When an essential food worker reports unsafe conditions, there are few protections from employer retaliation. One organizer group has a solution.
Editor’s Note: Bimbo Bakeries USA disputed an earlier version of this story. It has been updated with added reporting and additional comment from Bimbo.
In a special report published earlier this month, Reuters identified 106 U.S. workplaces where employees complained about inadequate Covid safety protocols but most never got an inspection by the Occupational Safety and Health Administration (OSHA). Of the 70 workplaces that weren’t inspected at all, the report read, “at least 4,500 workers were infected by the coronavirus and 26 died after contracting Covid-19.”
In the 11 months since Covid began its spread across the country, a difficult truth has emerged: For essential employees, the simple act of going to work can mean the difference between life and death. That choice is painful enough. But for workers who want to report unsafe or hostile conditions on site, the fears can be myriad—retaliation in the form of reduced shifts, suspension, or even job loss—and can keep them from voicing concern.
What if workers had another option? One group of organizers has devised a solution.
In September, Black Workers Matter activists on the West Side of Chicago introduced the Covid Report/Ing Card, a free cell-phone app that enables workers to anonymously grade their employers on Covid-safe precautions. The technology was originally developed for workers at the Bimbo USA and Hostess bakeries in the Cicero and Galewood areas of Chicago, respectively. Both facilities were embroiled in ongoing disputes between workers and management over a range of grievances, from pre-pandemic accusations of racist staffing policies when they were both owned by parent company Aryzta, to inadequate Covid safety protocols. The app is now available to all factory workers in Chicago’s West Side.
“Not only did we know what we were talking about, but we were being vocal. So Bimbo knew we would be credible and they wanted to silence us.”
Through the app, an anonymous online survey, or in hard copy at the factories themselves, workers can now submit reports to organizers who have been liaising with management to resolve their issues. It’s a model for worker activism that—if replicated in other cities—could encourage more employees to come forward with concerns about safety or other dubious workplace conditions.
Some of the questions the Covid Report/Ing app asks: How well does your boss keep line speeds down so workers can separate? Does your boss provide and enforce PPE at all times? Does your boss respect sick/vulnerable/exposed workers’ right to sick leave without losing their jobs? What changes does your boss need to make to keep you safe?
The ongoing disputes at Bimbo make perhaps the very best argument in favor of this technology.
“I was branded a troublemaker,” said Shay Mitchell, a former team lead at the Bimbo factory, where she worked until March. Mitchell was previously a union steward and had organized with other Bimbo employees against claims of racial discrimination. “I spoke up against racism. I spoke against retaliation,” she said. (Bimbo USA purchased the Cicero facility from Aryzta in February of 2018 and says it inherited that company’s past disputes.)
“We heard from workers who had tested positive for Covid, were told to quarantine at home, then were still being called in with a threat of losing their jobs if they didn’t show up,”
Mitchell said she loved her job and would sometimes come to work an hour early, but because of an underlying condition, her doctor had advised her to stay at home to avoid contracting the virus. What she had seen at the factory in the beginning of the year, she said, surprised her: not enough masks, lax enforcement of social distancing, and poor sanitation.
In April, Mitchell, Yvette McCallum, and two other workers spoke to local news outlet Cicero Independiente about the conditions they witnessed at the factory. All four workers were suspended or terminated shortly thereafter.
Mitchell and McCallum claimed this was an effort by management to retaliate against them for speaking publicly about what the company has said were its best-in-business Covid safety protocols. Bimbo, in a four-page letter to The Counter in December, adamantly disputed Mitchell’s claim, saying in part that the company had “provided appropriate personal protective equipment, including face masks, ahead of CDC requirements,” and had implemented “social distancing practices like staggering shift start times, adjusting locker locations, and marking locations on floors to indicate six-foot distances at entrances, time clocks and handwashing stations.”
In three letters to Mitchell reviewed by The Counter, Bimbo appears to have first accommodated her with a medical leave, then suspended her in June for not returning to work despite her claims of ill health, then suspended her a third time in August. Efforts to verify details with Bimbo about Mitchell’s employment status yielded the following response: “Ms. Mitchell has been told that she is on an approved medical leave of absence. She received a special bonus payment from us, as an active associate, earlier this month.”
Mitchell said she isn’t aware of any bonus payment and is on long-term disability but remains in limbo with the company, while McCallum is in arbitration.
Another current worker at the Bimbo factory, who spoke anonymously out of fear of retaliation, said the facility is still not regularly supplying workers with free masks. And a former sanitation worker, who verified Mitchell and McCallum’s claims, reported that the masks, which they believed were not being washed by workers between shifts, “were filthy.” “We felt we had a duty to speak up because we were [in] sanitation,” the worker said. “And that was a threat to Bimbo. Because not only did we know what we were talking about, but we were being vocal. So Bimbo knew we would be credible and they wanted to silence us.”
