The Little Engine That Couldn’t Have Paid Sick Leave: How US Lawmakers Let Workers’ Rights and Health Go Off the Rails

Over the course of recent months, US lawmakers had a chance to come down strongly on the side of organized labor by backing railroad workers in their pursuit of paid sick leave. Instead, both Congress and the Biden administration opted to impose an agreement that the rank-and-file of four railroad unions, including the largest railroad union, had rejected. The deal, brokered by the Biden administration between industry and union leadership, contained several key wins for union members, a significant pay increase among them. However, it failed to address the railroad workers’ top priority—paid sick leave. A separate bill that would have guaranteed workers seven paid sick days ultimately died in the Senate (despite receiving a majority of votes in both houses of Congress).

While discussions of paid sick leave often focus on low-income, non-unionized, and predominantly female workers, the situation with the railroad workers makes it clear that many workers who do not fit that profile see paid sick leave as a make-or-break necessity. Rail workers are relatively well paid and boast some of the largest unions in the United States. They still didn’t get any paid sick days, and saw the issue as important enough to entertain striking over. The US’s lack of robust universal paid sick leave places an undue burden on all workers, not just on low-income workers who otherwise lack benefits through their jobs.

Among wealthy, industrialized nations, only the US has no guarantee of paid sick leave. This is despite the fact that, where guarantees of paid leave have been adopted at the state level, they have been shown to benefit employees and employers alike. Connecticut became the first US state to pass a law requiring certain employers to provide paid sick leave in 2011. Following the law’s adoption, a survey of Connecticut employers suggested the law had minimal impact on costs or business operations. Many of the employers noted a boost in employee morale and reduced spread of viral illnesses in the workplace. The law also did not appear to reduce employment, which actually rose in key industries like health care and hospitality.

New York City also experienced success with paid sick leave guarantees, after its 2013 Earned Sick Time Act made it the largest US jurisdiction at the time to have enacted such a policy. Fears that paid sick leave requirements would result in job loss and excessive burden on employers, especially small businesses, proved to be unfounded. The success of New York City’s policy helped lay the groundwork for New York’s statewide paid sick leave legislation, which went into effect in 2020. State laws like this should apply to rail workers who are employed in the states that have them, but rail companies have argued that even short-term paid sick leave is preempted by a provision in the 1936 Railroad Unemployment Insurance Act, and so far courts have backed them up.

Why are rail companies so opposed to such a basic and effective benefit? It’s because giving employees paid sick days is not compatible with their business model, which has produced outsized profits. In an effort to reduce overhead and funnel more revenue to Wall Street investors, the industry has moved towards Precision Scheduled Railroading (PSR). As with most financialized business models, “reduce overhead” is industry innuendo for slashing the workforce, reducing investments in equipment (in some cases, ripping out rail yards altogether), and forcing the workers who remain to pick up the slack. The result is that railroad companies’ annual net railway operating income — a profitability metric roughly equivalent to bond and stockholder returns — has increased substantially (Figure 1), while railroad employment has plummeted (Figure 2).

Figure 1

Figure 2

PSR makes do with leaner staffing by foisting irregular, grueling schedules on remaining employees. This system often requires railroad workers to be on call at virtually all hours, including when taking leave. Workers who take a personal day because they are sick face disciplinary action for not coming to work on short notice. BNSF, one of the “Big Four” rail companies, implemented an attendance points system docking workers for taking time off and rewarding them for working two weeks uninterrupted. Paid sick leave would disrupt the PSR model because it would require railroad companies to maintain additional labor capacity, so that operations could continue when workers called out sick.

The cracks in PSR have become increasingly visible during the COVID-19 pandemic. Aggressive cost-cutting, layoffs, and erratic scheduling have resulted in worker shortages. Railroads have been cited frequently for safety violations and for retaliating against whistleblowers. Meanwhile, the combination of PSR and lack of paid sick leave has made it difficult—sometimes impossible—for railroad workers to access medical care. This includes foregoing preventative care and treatment, making more serious and severe health issues more likely in the future. Lack of paid leave encourages people to come to work sick, increasing transmission of communicable diseases, such as COVID-19. During the first nine months of the pandemic in California, transportation and logistics workers had higher per-capita excess mortality than workers in any other “essential” industry group.

