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Unemployment and Worker’s Comp

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Interesting take on a provision in the newly proposed Worker’s Compensation Advisory Council (WCAC) bill: https://wisconsinui.wordpress.com/2016/01/15/substantial-fault-and-misconduct-principles-from-unemployment-law-to-come-to-workers-compensation/ 

One of the provisions in the new WCAC bill would allow denial of temporary disability/lost time benefits if a worker is terminated for “misconduct” or “substantial fault.”  These terms will be defined based on unemployment law standards.  Misconduct and substantial fault recently were brought into play with changes to the unemployment insurance laws in Wisconsin.  These legislative changes certainly were employer-friendly, allowing employers a greater ability and opportunity to deny unemployment benefits.

With worker’s compensation poised to adopt this standard for lost time benefit denials, workers definitely could face a rough spot when recovering from a job injury.  If the employer terminates a worker for alleged misconduct or substantial fault, they would be denied unemployment benefits and worker’s compensation benefits–until an administrative hearing is held to determine the legitimacy of the employer’s actions.  The possibility for many worker’s compensation hearings turning into “he said/she said” determinations like in unemployment cases is a strong possibility.

In the bigger picture, all sides must remember that this was a compromised agreed-upon bill by labor and management.  Both sides gained and gave up provisions–this produces the stability in the worker’s compensation system.

 

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Improving Construction Safety – A Path Reducing Unnecessary Injuries And Deaths

Partner Chris Latham Supports Construction Site Safety At City Hall Rally

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

As an attorney who has represented thousands of injured workers in my career, I have seen first hand some of the serious and deadly injuries that occur in the construction trade. Last year I wrote a blog on the construction trades and discussed a report issued by the New York Committee for Occupational Safety and Health (NYCOSH) claiming that while the construction industry employs less than 4 percent of New York’s workers, it claims nearly one-fifth of work-related deaths – making it the deadliest industry in the state. The report went on to mention that half of the fatalities were immigrant workers who did not have the protection of unions. Unfortunately, the past year has not seen any major improvements.    Injuries at construction sites are up 78 percent this year alone and there have been 16 deaths, mostly immigrant, non-union workers.  

The New York Times published an investigation on construction fatalities and noted that an increase in construction and the urgency to finish projects quickly has resulted in shortcuts and inadequate training for workers. Many of these workers have not been properly instructed or lack adequate supervision and are more likely to be injured or killed. The unions maintain that if these job sites were staffed with union trades, there would be a noticeable decrease in injuries and death. Those who are new to the union, called apprentices, work under the supervision of those who are senior and more experienced. While union projects may cost more than non-union jobs, unions point to the increase in accidents and deaths as a direct result of non-union contractors putting profits ahead of safety. 

If you work in downtown Manhattan you probably saw or heard about the Rally for Workplace Safety held on December 10. Thousands of construction workers united in a massive protest outside City Hall calling for safer work sites, better working conditions for construction workers, and union protection.  So many different trades were on site, all with the purpose of calling attention to unsafe workplace issues. My brother in law, a steam fitter who was present during the rally, noted that there was a procession with 17 coffins that represented the 16 who have already died, and one for the next unlucky worker. Before the protest, a hard hat was placed at the site of where each one of these workers perished.

Fortunately, there are some positive steps being taken. Councilman Rory I. Lancman of Queens has introduced a bill to compel the Buildings Department to report safety violations to the Occupational Safety and Health Administration (OSHA). Additionally, Councilman Corey Johnson of Manhattan, on his website noted that he is supporting legislation that would require workers at buildings taller than 10 stories to pass mandatory apprentice training overseen by unions.  

While construction trades will never be 100 percent safe, they most definitely can be safer.  These protests and legislation are a small but positive step in trying to decrease the likelihood of unnecessary injuries and death.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

Tyson Foods’ Injury Incidents Examined Through OSHA Reports

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

As I wrote in a previous blog post, OSHA has decided to make a 90-day regional emphasis on “high-hazard manufacturing industries” in Nebraska, Kansas and Missouri, which are three of the four states in what the Occupational Safety and Health Administrations calls Region 7.*

“The emphasis program focuses on manufacturing industries where injury and illness rates exceed the average for the private sector. Included are manufacturers of the following products: food, furniture, fabricated metal, nonmetallic mineral, machinery, and computer products as well as printing and related support activities,” according to the OSHA news release.

