A22 EZ M2 THE WASHINGTON POST.THURSDAy, MARCH 5 , 2020
BY ELI ROSENBERGA workers advocate faced
pressure to withdraw from an
American Bar Association con-
ference panel on w orker safety i n
the weeks after she helped au-
thor a report critical of Amazon,
a sponsor of the conference,
according to emails obtained by
The Washington Post.
Debbie Berkowitz, a former
federal regulator who now works
for the National Employment
Law Project, received an email in
early December from Jonathan
D. Karmel, a labor lawyer who is
co-chair of the ABA’s Occupa-
tional Safety and Health Law
Committee, asking whether she
would serve on the panel to
balance the views of another
speaker, Heather MacDougall,
who is Amazon’s vice president
of worldwide employee health
and safety. Berkowitz was listed
on a draft of panelists, and she
was told the ABA could pay for
her hotel.
Within a few weeks, she
learned her appearance was
drawing opposition from others
involved in the conference. In an
interview, Berkowitz said
Karmel told her that one of his
co-chairs was concerned her ap-
pearance could upset Amazon.
The emails obtained by The Post
identify the objecting co-chair as
Steven R. McCown, a corporate
lawyer. The emails show that
organizers were discussing
whether they should run con-
cerns about Berkowitz by Mac-
Dougall.
Facing McCown’s opposition,
Berkowitz was asked whether
she wanted to switch panels, and
she declined. Feeling she was
under pressure, Berkowitz with-
drew altogether, she said. (The
person who gave the emails to
The Post did so on the condition
the messages would not be quot-
ed verbatim.)
Amazon — whose chief execu-
tive, Jeff Bezos, owns The Post —
said it was not involved in the
decision, and ABA officials said
MacDougall was never consulted
on the decision. But Berkowitz
said she felt silenced by the ABA
and prevented from speaking
because of her research and
advocacy.
“It’s shocking,” B erkowitz s aid.
The ABA said that despite the
outreach to Berkowitz, she was
never formally invited, some-
thing that would require the
approval of the association’s Oc-
cupational Safety and Health
Law Committee, the 350-person
group putting on the event this
week in Rancho Mirage, Calif.
The ABA did not specify what
portion of the committee decides
whether someone appears on a
panel.
Karmel and McCown declined
to be interviewed but released a
statement via the ABA defending
the decisions.
“None of our speaker selection
decisions were based on whether
any corporate sponsor, Amazon
or otherwise, would be upset
about which speakers were se-
lected for the meeting,” they said
in the statement.
The latest agenda for the panel
discussion includes four people:
Amazon’s MacDougall; modera-tor Ronald W. Taylor, a lawyer
who represents companies on
labor issues; Juan Lopez, a law-
yer with the Labor Department;
and Chrysoula Komis, an occu-
pational health, safety and envi-
ronmental consultant.
Amazon’s sponsorship of the
conference includes a “diversity
reception” on Thursday, and
co mpany executives were slated
to participate on two panels over
its four days this week.
The yearly Midwinter Meeting
brings together a who’s who of
experts on workplace safety
rules, laws and regulations, in-
cluding top lawyers who repre-
sent companies, workers,
unions, judges and federal regu-
lators from the Labor Depart-
ment who are often sponsored to
attend.
It is supposed to be a place for
often-adversarial parties to meet
on friendlier turf than a court or
conference room, attendees said.
“This is a setting where I’ll
have a drink or catch up with a
union attorney or someone I
disagree with vigorously — it’skind of neutral ground,” said
Howard Mavity, an Atlanta law-
yer who represents companies
and attends regularly.
The conference was planned
primarily by three committee
co-chairs, each one meant to
represent a constituency in-
volved in labor law: Karmel, an
attorney from the union and
employee side; McCown, a law-
yer who represents employers
and companies, known as man-
agement side; and Madeleine T.
Le, a lawyer at the Occupational
Safety and Health Administra-
tion.
The report Berkowitz had
worked on, which came out sev-
eral days after Karmel’s invita-
tion, said that 78 percent of
Amazon warehouses have not
received a recent visit from fed-
eral safety inspectors. She said
she hoped to talk about her
report on the panel.
Organizers had tapped Chris
Williams, a lawyer in Chicago
and co-director of the National
Legal Advocacy Network, to
speak instead of Berkowitz, buthe withdrew after finding out
what happened to her.
“I didn’t know that the preem-
inent expert on our side, Debbie
Berkowitz, had been the original
person for that panel,” he said.
“It’s just outrageous to me that
the management side of the bar
is going to tell worker advocates
who they get to put up to provide
voice for these workers and the
dangerous working conditions
they face.”
Berkowitz, who spoke at the
conference in 2016 and 2018, has
earned a reputation as an expert
on ergonomic issues over more
than three decades of work that
has taken her from positions at
unions, including the United
Food and Commercial Workers,
to OSHA.
