Trump Policy to Stop Covid-19 Relief Found Unlawful

A federal court in California recently struck down the Trump Administration policy that prevented currently and formerly incarcerated individuals from receiving their $1,200 stimulus payments under the COVID-19 lockdown relief bill. The preliminary injunction requires the U.S. Treasury, the IRS, and the United States of America to stop withholding CARES Act stimulus funds from individuals based solely on their incarcerated status. The case is Scholl v. Mnuchin, 20-cv-05309-PJH. 

Because of the decision, thousands of currently and formerly incarcerated folks will now be entitled to the $1,200 check that non-incarcerated Americans have already received. For more information about who is eligible and how to file, please visit  the IRS’s “Economic Impact Payment Information Center.”  

Congress passed the CARES Act to help stimulate the economy during the ongoing COVID-19 pandemic. The Act allocates, among other things, $1,200 to “eligible individuals,” as well as $500 for each qualifying child. An “eligible individual” is defined as “any individual” other than: (1) someone who isn’t an American citizen, (2) any individual who is claimed as a dependent on someone else’s tax return, and (3) an estate or trust. 26 U.S.C. § 6428(d). 

Though the Act did not explicitly or impliedly exclude incarcerated people, the Trump Administration refused to issue checks to anyone currently in prison or jail. In fact, after the IRS sent 84,861 payments to incarcerated individuals, the government required them to return the payments. Plaintiffs Colin Scholl and Lisa Strawn filed a class action on behalf of themselves and other currently and formerly incarcerated persons, asserting that excluding them from the COVID-19 relief was unlawful. 

The court’s injunction rejected the Trump administration’s practice of withholding CARES Act payments from individuals on the basis of their history of incarceration, at least until trial. The court also certified the class, so that all those Americans denied relief in this manner could proceed together. 

The court recognized the current economic reality faced by many incarcerated individuals across the U.S., and subsequently, how refusal of the CARES Act payment has caused and would continue to cause “irreparable harm.” Most individuals who enter prison were economically disadvantaged beforehand. Inmates often must purchase basic necessities to survive while incarcerated, as the court explained:

[P]risons do not provide all basic necessities required by incarcerated persons, including food and hygiene. With respect to food, incarcerated people supplement their food with items from the commissary, especially since … some institutions have reduced the number of calories or meals provided to inmates…. [S]ome penal institutions require inmates to pay for their own soap and personal hygiene items. 

Scholl v. Mnuchin, at 31.

The economic strain on family and loved ones of inmates has only intensified since the pandemic struck. Id at 31. As of October 15th, there are 1,560 cases per 10,000 prisoners in California, which is 623% higher than California overall. In the first three months of the pandemic, more than 10,000 federal prisoners applied for compassionate release, though only 156 were approved. Many states have suspended visitation--including legal visits--all together. The pandemic, as well as the opinion itself, raises concerns about whether America’s prisons are humane, if inmates do not have necessities for survival.

The Court found that the Trump administration’s interpretation of the CARES Act would likely be considered “arbitrary and capricious.” Scholl v. Mnuchin, at 28. “Defendants have not directed the court to any other evidence indicating that the Treasury Department or IRS gave any reason for its decision, much less an adequate one.”  Id. at 34.

Among other things, Trump’s administration claimed that the plaintiffs had shown no injury, but the court found that the denial of CARES ACT payments now, when they are most needed, was a sufficient injury. Id. at 11-12.

For more information about the case, please visit Lieff Cabraser Heimann & Bernstein’s blog post, “Federal Judge Certifies Class, Orders Trump Administration to Stop Denying Pandemic Relief Funds to Incarcerated Persons.” For information about the impact of COVID-19 on incarcerated people, please visit Equal Justice Initiative’s article, “COVID-19’s Impact on People in Prison.” 

Workers Sue Whole Foods After Being Disciplined for Wearing Black Lives Matter Masks

Employees of Whole Foods have filed a class action lawsuit against the supermarket for race discrimination and retaliation after they were allegedly disciplined for wearing masks supporting the Black Lives Matter (BLM) Movement. While Whole Foods—owned by Amazon—has always had a corporate policy forbidding workers from wearing slogans or logos that are not company-related, the workers allege that this policy was not enforced until many employees began wearing BLM slogans at work. The lawsuit seeks reimbursement for lost wages and expungement of any disciplinary action for the disciplined workers. It also seeks permanent injunctive relief for all employees, calling for Whole Foods to end its policy of not allowing BLM masks at work.