One could argue that retaliation looks like many things, including making a worker’s employment status a moving target, or even failing to act on claims. “We came up with the report card because a lot of people don’t want to speak out publicly. They’re scared they’re going to lose their jobs,” Black Workers Matter member Eunice Carson said. “They can tell us how they feel, they can tell us what’s going on, without worrying about retaliation.”
In its letter to The Counter, Bimbo USA categorically denied retaliating against its workers. “We have never retaliated against an associate for speaking up,” the company said. “We communicate with our associates regularly to gain their input into our processes and ensure they have the information they need to keep themselves and their co-workers safe.”
“Are Black workers’ greater exposure to Covid at the workplace contributing to the greater proportion of Covid in their communities?”
And innovation like the app, of course, is just a means for workers to report their real-time experiences. But it can’t do everything to combat retaliation. That’s why, in other cities across the nation, additional measures are being taken by lawmakers to protect employees who report on their working conditions. In Philadelphia, for instance, Councilmember Helen Gym held virtual town halls in February for wage workers to relay their Covid safety concerns. “We heard from workers who had tested positive for Covid, were told to quarantine at home, then were still being called in with a threat of losing their jobs if they didn’t show up,” Gym said, noting that most of the city’s essential workers—grocery store workers, transit workers, healthcare workers, and delivery and warehouse workers—are Black and Brown.
Hearing those stories led Gym to introduce The Essential Workers Protection Act, which was signed into law by Mayor Jim Kenney, a Democrat, in June. The first bill of its kind in the U.S., the legislation bans companies from retaliating against workers who report health and safety infractions through firing or reduced hours. “A lot has been happening at the local level because it certainly is not happening at the level it needs to in Congress or many of our state legislatures,” Gym said.
In the case of the Bimbo factory in Cicero, an anti-retaliation law could have added a layer of protection for workers like Mitchell and McCallum. Both women said they are still getting calls “every day” from people who are too afraid to speak about the conditions there. “Even though I was no longer at work, [workers] were still calling me and asking me about what they could do and what they couldn’t do,” about feeling sick or staying home.
Laura Padin, senior staff attorney at the National Employment Law Project (NELP), said that anti-retaliation bills are only the beginning in protecting workers’ rights to speak out. In a report published this June, NELP recommended that if any adverse employer action is taken within 90 days of an employee raising the alarm, it should be considered retaliation. The organization recommended “just cause” protection, which requires employers to give advance notice and a good reason before workers lose their job. This is far from the norm. Currently, all states but Montana operate under at-will employment laws, meaning employers can terminate any of their employees at any time and for any reason, as long as the reason isn’t discriminatory. The tide may be slowly turning, though: In New York City in December, the City Council passed a bill prohibiting fast-food employers from firing workers without just cause.
“[Changes in protections] will depend a lot on worker movements on the ground,” Padin said. “That plays a huge role in whether workers feel comfortable speaking out.”
The NELP report also found that Black workers are more than twice as likely as white workers to be retaliated against for reporting safety concerns during the pandemic.“This report really raises the question: Are Black workers’ greater exposure to Covid at the workplace contributing to the greater proportion of Covid in their communities?” Padin said. If that’s the case, these major corporations should also be held accountable for the detrimental spread of Covid in Black and Brown neighborhoods.
Padin includes OSHA in that accountability, too. “At NELP, we have been very critical about how little OSHA has done to protect workers,” Padin said. From the beginning of the pandemic until August, NELP kept track of the 1,744 complaints of Covid-related employer retaliation and found that 54 percent of the complaints were dismissed or closed without investigation, and only 2 percent of the complaints were resolved. According to The New Yorker, as of October OSHA has received more than 10,000 complaints about unsafe work conditions during the pandemic, and has issued only two citations under the General Duty Clause, which requires employers to create a hazard-free workplace. “I think this is really sending a signal that companies can do what they want,” Padin said.
A presidential transition will likely mean a change in how OSHA operates, but at least for now, local organizing from Black Workers Matter and other groups may have to suffice. “[Changes in protections] will depend a lot on worker movements on the ground,” Padin said. “That plays a huge role in whether workers feel comfortable speaking out.” Grading company safety compliance within worker organizing circles can keep momentum going without workers fearing retaliation from bosses.
Initially, the Report/Ing Card app was about gathering information about what was happening inside the factory, but the group is now using its submissions to build a case for legislation and regulations. “I’m not going to risk my health for some muffins and some cakes,” McCallum said. The hope is that no one else will have to, either.