Sadly, this increased inspection effort may have been inspired by some injury incidents recently written about by in an article from the ScienceBlogs website “The Pump Handle: A Water Cooler for the Public Health Crowd” titled “Amputations about at Tyson Foods, OSHA records shed more light on industrial food production.”

Writer Celeste Monforton, who has master’s and doctorate degrees in public health, made a Freedom of Information Act (FOIA) request regarding the federal OSHA regulation that “requires employers to report within 24 hours any work-related incident that results in an amputation or hospitalization,” according to her article. The request asked for data from Tyson Foods, which “has more than 400 facilities in 30 U.S. states, and it processes 35 million chickens, 400,000 hogs, and 128,000 cattle per week.”#

In a nine-month period, from Jan. 1 through Sept. 30, 2015, Monforton discovered 34 reports by Tyson of amputations or hospitalizations.

“The hospitalizations included a worker at the company’s facility in Rogers, AR (Arkansas) who fell 32 feet off of a roof, and a worker in Holcomb, KS (Kansas) who broke his leg while learning to operate a forklift.”

She goes on to write that 17 of 34 incidents were amputations – in a 9-month period – not even over a whole year. The article has a tragic and sobering table that summarizes the amputations, and it is worth clicking to the article to take a look at the table because it includes the month, body part, equipment or tool in use, product (type of plant), city and state involved in each incident.

Here’s a summary of her list that focuses specifically on Nebraska, Missouri and Kansas, where eight of the 17 amputations occurred.

There were four amputations in the Nebraska plants of Lexington (fingertip; and tips of middle and index fingers using band saws in the beef plant), Omaha (ring, index and pinky fingers using the skinner in the poultry plant) and Dakota City (thumb using the sprocket in the pork plant). There were three amputations in the Missouri plants of St. Joseph (both hands using the auger), Monnet (distal portion third finger using the impeller in the poultry plant), and Sedalia (middle finger to first knuckle on the cone line in the poultry plant). The Kansas amputation was in the Emporia beef plant, when the skinner was being used and the end and outside part of a thumb were amputated.

These incidents (and the Kansas forklift-training one mentioned above) may explain OSHA’s new regional emphasis, as Tyson’s meatpacking plants should definitely count as “high-hazard manufacturing industries,” in my opinion.

Though the reports are brutal and tragic, I hope that Monforton completes more FOIA requests to OSHA to track trends, because each of these injury incidents greatly affected someone and their loved ones, whether their lives were changed temporarily or permanently, such as the worker whose hands were amputated in Missouri.

Meanwhile, though I realize it doesn’t cover the same dates as Monforton’s article, Tyson recently released earnings of “record results” for the first quarter of fiscal year 2016, which ended on Jan. 2 of this year, according to the link above.

“‘Fiscal 2016 is off to a very strong start in what we expect to be another record year,’ said Donnie Smith, president and chief executive officer of Tyson Foods. ‘Solid execution across the entire team resulted in record earnings, record operating income, record margins and record cash flows. We captured $121 million in total synergies for the quarter, with $61 million incremental to fiscal first quarter 2015.

“‘Our on-going efforts to invest in and grow our Core 9 product lines are paying off as sales volume for the most recent four week period was up 4%. The Core 9 product lines represent our strongest brands, greatest pricing power and best category growth opportunities and are major contributors to volume and profitability in the retail channel,’ Smith said. The Core 9 is composed of nine retail product lines in the Tyson®, Jimmy Dean®, Hillshire Farm®, Ball Park®, State Fair® and Aidells® brands.”

Though unfortunately, the number of work-related injury incidents isn’t available for the first quarter above, it’s suspected that they’re not much different than any other three-month snapshot of all the Tyson plants. It is a certainty that you can draw your own conclusions about how Tyson values its workers, based on Monforton’s article. It’s worth noting that in a quarter where record profits were had for shareholders, it’s highly doubtful that it was an amputation-free quarter for all workers, based on past performance in Monforton’s article.

In conclusion, I wish the best for OSHA in its quest to focus on “high-hazard manufacturing industries.”

