Category Archives: Government

Q&A With Senior Partner Matt Funk: Mandatory Arbitration, Sexual Harassment Legislation, Scaffolding & More

Senior Partner Matt Funk

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

Matt Funk is the president of the New York State Trial Lawyers Association and is a senior partner at Pasternack Tilker Ziegler Walsh Stanton & Romano. The New York Law Journal recently asked Funk to share his opinions on the U.S. Supreme Court’s recent decision on employment contracts and new laws on sexual harassment and scaffold protection.

Q: Do you think the Supreme Court’s recent decision that employment agreements that ban class actions do not violate federal labor laws will have an impact on workers?

A: The Supreme Court decision is a blatant misinterpretation of labor rights that will ultimately harm workers across the country. Individual workers typically lack the resources to take on major corporations by themselves. Through class-action lawsuits, workers can join together to hold negligent employers and bad actors accountable.

By allowing employers to strip this fundamental right away from workers, the Supreme Court is forcing victims to take reported violations to paid third-party arbitrators, usually from an arbitration firm chosen by the employer, which creates a strong potential for bias. It removes the dispute-resolution mechanism from an independent court, and places it into the hands of decision-makers in the pockets of the accused party, making it difficult to hold employers responsible for misconduct and labor violations.

Q: When did mandatory arbitration clauses really become so entrenched in the agreements and contracts that consumers regularly encounter?

A: Mandatory arbitration clauses have their roots in the Federal Arbitration Act, a law passed in 1925 that granted businesses the ability to resolve disputes outside of the courtroom through third-party arbitrators. The law was designed for business-to-business transactions but over the past 30 to 40 years, the courts have made it easier for corporations to include these clauses in contracts where the individual consumer or employee has no real power to change the contract terms. Eventually, these clauses became par for the course, often cloaked in legalese unrecognizable to the untrained eye.

Consumers often overlook these clauses, unaware of how their rights are being limited until it’s too late to avoid them or take action. The only way to level the playing field, and make sure corporations take consumer safety seriously, is to ban mandatory arbitration clauses in employment and consumer contracts.

Q: What is the association’s reaction to recent sexual harassment legislation passed and signed into law in New York City?

A: The legislation is a major step in the right direction, at a critical moment in the fight for gender equality. Over the past year, women across the country have shared their experiences in the workplace, demonstrating how institutions have reinforced sexism to physically harm and intimidate women, discourage their ambitions, prevent career advancement, and create hostile workplaces.

The City Council recognized that it was imperative to do more than just listen—they needed to act and do something to change the status quo. The legislation will help ensure that all managers and employees are properly trained and educated, creating a foundation for institutional reform that reverberates across businesses and organizations of all stripes in New York City.

Q: I know the association has taken a position on the Scaffold Safety Law in New York. What are the concerns?

A: It’s no secret that construction work is one of the most dangerous jobs in New York. In 2016 alone, 71 construction workers in New York State died in on-the-job incidents, the highest total we’ve seen since 2002. The Scaffold Safety Law is a much-needed source of justice and accountability that is essential to protecting workers and making safety paramount.

Given the risks involved, it’s up to owners and general contractors who have ultimate control over the work site to create a secure working environment, by following safety guidelines and providing proper equipment. When owners and general contractors ignore basic rules and fail to provide adequate gear, they put workers at risk and create tragedies out of sheer negligence and disregard for their employees’ lives.

The Scaffold Safety Law offers workers and their families a way to hold negligent owners and general contractors accountable. In instances where workers are seriously injured or killed as a result of unsafe working conditions, their families are forced to take on the costs of lost wages, medical bills and other impacts that are not adequately covered by workers’ compensation, not to mention the physical and emotional pain that results. The Scaffold Safety Law can help mitigate the financial stresses and devastation facing victims and their families, while delivering them justice. At the same time, it insists that owners and contractors follow safety guidelines and promote worker safety so workers can return home to their families at the end of a hard day’s work.

Q: You’re nearing the end of your term as NYSTLA president. What achievements are you most proud of?

A: Over the last year, I’m particularly proud of NYSTLA’s leadership in expanding and strengthening the legal rights of everyday New Yorkers. Working with a broad network of affected residents and families, advocates, and legislators, NYSTLA has been able to achieve legislative and regulatory victories that deliver justice and practical, meaningful results.

In January, Lavern’s Law was enacted, establishing legal rights for patients harmed by negligent failure to diagnose cancer or a malignant tumor by changing the statute of limitations to reflect the date of discovery. And in 2017, legislation was passed that expands access to SUM auto insurance, promoting better insurance coverage for drivers. Elsewhere on the road, we successfully fought for the implementation of a regulatory framework for ride-share services that is the best in the nation when it comes to protecting consumers, including proper insurance coverage. Not to be forgotten, we also reinforced victims’ legal rights through a bill that allows lawsuits to proceed in the same county where the violation occurred. And, finally, as a workers’ compensation attorney, I am particularly proud of our success working with the labor movement to beat back harmful changes that were proposed that would have gutted the workers’ compensation system.

At the same time, NYSTLA has continued to help young lawyers develop professionally and gain the knowledge they need to make a significant impact through a continuing legal education program that has repeatedly been voted the best in the state.

We believe in leading by example, and our efforts this year serve as a reminder of how the legal community can make a difference on behalf of the public interest.

Experience Of New Virginia Legislator Points To Difficulty Of Multi-State Claims For Injured Workers

Democrat Lee Carter, a democratic socialist, won an election to represent Virginia’s 50th District in the state’s House of Delegates.

