When you’re too sick to go to work, you shouldn’t be punished for taking time to recover. That simple truth has driven many cities to enact paid leave policies in recent years, guaranteeing paid sick days, or some kind of paid medical- and family-leave time, as standard workplace policy. But those vital policies are still not available to everyone, which is having wide public-health ramifications: Working families most in need of paid time off are both disproportionately poor and more vulnerable to illness, and it costs everyone collectively an extraordinary amount of time and money.
A case study of a children’s hospital in Cincinatti, a racially divided city hit hard by the recession, has linked respiratory health, concentrated poverty, and days spent in hospital. Over a period of several years, 2011 to 2016, young children spent a disproportionate amount of time not at home or in school, but confined to a hospital ward, isolated and struggling just to breathe. A periodic episode of hospitalization might seem like a small inconvenience, but over time, when spread across a community, the struggle to breathe can consume years of the lives of local children.
Comparing poor and wealthy census tracts in one urban area, researchers concluded, “If children from all of the county’s census tracts spent the same amount of time in the hospital each year as those from the most affluent tracts, approximately twenty-two child-years of hospitalization time would be prevented.”
With millions of parents across the country unable to take a single paid day off work to care for a sick child—and working poor women have the least access to paid leave time—the Cincinnati study illuminates a pervasive unmet medical need; not just an occasional day off with a cold, but the cost of monthly emergency-room visits, the strain of rushing from work to pick a child up when she’s discharged, missing a night shift to tend to a wheezing preschooler overnight. In neighborhoods plagued by tragically preventable illnesses, high concentrations of (perhaps unnecessary) hospitalization means the city pays one way or another: spending more to deal with poor households’ added medical needs, or investing in policies focused on prevention and management of chronic conditions. When illness is concentrated in a neighborhood, the accumulated medical burden depletes overall community wealth and erodes public health.
In this social context, paid sick days make sense as a basic policy that alleviates health and wealth inequality, by addressing the long-term demand for care in communities where poor health is rife, and ensuring that individual families dealing with a medical crisis that stems in part from poverty aren’t forced to lose income in order to recover efficiently and with dignity. According to one of the coauthors of the study, Andrew Beck, associate professor of pediatrics at the University of Cincinnati College of Medicine, “a sick leave policy, or a policy that more effectively allows parents [or] caregivers to ensure completion of preventive services for their children, could have an effect on disparities in hospitalization rates.”
That might mean parents have to spend less time shuttling to and from hospitals and clinics, or they can stay home with a child to stabilize her condition to avoid going to the hospital altogether. And paid time off from work means recurring respiratory problems don’t eat into a family’s grocery budget or make it harder to pay the heating bill.
Ohio currently has no mandatory paid-leave policies that cover the whole workforce, but Beck believes the findings echo his own experiences dealing with the costs of chronic childhood disease, noting that “anecdotally, as a clinician, I have seen the stresses of work interfere with a parent’s ability to remain at a child’s bedside and to have an easier transition home.”
His previous research on children’s hospitalization, he adds, suggested that in neighborhoods suffering high asthma rates, for their caregivers, “work schedules were often unpredictable or inflexible.” In the case of an emergency like an asthma attack, he adds, “At the least, this seemed to add stress to the family’s experience. At the most, it interfered with safe, healthy transitions from hospital to home.” On top of that, families absorb the long-term emotional and social strain of instability that surrounds lives of constant precarity.
A growing body of research shows that health, race, and place are intimately connected. The National Bureau of Economic Research’s recent research on families in New Jersey found that areas with dense concentrations of poverty, or of people of color, are also the places with the most toxic air. With so much of childhood development linked to environmental conditions, researchers found that “black ZIP codes are less healthy places for all children and that much of the gap in asthma rates between African-American and other children…is attributable to their place of residence.”
The trend reflects general health disparities across social divides, but also brutally exposes subsurface environmental racism. After generations of housing segregation relegating the poor to the places where the rest of society dumps its waste, toxins, and smog–these disproportionately black ZIP codes have accumulated extreme levels of air pollution. Ohio also reflects background factors that affirm the experiences of the children in the study: Overall, poverty correlates with poor-quality housing. Economic segregation through structural labor inequality relegates the poor, especially women and single mothers, to substandard jobs that lack benefits and flexibility. All these pressures make paid sick days that much rarer, and that much more needed, for working-class families.
These “social and structural determinants of health,” Beck explains, shape children’s lives, as well as their health. Environmental harms scar children’s lungs from the moment they’re brought home from the maternity ward, and drive them back to the hospital again and again in the coming years. Families bear the social and economic cost of being unhealthy, which breeds more illness, and they’re increasingly distanced from the quality of a family life that remains mostly the province of the privileged. A paid sick day won’t fix a life of everyday deprivation, but it can provide an invaluable moment of respite in a family’s lifelong struggle against a toxic environment.
The Ending Forced Arbitration of Sexual Harassment Act of 2017 now has 17 cosponsors in the Senate (including South Carolina Republican Lindsey Graham), while a parallel measure in the House, sponsored by Illinois Democrat Cheri Bustos, has 15 cosponsors.
Congressional efforts to end mandatory arbitration in harassment cases have begun to open up a necessary discussion with regard to the broad threat that these agreements pose to the rights of all workers. Unfortunately, the Supreme Court just weighed in on the wrong side of the debate. The high court ruled this week that companies may use arbitration clauses in employment contracts to bar workers from taking legal action to address mistreatment by employers.
