McDonald’s, Marriott franchises didn’t pay COVID-19 sick leave. That was illegal. – Center for Public Integrity

Aug 3, 2020

center for public integrity

Posted on August 3rd | By Alexia Fernández Campbell 

Lucie Joseph started to feel sick on April 28 as she rang up customers at a Shell gas station in Delray Beach, Florida.

Joseph said her boss wouldn’t give her time off without a doctor’s note. But the owner of the gas station, Sun Gas Marketing and Petroleum, didn’t offer her health insurance, so she didn’t go to the doctor. Joseph, a single mother with a 10-year-old son, kept working — seven more shifts over 10 days.

Joseph’s symptoms worsened, so she decided to get tested for COVID-19. On May 9, Joseph learned she had tested positive, and a nurse told her to quarantine. Over the next six weeks Joseph tested positive twice more and texted the results to a manager. As instructed, she didn’t return to work until she had two consecutive negative tests. On June 15, however, she was fired.

“I was stunned,” said Joseph, who showed the Center for Public Integrity images of the text messages with her employer and a document indicating she’d tested positive for COVID-19.

Joseph, who earned $13 an hour, didn’t realize she had a legal right to job protection. She eventually was paid two weeks’ wages, but even this violated the law: She should have been paid as soon as she went into quarantine.

Two months before Joseph was fired, President Donald Trump signed the Families First Coronavirus Response Act, which requires certain small- and medium-sized businesses to pay a worker’s full salary for two weeks if they become infected with COVID-19 and prohibits businesses from firing employees for taking leave.

But Joseph didn’t know about the law until she consulted a lawyer. Many other workers are equally uninformed.

Meanwhile, hundreds of U.S. businesses have been cited for illegally denying paid leave to workers during the pandemic, according to documents Public Integrity obtained through a Freedom of Information Act request. As of June 12, nearly 700 companies had violated the law’s paid-leave provisions and owed back wages to hundreds of employees, according to Labor Department records. Violators include six McDonald’s franchises and the owners of Comfort Suites, Courtyard by Marriott and Red Roof Inn franchises.

In all, the businesses owe $690,000 in unpaid wages to 527 employees, who are not identified in the documents. Most of the workers are low-wage earners in the construction, hotel and food industries. It’s likely many more companies have broken the law because workers such as Joseph aren’t aware of their rights and therefore haven’t filed complaints. The Trump administration hasn’t made a point of educating them.

“Workers with low wages are most in need of paid leave,” said Tanya Goldman, a former Labor Department policy advisor who’s now an attorney at the Center for Law and Social Policy, a nonprofit focused on advancing anti-poverty policies. “They literally cannot afford to stay home and take a sick day if they get COVID.”

Eileen Arslan, comptroller for the Courtyard by Marriott franchise in Fort Walton Beach, Florida, which was cited for a violation, said hotel staff members were confused at first about who was covered under the new law. But as soon as they heard from the Labor Department, they paid the employee the wages owed. Red Roof Inn’s corporate office said they were trying to track down the employee involved, but didn’t give further comment. The corporate office for Comfort Suites did not respond to request for comment.

Joseph is now receiving unemployment pay while looking for work. She’s preparing to sue Sun Gas, claiming it broke the paid-leave law. “Bosses need to know that we’re human, that we have family too,” Joseph said.

Sun Gas owner Richard Vogel did not respond to requests for comment about why Joseph was fired.

Congress is considering another stimulus bill that would extend paid sick days to workers not covered under the current law, such as health-care workers, first responders and employees at companies with more than 500 workers. Establishments with fewer than 50 workers are exempt if they show paid leave would seriously hurt their businesses.

But the bill is tied up in the Senate as Republicans and Democrats fight about how much aid to give workers.

‘I need to eat’

About a third of U.S. workers don’t receive paid time off from their employers. Most of them work in low-wage jobs. Others, such as Joseph, get only one or two days of paid time off a year. Others get a bit more, such as Angely Rodriguez.