Here’s hoping that the resulting education efforts and inspections mean greater safety knowledge for workers and fewer life-changing incidents, like amputations, that adversely affect workers, their loved ones, and society as a whole.

*Note that Iowa is also in Region 7, but according to OSHA’s website, it’s one of the states that “operate their own OSHA-approved job safety and health programs and cover state and local government workers.” Because Iowa has a state program, I believe that’s why it’s not targeted in this regional emphasis.

#Note that Monforton’s FOIA “does not include information from the states that run their own OSHA program, 10 of which have Tyson operations,” according to the article she wrote that is linked to above.

Daylight Savings: Suggestions to help workers adapt to the time change

Today’s post was shared by Work Org and Stress and comes from blogs.cdc.gov

DaylightSavingsTimeWeb

Spring forward Fall back.

We all know the saying to help us remember to adjust our clocks for the daylight savings time changes (this Sunday in case you are wondering). But, what can we do to help workers adjust to the effects of the time change? A few studies have examined these issues but many questions remain on this topic including the best strategies to cope with the time changes.

By moving the clocks ahead one hour in the Spring, we lose one hour which shifts work times and other scheduled events one hour earlier. This pushes most people to have a one hour earlier bedtime and wake up time. In the Fall, time moves back one hour. We gain one hour which shifts work times and other scheduled events one hour later thereby pushing most people to have a one hour later bedtime and wake up time.

It can take about one week for the body to adjust the new times for sleeping, eating, and activity (Harrision, 2013). Until they have adjusted, people can have trouble falling asleep, staying asleep, and waking up at the right time. This can lead to sleep deprivation and reduction in performance, increasing the risk for mistakes including vehicle crashes. Workers can experience somewhat higher risks to both their health and safety after the time changes (Harrison, 2013). A study by Kirchberger and colleagues (2015) reported men and persons with heart disease may be at higher risk for a heart attack during the week after the time changes in the Spring and Fall.

The reason for these…

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NPR: Is It Fair To Have To Pay Fees To A Union You Don’t Agree With?

Today’s post comes from guest author Kristen Wolf, from Causey Law Firm.

Worth thinking about –  this upcoming SCOTUS decision could have a big impact on unions/union workers.  Reposting from NPR.org. – kw

Listen to the Morning Edition article here:

It’s the showdown at the Supreme Court Corral on Monday for public employee unions and their opponents.

Union opponents are seeking to reverse a 1977 Supreme Court decision that allows public employee unions to collect so-called “fair share fees.”

Twenty-three states authorize collecting these fees from those who don’t join the union but benefit from a contract that covers them.

The decision later this year will have profound consequences not just for the California teachers in Monday’s case, but for police, firefighters, health care workers and other government workers across the country.

To understand what is at stake, here is a primer in how the labor law works in states that have authorized these fees.

If a majority of the public employees at a given site vote to be represented by a union, that union becomes the exclusive bargaining agent for the workers. In California, some 325,000 teachers in more than 1,000 school districts are represented by the California Teachers Association and, to a lesser extent, the California Federation of Teachers.

Of those, 9 percent have not joined the union, but under California law, any union contract must cover them too, and so they are required to pay an amount that covers the costs of negotiating the contract and administering it. The idea is that they reap the bread-and-butter benefits covered by the contract — wages, leave policies, grievance procedures, etc. — so they should bear some of the cost of negotiating that contract.

They do not, however, have to pay for the union’s lobbying or political activities; they can opt out of that by signing a one-page form.

In addition, the state Legislature has carved out certain hot-button matters that are not subject to bargaining at all. Specifically, the union can’t bargain over pensions or tenure.

In 1977, the Supreme Court upheld mandatory fees for non-union members as constitutional. The court said they were justified by the state’s interest in maintaining labor peace and eliminating “free riders” who gain benefits without paying their “fair share.”

But in recent years, five Supreme Court justices have signed on to opinions strongly hinting that they were ready to overturn that precedent. Indeed, Justice Samuel Alito, the author of two key opinions, all but invited the challenge posed by Monday’s case.

The Face Of The Case

Rebecca Friedrichs is the public face of the lawsuit that bears her name. After 28 years on the job, she is currently a third-grade teacher in Buena Park near Anaheim, Calif.

