisions regarding: - How will the committee be run -   One or two facilitators?  For what length of time;  Criteria for who facilitates?   Other roles:  Notetaking - How will committee members communicate between meetings - listserv, what’s app, etc. - How often will the committee meet - If the committee has speakers of languages other than English, how will interpretation and translation be done, paid for - How and how often will new members be incorporated/oriented to ensure inclusion of fresh ideas - How often will the committee do an evaluation of its progress, strengths, areas to include (no less than twice per year is strongly suggested).  Gather input in a confidential format in advance of an evaluation meeting, discuss the findings and make recommendations with concrete action items to improve the effectiveness of the committee  

  1. Planning and organizing: A. Gather and review information/data: Gather input through worker surveys, focus groups and conversations, and review any existing data on worker health and safety issues in the region (local, state or region).  Through this review and discussions, the committee can identify:

B.  Determine priorities and what actions enforcement agency can take Based on the issues raised, determine what priorities you would want to bring to the enforcement agency and proposed solutions/procedures

Gather information about what has been done in other parts of the country and potential objections that might be raised.  Speak with former enforcement agency staff.    National COSH Advisors, National Employment Law Project staff and other members of the Protecting Workers Alliance may have insights and can provide assistance with trouble-shooting.

3) COLLABORATIONS FOR ENFORCEMENT WITH CITIES/TOWNS, BOARDS OF HEALTH

Introduction

Traditional safety and health agencies like OSHA are not only ones that impact workplaces during an event such as an infectious disease outbreak. Workers and their advocates need to reach out beyond the traditional safety and health world in order to better protect workers and their families. Too many employers have failed to adequately protect workers from contracting the virus, resulting in sickness and sometimes death.

Role of the Cities/towns and local boards of health

Under state laws, local (county and city) health departments have many responsibilities within the community including restaurant food safety inspections, environmental health inspections for public swimming pools and radon, lead poisoning prevention, sexually transmitted disease programs and infectious disease outbreaks. This means they have major responsibility for      investigating and controlling CoVid 19 in a community. However, few public health officials are educated about assessing workplace environments or working within the context of labor management relationships.  Workers and their advocates are an asset to health officials. They can provide accurate descriptions about work practices that influence disease spread. They need to know the health department will listen to them, answer their questions and take needed action.

Responsibilities for reporting of COVID cases

The federal government requires all testing sites to report both positive and negative COVID-19 test results to the appropriate state or local public health authority based on a person’s residence. Large employers  conducting tests on site (i.e point of care testing under medical supervision) should also have to report test results to public health. While a state has all test results, the local public health department only receives tests for persons living in that community.  This can make identifying workplace outbreaks challenging. While local health departments do communicate with each other and the state, they may need more information to identify workplace outbreaks

In some  states, employers must report any positive employee or contractor cases they are aware of. If a worker calls in sick with COVID or tests positive in an employer sponsored testing program, the employer, or the lab it uses, reports the case to public health. In other states employers may have to report outbreaks, as defined by the state. Some employers may not be complying with reporting requirements.  Without this information, health departments are unable to intervene in a workplace to help ensure the employer is following relevant guidelines, including contact tracing, quarantines, and worker protection. Some industries may have different employer reporting rules. 

Find out from your state health department if employers must report positive CoVID cases or outbreaks. If employer sponsored testing results are not being reported or don’t have to be, advocate for enforcement or lobby to make reporting mandated under state public health laws. There are many potential allies to achieve this: state public health associations, state legislature health committee members, healthcare and worker advocacy groups including unions, workers who have contracted CoVID 19 at work and family members of workers who have died from contracting CoVID 19.

WHAT:  CAN LOCAL MUNICIPALITIES DO

Investigate and shut down companies: Respond to non-compliance with state requirements: In most instances health departments have legal authority to shut down businesses if they are non-compliant with state requirements. States have guidance for different industries to open safely, such as restaurants and schools. Sometimes municipal health departments also have their own guidance which may be more restrictive. For example in Maryland, Baltimore and Montgomery County have stricter requirements for occupancy in restaurants, retail and other businesses and allows for fewer people to gather than the state does.  Find out about the guidance and enforcement in your state by going to your state and/or local government health department web site. Enact measures to protect workers and the public:

A number of municipalities have enacted ordinances that require specific measures to promote worker and public safety, and/or to protect the ability of workers to speak up without retaliation.