Rodriguez, who works as a cashier at a McDonald’s restaurant in Oakland, California, gets up to five sick days a year under state law. But that wasn’t enough to pay her bills while she recovered from COVID-19.

Rodriguez was one of 11 employees at the McDonald’s in the East Bay neighborhood of Temescal who tested positive for the coronavirus in late May. Forced to quarantine, Rodriguez asked if she could get paid while she recovered at home. Probably not, her boss said, adding that she would check with her supervisor. Rodriguez said she never got a response.

Rodriguez, who earns $14.14 an hour, didn’t realize she had the right to get paid for two weeks during quarantine.

“Imagine living here without any money,” Rodriguez said in Spanish. “I can’t stay in my home if I don’t pay the rent, and I need to eat and send money to my family.”

Click here to download the document obtained by the Center for Public Integrity through a Freedom of Information Act request.

Rodriguez and five co-workers are suing the franchise owner, VES McDonald’s, for allegedly breaking local labor laws, including a temporary Oakland ordinance that requires employers to give workers two paid weeks off if they get sick during the pandemic.

Rodriguez said she eventually was paid for 60 hours but is owed another 20. The company said it eventually paid all workers in mid-June who asked for leave, according to court records.

Rodriguez’s employer, McDonald’s franchise owner Valerie Smith, did not respond to a request for comment. In court documents, her lawyers said the franchise has complied with the law.

A spokesperson for McDonald’s Corp. said the company asks employees who are sick to stay home.

“We’re confident the vast majority of restaurant employees impacted by COVID-19 are getting paid sick leave through existing franchisee and corporate policies, the Families First Coronavirus Response Act, CARES Act and state and local regulations, and McDonald’s USA requires its franchisees to comply with all applicable laws and regulations,” the spokesperson wrote.

Angely Rodriguez Lambert, center, strikes with her fellow co-workers at a McDonald’s restaurant in Oakland, California. The group was demanding two-weeks of paid quarantine for sick workers and personal protective equipment for those who continued on the job. (Courtesy of Fight for $15 and a Union)

Rodriguez and Joseph are the types of workers the Families First law was supposed to help: low-income earners who aren’t paid if they are sick or don’t get enough paid leave to quarantine for at least two weeks.

The law also guarantees working parents 10 weeks off at two-thirds pay if a worker’s child-care provider closes because of the pandemic. Employers get a tax credit to cover the cost.

Data from the Labor Department’s Wage and Hour Division, which enforces the paid-leave law, shows that businesses with a large number of low-wage workers are breaking the law more often than others.

Most of the violators are construction and renovation companies, hotels, restaurants, grocery stores and manufacturers. According to the Labor Department, about a dozen companies are repeat violators, including a McDonald’s restaurant in Salem, New Jersey, and the Broward Children’s Center near Fort Lauderdale, Florida. The owner of the McDonald’s in Salem did not respond to a request for comment. The child-care center said it’s complying with the law and declined to comment further.

The U.S. Postal Service has the most violations — 57. It owes workers nearly $100,000, Labor Department records show.

Workers fight for sick leave

Sandra Capkovic, who delivers mail in the Tampa, Florida, area, told Public Integrity a supervisor denied her request for 10 weeks of paid leave to take care of her 7-year-old son, whose babysitters have been unavailable during the pandemic. Capkovic said her supervisor told her the paid-leave law covers only parents whose children’s schools and day-care facilities are closed, and she would have to use the 10 days of annual leave she had accumulated. The Families First law covers working parents whose “child care provider” is unavailable, but doesn’t specify whether that includes babysitters.

Capkovic said she didn’t file a formal complaint because she didn’t know if her supervisor had violated the law.

A spokesperson for the postal service said the agency began educating employees about their rights as soon as the law was signed by the president.

