The chief justice, employees, employers and coronavirus

A ‘Magazine’ exclusive on Varda Wirth Livne, the woman attempting to hold the workplace world together

Labor courts are dealing with many challenges and crises all hitting at the same time. (photo credit: MARC ISRAEL SELLEM)
Labor courts are dealing with many challenges and crises all hitting at the same time.
(photo credit: MARC ISRAEL SELLEM)
An insurance company had denied a critical treatment to a teenager. Without the treatment, the teenager’s illness would have meant almost certain death by age 20 and relegation to a wheelchair until that point.
Then-regional labor court judge Varda Wirth Livne ordered the insurance company to give the teenager the treatment it had denied. Later, Wirth Livne said that her daughter happened to witness that this cured individual not only survived, but was healthy enough to compete in a physically intense competition. This would never have happened without the medicine – and Wirth Livne’s order.
Today, Wirth Livne is the chief justice of the National Labor Court. She is still doing all she can, within judicial limits, to help the weaker sectors of society.
The full panel of National Labor Court judges, with Chief Justice Varda Wirth Livne (front row, second left). (Credit: National Labor Court Spokesman's Office)
Normally, judges do not interview with the media; they are prohibited from giving opinions about pending legal issues before them. But due to the singular circumstances of the corona crisis, Wirth Livne agreed to sit down with the Magazine to discuss how corona has forever changed the courts and what to expect next. (In the end, the interview took place via Zoom since this writer was temporarily in a last-minute quarantine!)
The coronavirus crisis has transformed every arena of human life. The courts, and the labor courts in particular, are no exception. They may even be a prime example for how to better resolve some of the new complex conflicts and imperfect choices corona has created for society. These courts may also be a place where we can catch snapshots of what might be around the corner in order to better prepare.
In a September 3 speech before the Israel Bar Association, she said, “The global employment sector has encountered one of the most grave and earth-shaking events in recent decades.”
Wirth Livne undoubtedly did not plan on this issue dominating her tenure, but if any judge would be ready to adapt, keep an open mind and be ready to show initiative to do the judiciary’s part in holding society together, she is probably the right person at the right moment.
“We try to bring ourselves to be dynamic in the labor courts,” she told the Magazine.
BORN IN 1957, she graduated from Hebrew University Law School in 1980 and filled a range of private sector positions, eventually rising to key legal positions within the Histadrut labor federation. Her Histadrut years were likely invaluable in learning “in the foxhole” to be a smooth negotiator, excellent practice for when she ascended the judicial throne of president of the labor courts.
In 1989, she was appointed a judge in the Tel Aviv Regional Labor Court. By 2004, she had joined the ranks of the National Labor Court, and in 2018 she became its president.
Sources close to Wirth Livne said the labor courts are careful about mask-wearing and social distancing rules. A much more limited number of lawyers and litigants are permitted into the courthouse and the courtrooms than in the pre-corona era. Sometimes when multiple lawyers from the same law firm come to court, they find that only one of them can actually enter the courtroom. Crucially, this means that judges cannot manage multiple cases in their courtrooms at the same time. This can result in a longer process, with fewer cases getting heard on any given day.
The corona limits are extremely challenging for resolving cases of striking workers where many lawyers and multiple parties may be needed to reach a deal. Sometimes outside neutral experts are also needed to resolve such wide-ranging labor disputes. This adds to the volume of persons who would normally attend a hearing.
Despite the challenges, leading into the second national lockdown, as of the recent interview no labor court judges had been infected with corona. As of the interview, there had also been zero judges quarantined from the National Labor Court. Moreover, there has been only a very minimal amount of quarantining of labor court staff, mostly from the Beersheba Regional Court.
The National Labor Court and the Tel Aviv Regional Labor Courts are also running pilot programs for hearings via videoconference. Some parties praise videoconferencing as the wave of the future to save time, money and inconvenience of travel. During lockdowns, with personal quarantines or people in poor health, it may also be the only way some litigants can be heard in the corona era. But there are always concerns that videoconference can disadvantage some litigants. These concerns spike with less-educated workers who might be going up against a larger and more sophisticated employer.
Blonde-haired and donning black glasses and a blackish-red beaded necklace, Wirth Livne’s view is that hearing witnesses and core parts of a case still generally need to be in court. Mostly videoconferencing would be used to cover a variety of procedural hearings often needed to set up the core parts of a legal proceeding.
