New York and California Experiment with Giving Workers a Say in Industry Standards

FOLSOM, CALIF. — After a pharmacist tells Maria Bernal in January she probably has Covid-19, Bernal goes to the Jack in the Box fast food restaurant where she works with a fever and chills. She can barely read the order screen, she’s so dizzy. To show her manager how sick she is, Bernal places her cold hands on her manager’s face.

“Don’t worry, everyone has it, you can still work,” the manager says, according to a complaint filed January 14 with the Sacramento County Public Health department. ​“Just wear a mask and don’t tell anyone.” Bernal says she worked a double shift that day and continued working with Covid over the next four days. 

Three of Bernal’s coworkers have joined in the complaint, alleging Covid-related violations of public health guidelines. But such complaints are rarer than they should be. A January UCLA Labor Center study found 90 percent of fast food workers had Covid workplace concerns (or experienced an outbreak), but only 11 percent ever contacted the health department. 

In fast food franchises, ​“things routinely happen that shouldn’t happen,” such as denying sick leave, says Catherine Fisk, a labor law professor at the University of California, Berkeley. Because franchisers (such as Jack in the Box corporate) dictate so much of a franchisee’s business operations (including prices), stores try to maintain the ​“leanest possible staffing to match predicted demand,” Fisk explains. “[The] industry structure has baked-in exploitation of labor and exploitation of franchisees … who literally cannot comply with wage, hour, safety and health law and still make a profit.”

California, a state with more than a half million fast food employees (the most in the country), is considering a bill to address that structural exploitation. The Fast Food Accountability and Standards Recovery Act (AB 257), presently in the state senate after passing the state assembly, would make corporate franchisers liable for the labor violations of their franchisees, as well as protect workers who speak up. 

AB 257 also introduces a new labor reform gaining popularity: a workers’ council. 

The 11-member Fast Food Sector Council would include workers, worker advocates, regulators, franchisees and franchisers, who would be appointed by the state to set sector-wide policy, from wages to working hours to health and safety protocols. The idea is that workers know what violations are occurring, and franchisees know how they’re being squeezed; the council could let them simultaneously bring their issues to corporate representatives and regulators, who have real power to change profit structures and working conditions. 

Since 2018, four states and three localities have instituted workers’ councils in sectors from domestic work to agriculture. In Philadelphia, a domestic workers’ council is facilitating the country’s first portable paid leave system, so workers can accrue time off across multiple employers. 

In New York, the Nail Salon Minimum Standards Act, introduced in January, would create a worker council with business owners, government delegates and workers in 15 voting seats. It has the power to recommend a statewide pricing model, addressing the race to the bottom that’s pushing salon owners to cut corners and wages. 

“As nail salon technicians, we should be the ones at the table,” says nail salon worker Bina KC, who has worked in the industry since she immigrated from Nepal in 2016. ​“We have the experience, we’re the people who have been in the industry for so long and we’re the people impacted.” 

New York’s nail salon industry came under scrutiny in 2015 for various labor abuses, and legislators implemented new worker protections. But those protections have failed to be enforced and problems have persisted, says Clara Wheatley-Schaller, a political director at Workers United.

“We could try to address wage theft by filing complaint after complaint with the [Department of Labor], or lawsuit after lawsuit with employers — and we’ve done some of that — but we really haven’t seen it result in industry-wide change,” Wheatley-Schaller says. ​“It led us to believe that this industry just needs a whole new structure.” 

Sector-based councils aren’t completely new in the United States. Several states established wage boards, focused on pay, during the New Deal. The boards gradually fell out of use after federal wage protections were enacted, says Shaun Richman, a labor scholar who works at the State University of New York. 

In Europe, processes known as ​“extension provisions” extend union agreements throughout a sector or region. That kind of full sectoral bargaining isn’t possible under existing U.S. labor law, but advocates believe state legislated workers’ councils can set a precedent. Harris Freeman, who teaches labor law at Western New England University School of Law, calls it ​“a bold and positive experiment of localism, of state efforts to be creative in addressing workplace exploitation.” 

Councils could prove especially helpful for workers in industries where union organizing is difficult. Less than 3 percent of fast food and counter workers, and less than 1 percent of nail salon workers, are unionized.

“We can’t win anything without bargaining of any kind,” KC says. ​“That’s why I think it’s really important for us to be at this table, at this council.”