By withholding paid sick leave and requiring unpredictable schedules, railroad companies have contributed to long-term problems with worker shortages and supply chain resilience. Railroad workers have been on the frontlines of the COVID-19 pandemic from the beginning. Their hard work has ensured that vital shipments of food, medicine, and other goods continued despite catastrophic logistical breakdowns. Meanwhile, railroad management has pocketed record profits at the expense of their employees’ health. To allow them to continue doing so is inhumane and unsustainable, and puts the economy at risk. If these companies can afford $196 billion in stock buybacks and dividends, they can afford to provide their workers with paid sick leave.

In the absence of congressional intervention, unionized railroad workers likely would have secured sick leave. Had lawmakers declined to interfere, the railroad companies would have been confronted with a serious threat of a strike. If that was not enough to force them to grant workers paid sick leave, then workers could have actually gone on strike until their demands were met. A railroad strike would have been incredibly disruptive (which is the point of a strike), and was something that everyone involved hoped to avoid. Concerns over the economic effects of a strike were well-justified; the cost of a strike was estimated to be $1 billion in just the first week, with far-reaching negative consequences for consumers and other workers. Congress and the Biden administration could have moved to avoid such a scenario by revising the contract to include at least seven days of paid sick leave, rather than putting such provisions in a separate bill. Instead, lawmakers’ solution was to impose a contract without paid sick leave, one that workers in unions representing 55 percent of railroad employees had already rejected for that very reason. In doing so, lawmakers upheld a long tradition of siding against essential transportation workers, a tradition codified in the Railway Labor Act (RLA) of 1926.

The ability to withhold labor is the backbone of worker organizing; without it, workers have little leverage when negotiating with their employers. Railroad workers should have the right to reject an agreement that does not meet their needs, and the right to strike to secure an agreement they find acceptable. By imposing a contract that workers rejected, lawmakers signaled that they were willing to undermine workers’ rights and health to prop up corporate profits. Media coverage also focused disproportionately on the potential disruption of a strike rather than the ongoing exploitation of those whose labor makes our supply chain possible.

It doesn’t need to be like this. The railroad workers’ fight for better working conditions speaks to the lack of guaranteed benefits and protections for workers in the United States. Rather than intervening to deny workers their most powerful form of leverage, Congress could act to protect all workers by mandating paid sick leave at the federal level. The failed proposal to mandate seven days of paid sick leave was less than half of what unions demanded, though it would have been a significant improvement over railroad workers’ current, effectively nonexistent allotment. Their predicament is the result of a railroad company exemption from an Obama-era executive order that requires most other federal contractors to provide a minimum of seven days sick leave. This is something that could presumably be remedied by the Biden administration without additional action from the legislative branch.

As for legislation, the Healthy Families Act (HFA) would establish a legal right to up to 56 hours (seven days) of annual paid sick time for millions of US workers. Employees would earn one hour of paid sick time for every 30 hours worked, and could use the benefit while caring for themselves or family members. And unlike the now-expired Families First Coronavirus Response Act, which excluded employers with 500 or more employees from paid sick leave requirements, the provisions in the HFA would apply to all employers with 15 or more employees.

Sufficient paid sick leave is something that all workers deserve; the onus should not be on workers to accept unacceptable terms when both their elected officials and their employers fail them. To that end, the Railway Labor Act—a fundamentally anti-worker piece of legislation from what should be a bygone age—needs to be repealed. The labor movement must also build a broad and media savvy coalition, led by people who will aggressively defend workers’ interests. This is especially urgent given upcoming contract negotiations at UPS and ongoing organizing at Amazon, which has now spread to Amazon’s largest air hub.

Railroad workers have labored through the worst health crisis in a century, ensuring America’s supply chains remained intact even as their employers did the opposite. Like millions of other Americans, railroad workers have also gone too long without access to a benefit—paid sick leave—that should be guaranteed as a right. The economic case for sick leave is clear, with evidence showing that it increases employee well-being without increasing costs or unemployment. However, in the absence of a federal paid sick leave policy and without the leverage of a potential strike, railroad workers remain deprived of this necessity. They and all other workers in the US deserve better.


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