In one case that Wirth Livne related to the Magazine, a plaintiff was very sick and had sued the National Insurance Institute within the Haifa district, yet the plaintiff was physically unable to leave his home to travel from his home in the South to Haifa. This plaintiff could not afford a lawyer and was not tech-savvy enough to conduct a videoconference on his own. The secretary of the Beersheba Regional Labor Court paid him a home visit, toting her laptop and “bringing the plaintiff to the hearing” before the Haifa court via videoconference.
“We want people who are very sick and may not have a long time left [living] to get their day in court,” said Wirth Livne.
Compared to some more solemn judges, she smiles frequently and conveys a certain level of warmth. Maybe being a labor court judge, which is on some level much more about humanity and emotions, provides more space to be emotive. At the same time, the moment she is discussing a legal issue, Wirth Livne takes on the more removed and sophisticated air of a chief judge.
While video conferencing is useful in procedural hearings, Wirth Livne feels that hearing witnesses and arguing a case's core parts still should be done in court.
BETWEEN VIDEOCONFERENCING and creative scheduling, the courts have tried not to overuse postponement of hearings as a solution. Another corona dynamic is that the judicial summer recess was reduced from six weeks to three weeks. While this could cause the system some additional stress, judges do not necessarily take vacation during the recess even during normal times as much as they work on their backlog of writing judicial opinions. Even during the first lockdown in the spring, judges invested extensive time in writing decisions.
Wirth Livne sometimes expresses concern to colleagues that as corona continues, the country will see even more people fired or placed on unpaid leave, with spiking unemployment and businesses falling apart. Furthermore, she appears to think that the upcoming wave of economic troubles could come shortly after the current September-October lockdown.
Regarding figuring out how the law could address the extreme situations being created by the corona pandemic, colleagues of Wirth Livne have heard her say that there has never been a situation quite like this one before. On the other hand, she views labor law as a more dynamic area of law with every era being impacted by the socioeconomic trends of the day.
Labor courts have had to deal with complex situations involving third parties and sub-contractors impacting employment relationships in unexpected ways as certain industries advanced, but what was so unusual about corona was the many challenges and crises hitting at the same time.
The chief justice noted, “We can’t just say that the workers are the weak ones,” and move straight into trying to protect them. Many employers “have lost their investments and everything.” Striking the balance between their needs was always hard, but is profoundly complex in the current corona period.
Another issue that was always complicated but has taken on a whole new meaning in the corona era is working from home. There were always difficulties regarding how to measure a worker’s hours and overtime at home. There were also always challenges in setting limits about how early in the morning or how late at night employers could call on employees to work.
But in her September 3 speech, Wirth Livne flagged the issue as being “significantly aggravated and accelerated by the corona crisis.” The chief justice can be heard advocating amending the 1951 law on the issue, which she would view as obsolete.
A proposal she would likely endorse would be having different models of work. Those employees who worked mostly in the office should still be protected from aggressive employers calling them after general work hours. Those employees wishing to work from home might need to be more flexible about working at less traditional hours as long as employers did not abuse them with an excess total of hours.
Protesting the financial situation and lack of governmental aid during corona, in Tel Aviv. (Credit: Tomer Neuberg/Flash90)
ONE MANTRA of Wirth Livne is that labor law exists in the real world and not in an ivory tower.
This is clear from a Tel Aviv Regional Labor Court ruling on May 31. The Ynet website had sent a large number of employees on unpaid leave. Later, it extended the unpaid leave beyond the original target date for returning to work. The workers claimed Ynet had violated the applicable collective bargaining agreement. They said that the first round of unpaid leave was carried out with their consent in light of the sudden corona crisis, yet the second round of unpaid leave was coerced. The workers added that because Ynet did not give them a mandated hearing regarding the unpaid leave issue, the court should immediately return them to work.
The court rejected the workers’ request. It acknowledged that Ynet had failed to follow proper procedure, including granting a hearing, but in light of the scope of the corona crisis, the court said that the procedural issue was beside the point. Further, the court stated that the unpaid leave was still not permanent, which meant that there could not yet have been a violation of the collective bargaining agreement.
With a number of major claims against businesses, the courts have echoed similar messages. Essentially, the courts have held in some cases that if all the employee claims were granted legally, in practice they would get nothing and would lose their place of work.