Examples include: - Los Angeles County, CA - Establish worker-led public health councilsProtection against retaliation - New Bedford, MA - Emergency order to prevent spread of COVID-19 in industrial facilities

- Santa Clara, CA - Order for retail that requires owners to document using a form that they are complying with safety measures. Seattle, WA:  Sick and Safe time for Gig Workers (6/1/20); Forbid employers from requesting doctor’s note for time off (4/8/20)

- New Jersey: Executive order language for collaborative enforcement measure (not yet enacted)

HOW: INITIAL STEPS TO ENGAGING WITH BOARDS OF HEALTH  

Build coalitions: 

Bring together organizations and individuals who are interested in preventing workplace Covid spread and ensuring better interventions. Examples of coalition partners are Committees (or Coalitions) for Occupational Safety & Health (COSH), Worker Centers, local Labor federations/councils and state public health associations. These groups can help workers with navigating how to address Covid at work as well as coordinating multiple pressure points to get the attention of, and establish communication with, local health departments.

Example:  New Labor advocacy campaign for collaborative enforcement ordinance  

Connect through unions representing health department employees: Many health  department employees are unionized. Call your local labor council/federation to ask about who might represent the local health department employees and contact their union to request a meeting with a representative (i.e. shop steward).  

Work with local government representatives to pass a local ordinance: County and city legislatures usually have committees that deal with issues.  Standing committees for the legislature should include health, or health may within a committee such as human services or public services. Since the major responsibilities for CoVid response and enforcement are given to local governments, city or county legislators could help pressure health departments to improve communications and collaboration with workers and their advocates, and to enact measures that strengthen worker protections.

Your local government may have formed a CoVid task force or work group. Find out if, or how, worker issues are represented. If not, propose forming a sub group addressing CoVid in workplaces that ensures a direct line of communication with local health officials.

Intake and complaints process

Work with the local board of health to develop procedures for gathering complaints. Determine what capacity the board of health has to do intake and in what languages.  It is likely that advocacy will be needed to bring more resources to the department and to ensure that workers with languages spoken in the community can participate in the process.  

Recognizing that worker-based organizations are likely to have greater trust with more vulnerable workers, develop a parallel intake process led by worker-based groups.  Advocate for resources to support this effort in the community.  Rutgers Labor Enforcement Toolbox has developed recommendations for intake procedures and forms:

Intake Process 

• Be clear about the agency’s role, timelines, and enforcement process as well as what’s expected of the complainant. 

• Provide translation and interpretation services. 

• Be explicit about retaliation policy and immigration status protections.

 • Provide comprehensive workplace rights information and referrals to community-based organizations and other agencies. 

• Allow third-party complaints. 

• Do not put the burden on the complainant to know which law was allegedly violated or how much they are owed; that’s the agency’s job. 

Complaint/Intake Forms

 • Use simple language. 

• Do not require every question on the form be answered.

• Where information on the form is missing, obtain it in the intake interview. 

• Include space on the form where the complainant can identify an organization with whom the agency can share information. 

Below are examples of intake and complaints forms:

Example: New Jersey COVID worker complaint form

Example:  Manhattan District Attorney Wage Theft intake form

Offer training for health department employees: Department of Health employees don’t have expertise on workplace conditions or laws and regulations. Worker advocates can offer training on a variety of topics to increase understanding and awareness about workplaces in the community, ways to effectively curb transmission and protect worker rights.

Topics to offer include:

  • Legal aspects of worker protection – worker rights and employer obligations
  • Basics of ventilation and infectious disease spread
  • Latest science of CoVid 19 spread protection – integrating into the work setting
  • CoVid 19 data collection: its role in identifying priorities and potential outbreaks

Join the local Medical Reserve Corps: The Medical Reserve Corps (MRC) is a national network of volunteers who serve to improve the health and safety of their communities. During the CoVid pandemic, thousands of MRC volunteers are helping overwhelmed local health departments with contact tracing, follow up calls to those in quarantine, answering questions from the community and data entry. Having worker advocates be a part of the local MRC can open a door to direct communication to local health departments. Retired worker advocates and union members would be good MRC volunteers who could approach health department officials about improving connection and collaboration around workplace outbreaks.  You can find out more about being a MRC volunteer at https://mrc.hhs.gov/HomePage.

Remember: there are many talented, dedicated professionals in your public health departments – they are being overwhelmed. Don’t give up if the initial reaction is resistance. They are dealing with a dangerous outbreak with limited resources. They need to see you as one of those resources to assist in controlling CoVid spread in your communities.

Resources:

City of New Bedford emergency regulations on positive case reporting and preventing spread of CoVid 19: https://www.newbedford-ma.gov/health-department/covid-19-news-2/

National Employment Law Project (NELP)  “Protecting Worker Safety & Health in the COVID Crisis: A State & Local Model Policy Response”: https://www.nelp.org/publication/protecting-worker-safety-health-covid-crisis-state-local-model-policy-response/

National COSH Network Worker and Boards (departments) of Health Safety and Health Council toolkit:

State Public Health Associations: Find your state public health association at https://apha.org/apha-communities/affiliates/state-and-regional-public-health-associations

CDC CoVid test reporting rules: https://www.cdc.gov/coronavirus/2019-ncov/lab/reporting-lab-data.html#who-must-report