“The union’s supposed financial benefits aren’t worth the moral cost,” she said. “They protect teachers who are no longer effective in the classroom … and they’re more focused on self-preservation than they are on educating little children.”

Friedrichs is a strong opponent of the $650 in yearly fees she says she is forced to pay, arguing that everything the union does is political.

The fees are “used to promote the union’s political agenda,” Friedrichs said, contending that they violate her First Amendment right of free speech and association.

Eric Heins, the current president of the California Teachers Association, counters that what is purely political is the Friedrichs case.

“It’s really about an agenda to weaken and destroy unions,” he said.

Heins added that he in fact got involved with the union because of concerns about teaching — especially No Child Left Behind and its “incessant” testing.

Heins said the union contract has allowed him to advocate for “good teaching” for his students “without fear of retaliation.”

He compares the case against fair-share fees to a group of four people going out to dinner. Three vote for one restaurant, the fourth for another. The group goes with the majority; they enjoy the meal, but when the bill comes, the guy who wanted another restaurant tells his friends, “the rest of you have to pick up the tab” because the restaurant wasn’t my choice.

The Arguments

In the Supreme Court on Monday, lawyer Michael Carvin, representing the challengers, will tell the justices that what are technically called “agency fees” are unconstitutional.

“You’re forcing the employee to subsidize somebody else’s speech,” Carvin said. Negotiating a public employee union contract, he maintains, is different from negotiating one for workers in the private sector.

“When we’re talking about public unions,” he said, “everything they do is inherently a matter of public concern, because every time they get pension, health care and salary benefits, that comes out of the public fisc … so every dollar you spend on health care or salary is a dollar you can’t spend on roads or children.”

Lawyer David Frederick, representing the union, counters that what the challengers are seeking is a free ride on the union’s back.

“No one is precluding the right of teachers to speak publicly about their beliefs concerning merit pay, to lobby the Legislature” or express their views on important issues related to education, he said. “All we’re talking about here is an efficient means for the government to determine what its contract with its workforce is going to be.”

The union and the state of California are on the same page in this case. They say that agency fees give the union the resources to be able to make some hard deals, as they did in California during the Great Recession when they negotiated teacher furloughs and some reductions in pay so that more teachers could keep their jobs.

The union and the 23 fair-share states say that if the court were to overturn its 1977 decision, it would trample on states’ ability to govern their own affairs. And more importantly, it would inevitably weaken unions. They would have to raise dues, pitting those who do pay against those who don’t, and the unions would likely have to dig in their heels unreasonably in negotiating to prove their mettle.

Lawyer Frederick pointed to New York City and state in the 1960s and ’70s, a time when agency fees were not authorized.

There were “literally hundreds of work stoppages in the public sector — we’re talking about the subway system … firemen, police, teachers — who went out on strike,” he noted. “And just one week of a strike of the transit workers in New York could cost a billion dollars to the economy.”

There were on average 20 public-sector strikes a year in New York state in the 15 years prior to the Supreme Court’s 1977 decision. Many of them lasted a month or more and closed down schools and other public services, from senior centers to garbage collection.

Even laws imposing harsh penalties for public employee strikes were ineffective.

But after the Supreme Court upheld agency fees, the state quickly passed a law permitting them, and the rate of strikes plummeted by well over 90 percent to fewer than two per year.

In Monday’s case, the union and nearly half the states urge the Supreme Court not to risk that kind of chaos again.

Politics At Play

The unions have seen the consequences quite recently when Republican-dominated state governments eliminated fair-share fees. In 2012 union membership in Michigan declined by 7 percent, and “free-riding” more than doubled, after the state enacted a public-sector right-to-work law and prohibited school districts from collecting union dues by payroll deduction, according to the Economic Policy Institute, a left-leaning think tank.

But the challengers’ Michael Carvin dismisses such justifications outright:

“The proof is in the pudding. Most states don’t require agency fees. The federal government doesn’t require agency fees. And those unions do fine in that environment.”

But, he added, in a moment of puckish clarity:

“It may impede their ability to become the largest political contributors to the Democratic Party.”

The court’s 1977 decision is so wrong, he contends, that it is time to reverse it.

The union, the state of California, 21 other states and the District of Columbia warn that if that happens, it would unsettle tens of thousands of union agreements across the country, an assertion that Carvin also dismisses.

