Whole Worker Sick-Out Was Half-Assed

April 3, 2020

Recently, "Whole Worker" launched a campaign urging "Whole Foods Market employees to engage in a mass sick out" on March 31, 2020. https://www.coworker.org/petitions/
 . I shop at Whole Foods and online at Amazon, but I also patronize smaller, local retail stores. Before I became a lawyer, I was the third-generation of my family in the retail wine and liquor business. I worked six days a week. After we sold the family business, I often worked the night shift at various liquor stores. Trust me, you haven't lived a rich and vibrant life until you've worked nights in a liquor store. Until you've had some idiot walk into the store with a gun tucked into his pants. Until you've had a gun pointed at you. Until you've come to work the day before Thanksgiving, Christmas, or New Year's Day with a high fever because, well, because there just wasn't any option about staying home sick on one of the busiest days of the year. After my family business was sold, I worked as a night manager of a Burger King, as the night and/or wine manager of several liquor stores, and as a buyer for a major retailer. For many of my retail stints, I was a union member. So -- you know, it's going to be tough to find someone who has more empathy for the plight of any retail worker.

In these dire times of a killer pandemic, when so many folks are desperate to get food, the Whole Worker campaign thought that it was a great idea to shut down every Whole Foods grocery store as an act of protest. In furtherance of their sick-out, Whole Worker called upon "the AFL-CIO and CtW to begin organizing the unorganized and supporting this effort." Pointedly, the Whole Worker group listed these sets of demands:

-Guaranteed paid leave for all workers who isolate or self-quarantine instead of coming to work.

-Reinstatement of health care coverage for part-time and seasonal workers.

-Increased FSA funds to cover coronavirus testing and treatment for all team members, including part-time and seasonal.

-Guaranteed hazard pay in the form of double pay during our scheduled hours.

-Implementation of new policies that can facilitate social distancing between workers and customers.

-Commitment to ensuring that all locations have adequate sanitation equipment and procedures in place.

-Immediate shutdown of any location where a worker tests positive for COVID-19. In such an event, all workers should continue to receive full pay until the store can safely reopen.

Given the wealth of Amazon/Whole Foods, there is no question that it is unconscionable for such a company to not provide its workers with paid leave during times of quarantine and a robust, full healthcare package. Out of a concern for its employees, customers, and its own best interest, Amazon/Whole Foods should be motivated to pursue the best possible coronavirus testing program with attendant care for any afflicted employees. Frankly, it would seem beyond argument that the company should insist upon social distancing and sanitary conditions, and out of an abundance of caution, should implement a protocol to immediately shut down any work-site where an employee tests positive for COVID-19, and undertake prompt efforts to sanitize said location before bringing it back up. 

Please read and then re-read the above paragraph. There should be no question that I fully accept the key points in the Whole Worker demands  - or at least six of the seven.

I think that Whole Worker's posted demands were formatted in error because it appears that the published version (which only has six indented demands, should have seven indented demands -- an errant "dash" is missing from what I view as the third and fourth items above). I unequivocally support six of the seven demands made by Whole Worker -- pointedly, the first three and the last three. 

Where I part company with the demands is over the call for union organizing and the specific demand for "Guaranteed hazard pay in the form of double pay during scheduled hours."  Moreover, I find that double-pay demand to be outrageous in light of the ongoing pandemic and amounts to little more than a disgraceful bit of extortion and takes on many aspects of illegal price gouging. 

Many states are already pursuing price-gouging investigations in response to predatory pricing by those who lack any moral qualms about ripping off desperate folks in desperate times. We've all seen the stories about some online retailer or brick-and-mortar store that has hoarded personal protective equipment or doubled, tripled, or further multiplied the retail price of hand sanitizer, face masks, or surgical gloves. By way of example, under the New York Consolidated Laws, General Business Law Section 396-r: Price Gouging, we have, in part, the following statutory provisions [Ed: highlighting emphasis added]:

. . .
2. During any abnormal disruption of the market for consumer goods and services vital and necessary for the health, safety and welfare of consumers, no party within the chain of distribution of such consumer goods or services or both shall sell or offer to sell any such goods or services or both for an amount which represents an unconscionably excessive price.  For purposes of this section, the phrase "abnormal disruption of the market" shall mean any change in the market, whether actual or imminently threatened, resulting from stress of weather, convulsion of nature, failure or shortage of electric power or other source of energy, strike, civil disorder, war, military action, national or local emergency, or other cause of an abnormal disruption of the market which results in the declaration of a state of emergency by the governor. For the purposes of this section, the term consumer goods and services shall mean those used, bought or rendered primarily for personal, family or household purposes. . . .

