Nike refuses to allow county health inspector into facility after worker dies of COVID-19

Nike refuses to allow county health inspector into facility after worker dies of COVID-19
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News & Politics

Mitt Romney was deservedly castigated in 2011 when, while campaigning for president, he famously declared that “corporations are people, too.” Beyond the sheer tone-deafness of that remark (particularly to Americans just emerging from what then was quaintly regarded as the worst economic crisis in their lifetimes), it ignored the way corporate entities are routinely treated by governments at all levels. To paraphrase F. Scott Fitzgerald, corporations are different from you and me.

In Memphis, for example, the Nike corporation apparently felt comfortable simply shutting its doors to public health inspectors, even after one of its workers died from Covid-19.

As reported by ProPublica:

MEMPHIS, Tenn. — The security guard said no. It didn’t matter that the visitor was from the Shelby County Health Department.

It didn’t matter that she was there to investigate health conditions at a Nike distribution center where, five days earlier, company officials learned a temporary worker had died after testing positive for the novel coronavirus.

On April 16 a public health inspector employed by the Shelby County Health Department responded to a complaint about unsafe working conditions at a Nike distribution center in Memphis. Five days before her visit the company had learned one of its temporary workers had died from Covid-19. She was denied access at the gate, with the the excuse that she didn’t have an appointment. Thus rebuffed, she was forced to leave the premises.

As Wendi Thomas, writing for ProPublica, reports, the inspector was caught off guard. The whole point of public worksite inspections is to determine what conditions are like before the company has an opportunity to clean up its act. In fact, the Shelby county health department had received 201 complaints about various businesses since the outset of the pandemic, and was able to visit every one of them without any “appointment.”

The next day the inspector received a call from an administrator at the facility, who advised her that the company had installed plexiglass shields and painted  floor markings which separated and designated safe distances between Nike employees.

But the county employee was apparently properly intimidated. After Nike assured her that it had been taking measures to ensure social distancing at its facilities, the inspector didn’t go to determine whether Nike was telling the truth. Although she had the power to summon police to accompany her on a walk-through—the county had used that power previously-- she did not follow-up, presumably because Nike is such a big and powerful corporation with such a massive “footprint” in the Memphis area.

In the space of the month that followed a total of twenty one more people employed at Nike’s five Memphis facilities tested positive for Covid-19, more than doubling the number testing positive three weeks earlier.  This suggests that literally hundreds of employees at these facilities may be carrying the Covid-19 virus home with them and into Tennessee’s reopened businesses, bars, gyms, hair salons and restaurants.

As a former OSHA administrator who worked in the Obama administration puts it, in the context of an unprecedented global pandemic, this type of deference shown to corporations is wholly inappropriate in a public health crisis of this magnitude.

“The state and county officials are responsible for protecting the health of the public,” said David Michaels, who worked in the Obama administration.

“The Health Department should know that this virus doesn’t stop at the warehouse gate, that lack of social distancing in the facility will affect not only the workers there, and increase their risk of disease, [but] also their families and the entire community.

Nike corporation (swoosh!) is big business in Memphis, Tennessee. With four of its huge distribution centers in the southeastern part of the city and its largest distribution center worldwide on the city’s north side, the massive corporation has made good use of the $58 million dollar tax break it negotiated in 2012 for that city to enjoy the privilege of being a global hub for its trendy brand-named sneakers and sportswear.

Local governments and Congressmen routinely bend over backwards to attract such behemoths to their areas. In exchange for its massive tax break, Nike agreed to add a whopping 250 full time jobs and “retain” another 1600 persons for its operation in Memphis (a city of over 650,000)  This has gone on for so long that the inherent disparity in status between these “corporate citizens” and the cities that woo them has become implicit and accepted.

Seldom, however, does this disparity intersect with the realm of public health to the degree that has occurred during this pandemic. With the advent of Covid-19 and the patchwork efforts being made throughout the country to contain the spread of the virus, the interplay between corporate privileges with the safety of the public (and the state and local health departments charged to protect that public) has come more and more into focus.

We saw this in South Dakota with the meatpacking giant, Smithfield, forced to shutter when one of its plants became a seething vector for COVID-19, after the virus’s relentless tendrils began inching  into the Sioux Falls population. We see it with Amazon distribution warehouses in New York City becoming hotspots of infection (Amazon in particular seems to have adopted a pugilistic stance towards any criticism of its safety procedures, deploying a ready P.R. apparatus to defend what many characterize as retaliatory actions against those who blow the whistle about the company’s safety conditions during this pandemic).

A Memphis-based Nike executive and member of the city’s Chamber later obliquely acknowledged that it was a “mistake” in refusing to grant access to its facility, and the article points out that the security guard was employed by a third- party company. But the real problem here, as illustrated by the ProPublica article, goes to the tenuous relationship between the public and private enterprise, the inherent weakness of underfunded and understaffed local health departments, and ultimately, to the way each state’s particular political structure treats its corporations.

First, the communications between state and local agencies are often non-existent: as the ProPublica article reports, the Nike facility had already generated a worker complaint about its safety to the Tennessee Occupational Safety and Health Administration (TOSHA), but the state hadn’t shared that complaint with the county. Meanwhile, the county health department was only tracking workplace “clusters” of Covid-19 infection in nursing homes, not other types of businesses.

The complaint that had been filed with state did not prompt an investigation because “no immediate health risk” was alleged (the complaint was recorded as asking for guidance regarding social distancing at the facility). The complaint was marked “closed” and never shared with the county health department. And prior to the attempt to gain access by the Shelby County inspector, the company had briefly closed and conducted what it called a “deep cleaning” of the same center. Still, a month after the county inspector’s failed visit, Nike internally confirmed that 21 of its area employees had tested positive for Covid-19, but neither the state nor the county were made aware of this, as of this week when Thomas’ ProPublica article was published.

That’s not surprising, Michaels said. According to TOSHA regulations, employers are not required to determine whether an infected employee contracted the virus at work in areas where there has been community spread, which would include Memphis and Shelby County.

But as the ProPublica article illustrates, the more insidious aspect of this is that the state itself may, because of its own ideological leanings, adopt a hands-off attitude towards enforcing public health matters, depending solely on who is in charge of government. Thomas again quotes Michaels, who believes the state’s lack of responsiveness and failure to either enforce or upgrade standards in light of this unprecedented threat to workers simply mirrors that of the federal government under the Trump administration:

“It sounds like TOSHA is taking the lead from federal OSHA,” Michaels said. “Rather than leaning forward, they’re leaning back and they’re not actively stepping in and saying how can we best make sure workers are protected.”

OSHA, the federal agency within the Department of Labor charged with ensuring workplace safety has been completely AWOL during the Covid-19 pandemic, refusing to issue a single citation to any businesses for failure to implement safe working conditions to protect employees from the virus. As of mid-May the agency had conducted inspections in response to just 7% of all Covid-19 complaints filed with it.

A spokesman for TOSHA responded to Michaels’ remarks, saying that the Tennessee state follows the same standards that were in existence when Michaels worked for the Obama administration. That ignores the glaring fact that there was no Covid-19 pandemic during the Obama administration, in fact nothing remotely like it, and that had there been a national public health crisis during Obama’s tenure the standards governing workplace safety would doubtlessly have been modified to better protect American workers.

The additional point made by ProPublica is that since most of these workers probably fear for their jobs, the number of complaints that would otherwise come to light is probably a fraction of the reality. But while the workers can make complaints, unless these workers are unionized and have the wherewithal to force state or county action, they have very few other options at their disposal.

And of course, the vast majority of Nike’s low-paid warehouse workers in Memphis, Tennessee have no union.

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