Gillibrand was among the first to respond, noting that “This decision could have devastating consequences for workers, who might now be forced to choose between keeping their jobs and pursuing justice over discrimination or sexual harassment cases.”
The senator’s use of the words “could” and “might” is appropriate. The consequences of this ruling are not yet fully understood. But they are clearly serious, and clearly threatening, for tens of millions of American workers.
The Court’s action invites arbitration abuse. It also creates uncertainty where there should be clarity. While Justice Ruth Bader Ginsberg has suggested that the decision does not “place in jeopardy” discrimination claims that can only be proven through class action, the issue was not addressed in Justice Neil Gorsuch’s decision for the majority. A Bloomberg News analysis concludes that “the impact on civil rights claims is likely to be a subject of future court fights.”
Even as employment-law experts debate the potential consequences, the chilling effect on employees in non-union workplaces cannot be underestimated.
This 5-4 decision with regard to a trio of cases stemming from the practices of Epic Systems, Ernst & Young, and Murphy Oil USA is bad news for working Americans. Conservative justices have tipped the balance toward employers in disputes with workers. Justice Ginsburg characterized the majority’s reasoning as “egregiously wrong” in that it “holds enforceable” what she described as “arm-twisted, take-it-or-leave-it contracts—including the provisions requiring employees to litigate wages and hours claims only one-by-one.”
Justice Ginsburg’s dissent explains what the majority was got wrong:
The employees in these cases complain that their employers have underpaid them in violation of the wage and hours prescriptions of the Fair Labor Standards Act of 1938 (FLSA), 29 U. S. C. §201 et seq., and analogous state laws. Individually, their claims are small, scarcely of a size warranting the expense of seeking redress alone. See Ruan, What’s Left To Remedy Wage Theft? How Arbitration Mandates That Bar Class Actions Impact Low-Wage Workers, 2012 Mich. St. L. Rev. 1103, 1118–1119 (Ruan). But by joining together with others similarly circumstanced, employees can gain effective redress for wage underpayment commonly experienced. See id., at 1108–1111. To block such concerted action, their employers required them to sign, as a condition of employment, arbitration agreements banning collective judicial and arbitral proceedings of any kind. The question presented: Does the Federal Arbitration Act (Arbitration Act or FAA), 9 U. S. C. §1 et seq., permit employers to insist that their employees, whenever seeking redress for commonly experienced wage loss, go it alone, never mind the right secured to employees by the National Labor Relations Act (NLRA), 29 U. S. C. §151 et seq., “to engage in … concerted activities” for their “mutual aid or protection”? §157. The answer should be a resounding “No.”
In the NLRA and its forerunner, the Norris-LaGuardia Act (NLGA), 29 U. S. C. §101 et seq., Congress acted on an acute awareness: For workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers. A single employee, Congress understood, is disarmed in dealing with an employer. See NLRB v. Jones & Laughlin Steel Corp., 301 U. S. 1, 33–34 (1937). The Court today subordinates employee-protective labor legislation to the Arbitration Act. In so doing, the Court forgets the labor market imbalance that gave rise to the NLGA and the NLRA, and ignores the destructive consequences of diminishing the right of employees “to band together in confronting an employer.” NLRB v. City Disposal Systems, Inc., 465 U. S. 822, 835 (1984).
By closing off avenues for challenging unfair practices, the Xourt further undermines the position of America’s most vulnerable workers.
The three women on the Court—Justices Ginsburg, Sonia Sotomayor, and Elena Kagan—were joined by Justice Stephen Breyer in rejecting the premise that employers can use arbitration agreements signed by workers to block class-action lawsuits and other legal initiatives that might address workplace issues such as wage theft.
Fatima Goss Graves, the president of the National Women’s Law Center, bluntly declares that “the Supreme Court has taken away a powerful tool for women to fight discrimination at work.”
“Instead of banding together with coworkers to push back against sexual harassment, pay discrimination, pregnancy discrimination, racial discrimination, wage theft, and more, employees may now be forced behind closed doors into an individual, costly—and often secret—arbitration process,” explains Graves. “This will stack the deck in favor of the employer. For all working people, the right to join a class or collective action is an indispensable tool to advance fairness, justice, and equality at work.”
For women workers, however, Graves notes that “the stakes are particularly high. Women often face discrimination that is difficult to detect, like pay discrimination, or suffer from sexual harassment and face retaliation for reporting it. As mandatory arbitration is forced on growing numbers of employees as a condition of employment, the Supreme Court should strengthen rather than undermine the rights of workers to challenge insidious and often widespread civil rights violations.”
The high court ruling illustrates the importance of upcoming US Senate races, in which voters will decide whether to check and balance President Trump’s determination to pack the Court with justices like Gorsuch. It also shows why it matters to elect members of Congress who will write laws that protect all workers.
“The inevitable result of today’s decision is that there will be huge underenforcement of federal and statutes designed to advance the well-being of vulnerable workers,” Ginsburg wrote in her dissent. “Congressional action is urgently needed in order to correct the court’s elevation of the Arbitration Act over workers’ rights to act in concert.”
That’s a plea for members of the House and Senate to address the harm done by the Court’s reckless and confusing decision. They can start by stepping up the drive to enact the Ending Forced Arbitration of Sexual Harassment Act of 2017. But they should not stop until they have made it clear that corporations must never use arbitration agreements as tools for denying rights and protections to workers.