She developed an early exper-
tise in warehousing by looking at
grocery warehouse w orkers, l ong
before Amazon was the industry
giant it is today.
The report Berkowitz helped
write, “Packaging Pain,” found
that the injury rate at Amazon
warehouses was more than twicethe average for the already-haz-
ardous warehousing industry
and well above rates in danger-
ous industries such as coal min-
ing and logging.
Amazon has increasingly
found itself the focus of criti-
cism, over its size and domi-
nance as w ell as t he conditions i n
its warehouses, as its workforce
has grown.
In response to inquiries about
claims about its injury r ate, Ama-
zon pointed to statements from
federal regulators about how
work-related injuries are often
underreported, suggesting the
injury rate is a result of more
accurate reporting.
“A mazon does the opposite —
we take an aggressive stance on
recording injuries no matter how
big or small which makes com-
parisons difficult,” spokeswom-
an Kelly Cheeseman said in a
statement. “The invitation re-
mains open for anyone to come
take a tour of our sites to see our
safety culture firsthand.”
Jack Rives, the executive di-
rector of the ABA, said in a
statement that the group “abso-
lutely prohibits corporate inter-
ference in the selection of speak-
ers at meetings.”
“That prohibition extends to
preventing sponsors from in any
way influencing information
presented during conference
panels or otherwise,” he said.
Berkowitz said she felt that
what transpired at the confer-
ence this year reflects increasing
corporate influence in govern-
ment more generally.
President Trump has appoint-
ed former lobbyists to his Cabi-
net at a much higher rate than
his recent predecessors, and the
Labor Department is no differ-
ent.
Eugene Scalia, who was ap-
pointed the department’s secre-
tary last year, spent most of his
legal career defending giant
companies such as Walmart,
Goldman Sachs, Bank of Ameri-
ca, Delta Air Lines and Ford,
often in cases against workers
and government regulations.
“I don’t think this would have
been done in the last 20 years,”
Berkowitz said. “We live in a
world now where the guardrails
are off from these powerful peo-
ple that represent rich corpora-
tions. It’s their day. They can do
whatever they want. It’s very
scary.”
[email protected]Ex-OSHA o∞cial feels blowback after Amazon criticism
She faced pressure to
withdraw from panel at
work-safety conferenceJOHANNES EISELE/AGENCE FRANCE-PRESSE/GETTY IMAGES
Orders move down a conveyor belt in February 2019 at an Amazon fulfillment center on Staten Island. A recent report called “Packaging
Pain” found that the injury rate at Amazon warehouses was more than twice the average for the already-hazardous warehousing industry.BY HANNAH DREIERSeeking to end a practice that
one senator called a “profound
betrayal of trust,” legislation was
introduced Wednesday in the
Senate and House of Representa-
tives to stop the Trump adminis-
tration from using confidential
therapy notes against immigrant
children in detention and depor-
tation proceedings. The legisla-
tion is one of several efforts
underway to protect the confi-
dentiality of young asylum seek-
ers launched after The Washing-
ton Post reported that Immigra-
tion and Customs Enforcement
(ICE) has been regularly using
notes from therapy sessions
against unaccompanied minors,
often without the consent of the
therapists involved, and always
without the consent of the minors
themselves.
The Post story focused on the
saga of Kevin Euceda, a Hondu-
ran who was 17 when he arrived
in the United States in 2017 and
was placed in a shelter for immi-
grant children. In a required
meeting with a therapist, he dis-
closed that he had been forcibly
recruited into a gang when he
was 12 years old. He thought the
session was confidential, but his
words were soon shared with ICE
and have been used in repeated
court hearings to argue for his
detention and deportation. He
has been detained for nearly
three years. Last week, the De-
partment of Health and Human
Services (HHS), which oversees
the agency in charge of immi-
grant-child shelters, said what
happened to Euceda “shouldn’t
be happening” going forward,
even as ICE took a step that will
keep Euceda in detention indefi-
nitely.
Professional mental-health or-
ganizations demanded an imme-
diate stop to the information
sharing after it was brought to
light. Last w eek, 41 national orga-
nizations signed a joint letter to
Congress calling for oversight
hearings on the practice, which is
part of the Trump administra-
tion’s stepped-up immigration
enforcement strategy. T he Ameri-
can Psychological Association
said the practice constituted an
“appalling” b reach of privacy, a nd
wrote to HHS and ICE calling it “a
violation of broadly accepted
mental health ethical standards.”
The National Association of So-
cial Workers said it was “an
affront to this country’s basic
principles” of civil rights protec-
tions. The American Counseling
Association warned that thera-
pists risk their licenses by partici-
pating in “an abhorrent viola-
tion” of confidentiality. The
American Academy of Pediatrics
also denounced it.