“Significantly, the number of violations cited (57) is a very small fraction of the Postal Service workforce, which is comprised of more than 630,000 employees,” she wrote.

Two former Labor Department officials said the 692 paid-leave records obtained by Public Integrity likely reflect only a fraction of employers who are breaking the law.

“It’s very challenging for an employee, in a time of increasingly high unemployment and instability in the labor market, to have the courage to make a complaint,” said Michael Hancock, an employment lawyer at the firm Cohen Milstein in Washington, D.C., and an assistant administrator for policy in the Wage and Hour Division during the Obama administration.

‘Irresponsible’ enforcement

The Wage and Hour Division has fielded more than 250,000 calls since the paid-leave law went into effect, and about 25 million people have visited its website. The division did not respond to questions about the number of complaints filed or investigations that remain open.

Violation data obtained by Public Integrity suggests investigators are not conducting companywide audits, Hancock and Goldman said. All but a dozen of the 692 violations involved just one employee at one company. Labor experts say that’s a sign federal investigators are not checking to see if other workers at a company were illegally denied leave.

“They literally cannot afford to stay home and take a sick day if they get COVID.”

Tanya Goldman, attorney at the Center for Law and Social Policy

Hancock called this one-off enforcement strategy “irresponsible.”

Goldman said the division should do more to educate workers and employers about the law because many may not know about the temporary paid-leave benefit.

Congress set aside $15 million for the Labor Department to spend on advertising and program administration. But the agency didn’t launch a major outreach campaign until mid-July — more than three months after the law was signed.

Of the six workers who spoke to Public Integrity, only one was aware of the law at the time it could have been of help.

The Labor Department has defended its enforcement of the paid-leave benefits. Investigating individual complaints — instead of conducting companywide audits — allows staff to quickly resolve cases that could otherwise take months, said Edwin Nieves, a spokesperson for the Wage and Hour Division (WHD).

“[The division’s] response has been swift and comprehensive,” he wrote in a statement to Public Integrity. “WHD has simultaneously addressed the need to provide information to the American workforce about their rights and benefits available under the Families First Coronavirus Response Act (FFCRA) and the need to enforce the new law to ensure workers get the protections they need and deserve.”

Fighting paid-sick leave

The coronavirus aid bill introduced by the House of Representatives in March would have created the nation’s first paid sick-leave program. The bill would have allowed paid time off to anyone who earned income in the previous 30 days before becoming sick with coronavirus or needing to take care of a family member.

Then the lobbying began.

On March 12, a day after the bill was introduced, the U.S. Chamber of Commerce warned lawmakers not to pass a universal paid-leave program.

Later that evening, the National Association of Manufacturers sent Congress a similar message.

The International Franchise Association said the paid-leave measures would force chain stores to lay off workers.

In the end, more than 800 companies and organizations lobbied Congress and the Trump administration on the Families First bill, according to the Center for Responsive Politics.

By the time the legislation passed the House on March 14, it looked much different than the bill introduced three days earlier. The paid-leave program excluded employees of companies with more than 500 workers, or about half the U.S. workforce. It also excluded health-care workers and emergency responders, and gave the Labor Department authority to exclude businesses with fewer than 50 employees.

After the federal paid-leave program went into effect in April, the Labor Department further narrowed the group of workers eligible for the benefit. It ruled, for example, that hospital janitors and cafeteria workers were also unprotected because of the law’s exclusion of health-care providers.

The interpretation incensed former Obama Labor Department officials, who charged the Trump administration in an op-ed with “undermining the health and welfare of workers and their families.”

It’s unclear if the coronavirus legislation lawmakers are negotiating will restrict, expand or leave the program untouched.

In the meantime, Joseph is looking for work. Her dream of owning a home seems farther away than ever.

“This is a big hit,” she said. “It’s hurting me, not being able to work.”

Peter Newbatt-Smith and Kristine Villanueva contributed to this report.

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