 

According to the complaint filed in Massachusetts District Court by fifteen workers across five stores, Whole Foods disciplined about 40 employees and fired one employee—Savannah Kinzer—for wearing BLM masks or slogans at work. Employees were sent home or threatened with termination when they wore their BLM masks. Others were written up or placed on a “corrective action pathway,” which requires employees to re-train. Kinzer, in particular, had also organized workers to wear BLM masks. When workers were disciplined, she filed complaints with the National Labor Relations Board and the Equal Employment Opportunity Commission but was fired within an hour of informing her manager of the complaints. Whole Food maintains that Kinzer’s termination has no relation to her wearing BLM masks and was due to her repeated violations of Whole Food’s Time & Attendance policy. 

 

The suit alleges that no employees have previously been disciplined for wearing non-work-related slogans, including employees who have worn pins supporting the LGBTQ movement and one employee who wore a pin that said, “Lock him up.” The workers and their lawyers argue that disciplining employees who wear BLM slogans constitutes discrimination against Black employees and other employees who support their Black coworkers. 

 

This lawsuit comes at a time when many companies have broadened their dress code policy to allow workers to wear BLM apparel at work, including Starbucks, McDonald’s, and Taco Bell. Meanwhile, an independent federal agency called the Office of Special Counsel found that federal employees may express support for the BLM Movement in the workplace without violating the Hatch Act, which restricts political activity by government employees, because the term BLM does not amount to “inherently political activity.”

 

Bryan Schwartz Law has written about the Black Lives Matter Movement, race discrimination, and retaliation many times before. If you believe you were discriminated against or retaliated against at work, please contact Bryan Schwartz Law today.

Whistleblowers—Public Heroes in an Uncertain Time for Workplace Safety

This morning, Dr. Rick Bright is testifying on Capitol Hill. Dr. Bright is known for being fired from the Biomedical Advanced Research and Development Authority for opposing the use of a drug falsely touted by Trump as a possible coronavirus treatment. His testimony today, which is in progress during this writing, has emphasized safety measures he believes the federal government should be making to prevent the spread of the deadly disease.

The current COVID-19 pandemic has heightened the importance of whistleblowers such as Dr. Bright reporting workplace safety like never before. Workers who still must report to a physical work site depend on their employers taking serious and effective measures to protect them. While many conscientious employers engage in such safety practices, others have thrown their employees under the bus, forcing them to risk their health for the companies’ profits—literally profiting off the lives of their workers.

Perhaps the most famous heroic COVID-19 whistleblower is China’s Li Wenliang, a doctor who sounded the alarm about the seriousness of the virus in its early days only to be sanctioned by the Chinese government and later die of the illness. Beyond Dr. Bright, the United States has seen its fair share of whistleblowing as well, especially concerning unsafe working conditions. Holding employers accountable for workplace safety is paramount during the pandemic, given that the workplace is one of the places where the virus is most likely to spread. Whistleblowing employees are necessary to bring employer safety inadequacies to light.

But despite the importance of whistleblowing during these times—or perhaps because of it—the government and private companies have fired employees in retaliation for blowing the whistle. Like the federal government's termination of Dr. Bright, Amazon, one of the most powerful and wealthiest companies in the world, fired several warehouse employees, including Staten Island’s Christian Small, for raising concerns about workplace safety and attempting to organize a response. This prompted former Amazon VP Tim Bray to resign “in dismay” because of the company’s decision to fire whistleblowers. Bray noted in an open letter that the six or so whistleblowers who faced retaliation from Amazon at that time were all people of color, women, or both. At the end of the letter, Bray decried power imbalances in the workplace, writing that “warehouse workers are weak and getting weaker…[s]o they’re gonna get treated like crap….” Amazon has profited during the pandemic.