Many government-funded
shelters are not waiting on con-
gressional action to add protec-
tions for minors in their care.
Among them is the Children’s
Village shelter in Upstate NewYork, whose president, Jeremy
Kohomban, said he was
“stunned” to learn about the in-
formation sharing and immedi-
ately began retraining staff. BCFS
in Te xas, the country’s second-
largest HHS shelter provider, has
created a script for t herapists to
follow, which includes the line, “It
is important for you to under-
stand that not everything you tell
me is confidential.” HHS contrac-
tor Bethany Christian Services
said it was “saddened” to learn of
the practice, and is retraining
therapists to explain to children
that their records will be shared.
At the McAllen, Te x., shelter
where Euceda was first held,
therapists are no longer telling
children their sessions will be
confidential, according to a
spokesperson. The therapist who
signed the report that ICE used
against Euceda and has now re-
signed said through the spokes-person that she had not known
her notes could be shared outside
of HHS.
During congressional commit-
tee hearings last week, HHS Sec-
retary Alex Azar said the admin-
istration is no longer turning over
full clinical files to ICE.
“It was a mistake, we fixed it,
and on a going forward basis it
shouldn’t be happening,” he said
under questioning. In addition to
sometimes sharing children’s
complete files, HHS quietly add-
ed a requirement to its public
handbook for immigrant-child
shelters in 2018, stating that if a
minor mentions anything having
to do with gangs or drug dealing,
therapists must file a report to be
passed to ICE within one day.
Azar said the reporting require-
ment still stands, but therapists
will now report only broad out-
lines of children’s disclosures,
and full notes will not be shared“absent the child’s consent.”
This week, Sen. Ron Wyden
(D-Ore.) and Sen. Elizabeth War-
ren (D-Mass.) wrote to HHS and
ICE saying that “vulnerable, trau-
matized children” cannot give
meaningful consent. Separately, a
dozen senators sent a letter to
HHS in which they called Euce-
da’s experience “astonishing,”
and said at m inimum, “therapists
must stop falsely assuring immi-
grant children” that they have
doctor-patient confidentiality.
On Wednesday, Democrats in-
troduced legislation that would
end the information sharing en-
tirely. The bills, sponsored by
Rep. Grace F. Napolitano (D-Ca-
lif.) in the House and Sen. Jeff
Merkley (D-Ore.) in the Senate,
would ban HHS from sharing
therapy disclosures with ICE to
be used in detention or deporta-
tion proceedings. ICE would also
be banned from requesting thisinformation. “There is a fact find-
ing process for asylum claims.
Don’t inflict further trauma by
lying to a refugee and violating
their trust,” Merkley said.
Also Wednesday, Sen. Richard
J. Durbin (D-Ill.), along with 22
other senators, formally request-
ed an inspector general investiga-
tion into how the Trump adminis-
tration was able to share this
information in the first place.
Amid the new attention on the
case, a federal immigration judge
granted Euceda protection
against deportation, and ICE im-
mediately appealed. It was the
fourth time ICE has appealed an
order that could have granted
Euceda freedom. Judge Helaine
Perlman ruled that under the
1987 United Nations Convention
Against To rture, Euceda cannot
be deported because if he is
returned to Honduras, “it is more
likely than not that the respon-
dent would be delivered to MS-13
and subsequently be killed.” The
Central American gang MS-13
took over Euceda’s house when
he was 12 and forced him to run
errands and sell drugs. Euceda
said in court testimony he fled
when the gang ordered him to
commit a murder, and in 2017,
HHS certified him as a human-
trafficking victim. ICE declined
to comment on why it appealed
the judge’s ruling, citing ongoing
litigation.
Euceda, now 20, will remain
detained in rural Virginia as he
awaits a decision on the appeal,
which is likely to be many months
away. Supporters from around
the country have offered to visit
him, talk to him on the phone,
and send him care packages.
Local psychologists have also
come forward to offer therapy
sessions that would truly be con-
fidential.
“It’s a lot to take in,” Euceda
said, speaking by phone Tuesday
from the detention center for
adult ICE detainees that he’d
been transferred to on his 18th
birthday. He said he is keeping
the letters from readers folded up
beneath his mattress and has
read some to the point of memo-
rization. “These notes have made
me feel so good. They’re going to
be my most valuable keepsakes
when I’m out of this place,” he
said.
[email protected]Bill would end practice of using migrant children’s therapy notes against them
To argue for deportation,
ICE has cited details
from minors’ sessionsMICHAEL S. WILLIAMSON/THE WASHINGTON POST
Honduran Kevin Euceda, 20, has spent more than 1,0 00 days in U.S. custody. He thought a therapy session during his detainment was
confidential, but his words were soon shared with Immigration and Customs Enforcement and were used in court hearings.