There is a second issue brought by the challengers — a secondary spear, as it were, aimed at the union’s heart. The challengers contend that the opt-out provision authorized by state law is also unconstitutional.

Under that provision, the union is required to send all nonmembers a one-page form allowing them to check a box and automatically be exempt from sharing the expense of the union’s lobbying and ideological activities. The challengers want to reverse the process, and be automatically exempt unless they opt in. The union contends that would require a far more costly canvassing process.

Both the union and the state argue that the opt-out process is an administrative choice made by the state, and that there is no need to “constitutionalize” it.

Monday’s arguments promise to range from lively to ferocious, with a decision expected by summer.

 

Photo Credit: Mark Ralston/AFP/Getty Images via NPR.org

 

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Is it Illegal to Discriminate Against Me on the Job Because of My Accent?

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Contrary to popular opinion, many immigrants work in professional and white-collar jobs. The explosive growth of immigration to the United States means that more immigrants will work in white-collar jobs in the United States. Since white collar jobs often require verbal communication, immigrants employed in white-collar professions and their employers will increasingly face the question of whether it is legal to discriminate on the basis of accent. 

Most federal and state courts that have addressed the issue believe that it is illegal for employees to discriminate based on accent if that discrimination is tied to nationality. Courts have even gone so far as to state that nationality and accent are intertwined, which means that they take such discrimination seriously. However, courts understand that employers have an interest in clear verbal communication. So what steps should you take if you think you are being discriminated against because of your accent? 

  1. Apply for a promotion for which you are qualified: Discrimination is only actionable if the company takes some action against you. One so-called adverse action is a failure to promote. If you are a trusted and valued employee, a company will often give you a reason why you were not promoted. If this reason is related to your accent, you can often get a decision maker to say as much. Legally, this is considered direct evidence of discrimination.
  2. If possible, reach out to other foreign-born employees in your workplace: If other foreign-born employees are being discriminated against for the same or similar reasons, it makes sense to work with them, as it can show a pattern by the employer. Also, when employees work together to fight discrimination, they are not just protected by civil rights laws, but they are also protected under the National Labor Relations Act.
  3. If possible, contact an employment attorney in your area before you decide to take action:  Every situation is different, and laws vary from state to state. A lawyer can give you tips about how to potentially build a case, can give you advice about actions and tactics to avoid, and can advise you about any legal deadlines that might apply to your potential case.

New Testing Reveals Hidden Dangerous Chemicals in Popular Halloween Costumes and “Trick or Treat” Bags

Today’s post was shared by Jon L Gelman and comes from workers-compensation.blogspot.com

Study Finds Costumes and Party Supplies Sold by Top Retailers Contain Hazardous Additives

(Ann Arbor, MI) — A study released today by the Ecology Center’s HealthyStuff.org project has found elevated levels of toxic chemicals in popular Halloween costumes, accessories and party supplies. The nonprofit Ecology Center tested 106 Halloween products for substances linked to asthma, birth defects, learning disabilities, reproductive problems, liver toxicity and cancer. The products were purchased from top national retailers including CVS, Kroger, Party City, Target, Walmart, and Walgreens.

Media Resources:

“We found that seasonal products, like thousands of other products we have tested, are full of dangerous chemicals,” said Jeff Gearhart, HealthyStuff.org research director. “Poorly regulated toxic chemicals consistently show up in seasonal products. Hazardous chemicals in consumer products pose unnecessary and avoidable health hazards to children, consumers, communities, workers and our environment.”

HealthyStuff.org tested Halloween products for chemicals based on their toxicity or tendency to build up in people and the environment. These chemicals include lead, bromine (brominated flame retardants), chlorine (vinyl/PVC plastic), phthalates, arsenic, and tin (organotins).

Some products contained multiple chemical hazards, including a Toddler Batman Muscle Costume whose belt contained 29% regulated phthalates, 340 ppm tin, and lead in the lining of the mask at 120…

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Status of Workers’ Compensation in the United States

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

For all those concerned about worker’s compensation in our country—which really is all citizens—take a look at this important report on the current status of worker’s compensation systems.  The report, from the Worker’s Injury Law & Advocacy Group (WILG) highlights the scary place where some legislators and big businesses want to take worker’s compensation.

Click here for the report. (PDF)