Other employees throughout the country have similarly faced retaliation for raising workplace safety concerns. An emergency room physician in early hard-hit Washington State, Ming Lin, was fired for giving a newspaper interview about his concern that his employer had inadequate testing and protective equipment. Navy aircraft carrier captain Brett Crozier was fired for writing a letter about the Navy’s failure to provide him with sufficient means to combat the virus (he later contracted it). Nurse Lauri Mazurkiewicz was fired for emailing her colleagues that that N-95 masks were more effective at protecting against the disease’s spread than the masks provided by the hospital where she worked, then wearing an N-95 mask to work—she has since filed a lawsuit.

It is especially wrong for employers to retaliate against whistleblowers, given the historic state of unemployment—jobs are precious and hard to come by for terminated whistleblowers trying to feed their families. Now more than ever, whistleblower protection laws are vital, as work environments have become less safe at employment sites where employees’ health is not taken seriously enough. For instance, meat packing plants, deemed essential by the Trump administration and already dangerous working environments even in the absence of COVID-19, are hotbeds for the virus to spread, leading to public concern and at least one federal lawsuit. Nursing homes, especially those who serve indigent or lower-class senior citizens, have been hit hard. Essential retail stores, such as grocery outlets, have also been seen suddenly dangerous working conditions. 

Employees at workplaces like these are understandably concerned about workplace safety. Consequently, thousands of employees have courageously filed workplace safety complaints against their employers related to the coronavirus. These complaints have involved poor safety practices such as failing to provide personal protective equipment like gloves, masks, disinfectant, and cleaning supplies; failing to follow or implement social distancing requirements; forcing employees to work alongside sick co-workers; and requiring employees to report to work on-site in non-essential sectors. Recently, the CDC revised its guidelines to allow asymptomatic workers to continue working, which may lead to further workplace safety issues as asymptomatic carriers infect their coworkers.

Concerned employees can file workplace safety complaints with the federal Occupational Safety and Health Administration (OSHA), the corresponding California state agency Cal/OSHA, or their local county health departments if the county has a separate health order in place. 

Now, more than ever, we need heroes willing to step forward. One of the only good bits of news in this pandemic has been that heroes are emerging like never before to protect their colleagues, themselves, and their families.  

Do not let the fear of unlawful retaliation stop you from blowing the whistle. If you face workplace retaliation for raising safety concerns, contact Bryan Schwartz Law. 

Rights and Resources for Workers in the Era of COVID-19

Bryan Schwartz Law wants workers to know their rights and what resources are available to them during the coronavirus pandemic.

• The California Employment Lawyers Association (CELA) has put out a newsletter in English, Chinese, and Spanish with resources and guidance on the rights of California workers.

• CELA has also put out a guide for pregnant and parenting workers.

•  Legal Aid at Work, Centro Legal de La Raza, and Bet Tzedek have released a resource guide in both English and Spanish.

•  Legal Aid at Work has also prepared an FAQ on coronavirus and the workplace in English, Spanish, and Chinese.

• Legal Aid at Work is conducting clinics virtually for workers throughout the state.

• Bet Tzedek’s Employment Rights Team will be holding weekly virtual clinics each Wednesday from 5-7pm PST. Those interested in making an appointment should call Bet Tzedek’s main line at 323-939-0506 extension 415.

• The Center for Workers' Rights is operating a Coronavirus Job Protection Helpline to help answer questions about workplace rights. Call 916-905-1625 from 9 am - 5:30 pm M-F. If you are in the Sacramento area, you can reach the line by dialing 211.

• The California Employment Development Department has issued guidance for both workers and employers on issues such as filing for unemployment and business closures.

• A Better Balance has resources for various states, including California.

•  If you are undocumented:

o    Here is a list of California relief funds in English and Spanish for those who have lost their jobs due to coronavirus.

o    The California Immigrant Youth Justice Alliance has put together resources in various languages, including English, Spanish, and Portuguese.

This is not a comprehensive list, but we hope that it can help workers feel more protected during this difficult time. We encourage folks to follow the organizations mentioned above on social media for real-time information.

We are lucky in California to have so many organizations that are dedicated to protecting workers’ rights and strong laws protecting workers. We’re in this together. If you feel like your rights are being violated in the workplace, contact Bryan Schwartz Law today.