Regarding the recent teachers’ strike, the court initially convinced them to return to work. Later, the Education Ministry flipped its position and closed schools due to the corona second wave after only two weeks. But the court’s original logic was that if the government felt schools must be open for the benefit of students and to enable parents to work, teachers should not block this. The court took this approach even though it sympathized with teacher complaints that the government’s plan for protecting teachers from corona exposure was insufficient.
A similar compromise was encouraged by the court to resolve a strike by lab technicians who were critical to continuing coronavirus testing.
Both her long years in the labor courts and her time inside negotiations while in the Histadrut have clearly helped augment her natural talent as a dealmaker. Growing serious, the chief justice said, “To be a judge in the labor courts is not like being a regular judge. Labor judges need to know how to get people to cut deals, to convince parties in creative ways – something that makes it more similar to family court. We need to have an approach that goes beyond legal scholarship. What is behind a claim? Often there is a lot of personal emotion. Fired employees say, ‘I gave him [the employer] my whole life!’ Employers say, ‘I taught him everything he knows!’” she explained.
In the background of all of this is the idea that getting fired is the third-biggest disaster in life after death and divorce – and that it takes years to get over.
But negotiation does not always work. Rather, many times the court must decide and set norms. It is a central system for creating social norms every day, sources close to her said. Some social-norm areas that she would likely view as signature issues to impact during her tenure are equality, combating sexual harassment and healthcare rights.
The labor courts are careful about mask-wearing and social distancing rules.
Regarding healthcare, employees come to the courts when their insurance company denies them coverage – for example, if an employee seeks coverage for a medicine or treatment that is not part of the insurance company’s standard list of approved medicines or health benefits.
Back when Wirth Livne was in the regional courts, she heard a case of seven groups against the Maccabi health fund for alleged discrimination. Maccabi said it had given the maximum coverage required for a woman seeking to attempt special fertility treatments. The record shows that Wirth Livne convinced Maccabi to give the woman two more treatments beyond the limit they wanted to impose.
Later, she saw the baby who was born and survived probably thanks to her ruling. Tearing up, Wirth Livne said, “Usually we judges do not know what happens after our ruling. This was one time I will never forget,” because she got to see the amazing good her ruling facilitated.
“Sometimes something beyond the standard coverage can be life-saving, so we feel we are saving lives.”
ANOTHER TRICKY issue in the corona era is whether very extended unpaid leave can activate all the unemployment benefits that being fired activates. The labor court rule is that any unpaid leave must be consensual. If an employee refuses unpaid leave, the employer must either keep them on regularly or fire them and provide the full benefits of a fired person under the law. This does not equalize the balance of power between employers and employees, but it does at least ensure minimum protections for employees even in the corona era.
Sometimes Wirth Livne is asked whether employers can more easily fire pregnant women in the corona era under the guise of pandemic-crisis required cuts. Sources close to her said that employers still need to file a special motion to an expert on women’s rights before firing a pregnant woman, who has discretion to either validate or block the firing. Happily, the sources said that to date there has been no increase in employers improperly firing pregnant women, despite the cover they might think corona could provide. In fact, many thought there would be substantially more cases.
Privacy rights is another area of extra controversy during corona. Under current law, employers have the right to place programs on employees’ work computers to monitor that they are working their required hours. Pressed about the seeming clear violation of privacy rights, her view would be that there are cameras at store cash registers and in other parts of certain workspaces that may record employees in instances where they might have preferred not to be recorded.
The basic idea is that an employee does not need to agree to accept employment from a specific employer with cameras or a monitoring program on an electronic device. But if the employee accepts employment, then they agree to the terms of employment. These terms can include a variety of invasions of privacy (within reason) that the state might not be able to impose on all citizens outside of a workplace context.
To date, there is a rise in labor litigation, but still not a tidal wave. Colleagues of the chief justice said that many workers are still holding on to the hope they will return to their workplace once corona settles down. The chief justice that the future holds more new labor disputes and unions being organized in areas previously were not considered necessary.
The buzzword for employees until recently was the ability to “jump” frequently from job to job to race upward for promotions. Now employees may realize that a secure and steady job is a higher priority. Sources close to Wirth Livne said that what was, is no longer. This means that how human beings envisioned their workplace trajectory before corona has radically shifted – and there is no turning back the clock.
Fortunately, in the midst of this chaos there is a chief justice with experience and vision steering the ship.