3. Whether a price is unconscionably excessive is a question of law for the court.

(a) The court's determination that a violation of this section has occurred shall be based on any of the following factors:  (i) that the amount of the excess in price is unconscionably extreme;  or (ii) that there was an exercise of unfair leverage or unconscionable means;  or (iii) a combination of both factors in subparagraphs (i) and (ii) of this paragraph.

(b) In any proceeding commenced pursuant to subdivision four of this section, prima facie proof that a violation of this section has occurred shall include evidence that

(i) the amount charged represents a gross disparity between the price of the goods or services which were the subject of the transaction and their value measured by the price at which such consumer goods or services were sold or offered for sale by the defendant in the usual course of business immediately prior to the onset of the abnormal disruption of the market or

(ii) the amount charged grossly exceeded the price at which the same or similar goods or services were readily obtainable by other consumers in the trade area.  A defendant may rebut a prima facie case with evidence that additional costs not within the control of the defendant were imposed on the defendant for the goods or services.. . . .

As someone who walked home covered in soot from Ground Zero on 9/11, I am reminded of the disgraceful conduct of a manager at the Battery Park Plaza Starbucks. As set forth in part in Starbucks Apologizes for Water Flap (By Associated Press, September 26, 2001 and as updated January 13, 2015) https://www.foxnews.com/story/starbucks-apologizes-for-water-flap;

Shortly after the Sept. 11 attack, rescue workers rushed into a nearby Starbucks store to get water to treat shock victims, Rapisarda said. Ambulance company workers said employees in the shop demanded they pay $130 for three cases of bottled water. The workers paid cash, out of their own pockets.

Focusing on the horrific events of 9/11, nearly 3,000 lives were lost, of which over 400 were first responders, among whom were heroic firefighters, police, and EMTs who knew that they were running headlong into danger. Imagine if, on 9/11, while the World Trade Center towers were burning down and New York City was literally under attack, imagine, if the first responders stopped responding, drew up a list of seven demands, and called in sick. Nearly 3,000 dead? Not likely, perhaps double, triple, or even more that number. 

No, you misguided participants in the Whole Worker alliance, I won't put my signature on your Petition. I support virtually everything you seek but you sullied your good names and the integrity of your effort by using the opportunity to demand union organizing and to extort double pay.  There is, indeed, a proper time and a proper place for both those demands -- just not now when folks are dropping dead in the streets and our hospitals are overwhelmed. The COVID-19 pandemic is not an opportunity to organize Amazon or Whole Foods. It is an epic human tragedy of biblical proportion. It is an Angel of Death that respects no blood on any door. All of us are in this together. 

There is no question that many major corporations victimize their employees in the service of profit. When such nefarious practices cross the line, those corporations, their Boards, and their C-suiters should be sued, prosecuted, driven from business, and incarcerated. On the other hand, the American workforce has also been victimized by corrupt labor unions. Let me remind you that the Change to Win Federation ("CtW") was founded in 2005 when James P. Hoffa pulled his Teamsters Union and the Service Employees International Union ("SEIU") from the AFL-CIO. Hoffa cited the labor schism as being caused by the failed leadership of AFL-CIO President John Sweeney. Hoffa promised a new era of union reform and stronger workers' rights.

I need access to food, and I literally risk my life simply by going outside and into a Whole Foods to shop. In taking that risk, however, I am also requiring the men and women employees to incur similar risks in order to make it possible for me to shop. When I shop at Whole Foods or buy from Amazon, I am all too aware of the daily exposure to the virus that is visited upon each and every employee. They risk their lives going to work, handling inventory, and serving the public. Don't minimize that. In this crisis, those retail workers are akin to first responders. Like I said, the Whole Worker campaign has a friend in me but not one in lock-step on all points.

Just as I would not approve of Amazon/Whole Foods threatening to lock out its employees if they didn't agree to half pay during the pandemic, just as I would be angered if the conglomerate imposed a doubled charge for healthcare upon its employees -- I am equally troubled by the employees thinking that a rising death count is an opportunity to demand double pay. During these times, it may well be that double or triple pay is in order for many employees in many industries. I don't dispute that. But walking out of grocery stores during this pandemic strikes me as using unfair leverage or unconscionable means. Our medical heroes deserve increased pay and bonuses. When I see nurses and doctors protesting, however, they are only complaining about the health and safety of themselves and their patients. I have yet to see a nurse or doctor refuse to return to an ICU unless the AFL-CIO or Change to Win organizes the hospital's staff. I have yet to see a nurse or doctor threaten a sick-out unless they were given double pay. Accordingly, Whole Worker's sick-out comes off as half-assed.