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

Lee Carter took a bad experience with a work injury and turned it into motivation to win election to the Virginia legislature last November. But the nature of Carter’s bad experience with his work injury shows why electing true worker advocates to state legislatures may not be enough to protect injured workers.

Carter was a Virginia resident who was injured in Illinois working for a Georgia company. Carter attempted to bring his claim in Virginia but he was unable to do so because of lack of jurisdiction. Tennessee lawyer Denty Cheatham pointed out on the WILG listserv that Carter’s difficulty in bringing a claim was why national standards are needed for workers compensation.

So-called federalization is controversial in the world of workers’ compensation. Workers’ compensation is a creature of state law by what amounts to a fluke of legal history. When workers compensation laws were passed in the 1910s, the Supreme Court held that regulation of workplace safety was outside of the federal government’s ability to regulate interstate commerce but was within the so-called police power of the states.

Two decades later during the New Deal era, the Supreme Court expanded the definition of interstate commerce in the 1930s which allowed Congress to enact laws impacting the workplace such as the Fair Labor Standards Act, Title VII and the Occupational Safety and Health Act (OSHA).

OSHA was implemented in the 1970s as concerns about the adequacy of state-based workers compensation systems arose from organized labor and the civil rights movement. Part of the OSHA Act was a National Commission that called for minimum standards for workers compensation claims. Part of having standardized state laws would mean that state laws would be more uniform and multi-state claims would be easier to navigate for injured workers.

Our firm is part of WILG which is a national organization of workers’ compensation lawyers. Multi-state or multi-jurisdictional claims are probably one of the most discussed topic on the WILG listserv. Mainly lawyers discuss which state’s have the best laws for a particular case. In some circumstances workers can also bring claims in and collect benefits in multiple states. The current system works for knowledgeable lawyers, but it can fail injured workers who may not even be able to bring claim because of questions over jurisdiction.

Multi-state claims can also subvert democratic rule. A worker has some input over workers compensation laws in the state where he or she lives and votes through their respective state legislatures. A worker who is forced to bring a claim in another state does not have that influence unless they happen to be among the 6 percent of private sector employees represented by a union. But even then, it may be burdensome to bring a claim in another state.

But workers have a say over national laws through their Congressional representatives. Minimum standards and some uniformity in state workers’ compensation laws would give injured workers more say in the types of benefits they would receive if they were hurt out of their home state or hurt for an out of state employer. Minimum standards legislation would also draw more national attention to the short coming of various state workers’ compensation laws. Renewed pushes for federal standards for workers’ compensation happened in the early Obama administration and towards the end of the Obama administration. National standards for workers’ compensation legislation will probably have to wait for a change in the partisan makeup of the two elected branches of the federal government.

Saving Our Benefits – How Public Outcry Saved Workers’ Compensation in New York

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

Some of you may recall that injured workers and their families were used as political scapegoats by big business and insurance interests who blamed them for the high cost of doing business in New York.  Workers’ Compensation benefits became an easy target as those who needed these benefits were hardly in a position to fight against the deep pockets and political clout of these lobbying groups.  

As a result of political pressure during New York State budget negotiations, there was a direction to update the existing impairment guidelines under the guise of reducing costs to employers while still protecting injured workers. The final budget contained a provision directing the Workers’ Compensation Board (WCB) to put together a task force with input from labor, the insurance industry, medical providers, and the NYS Business Council to revise impairment guidelines to reflect “advances in modern medicine that enhance hearings and result in better outcomes”.  These impairment guidelines determine the amount of compensation payable to an injured worker for a permanent injury.

Unfortunately for injured workers, the WCB unilaterally revamped and rewrote the guidelines and released them during a holiday weekend with a 45-day public comment period. These proposed guidelines bore very little resemblance to the recommendations made by labor groups and the Orthopedic Society, and were an outrageous abuse of power. As a result of a very public outcry, the New York State Assembly Labor Committee held a public hearing during which it became very clear to labor groups, injured workers’ advocates, and members of the State Legislature that the Board’s egregious actions would result in a slashing of benefits to injured workers at a time when they are most vulnerable.

Public outcry led to action. Workers’ advocates showed up at a number of WCB locations across the state, including Hauppauge, Brooklyn, and Buffalo, for Days of Action. More than 100,000 postcards objecting to the proposed changes were delivered. Members of the Retail Wholesale and Department Store Union (RWDSU), the AFL-CIO, NYCOSH, New York City District Council of Carpenters, DC37, and countless others all publicly railed against these changes. Members of the Legislature called out the WCB for overstepping its authority and for proposing changes that would vastly favor the Business Council over the injured worker. 

The Worker’s Comp Board subsequently issued amended revisions, and while there are still some reductions, it was a significant improvement over the initial version. The final version was released last year on December 29. It is clear that grassroots efforts sometimes do work. Governor Cuomo and the WCB Chair clearly listened, and for that we are grateful. We are also grateful to those State legislators, union groups, and medical providers who submitted their insight on the impact the original proposals would have on injured workers.

Lastly, it is clear that those who may have been past or current recipients of Workers’ Compensation benefits – those who have known injured workers or those who just saw an injustice and wanted to help right a wrong – took the time to make a phone call, send a letter, or sign a petition. The outpouring of support took many by surprise, including those interests that were financed by big business groups.   One of my favorite quotes is from Margaret Mead, an American cultural anthropologist, who said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” Truer words were never spoken.

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.

Is The NEW GIG A New Bargain For Workers?

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

Lost among the din of Twitter feuds and even more serious reporting on tax reform, is attention to a tax bill about gig economy workers that could impact more than just tax policy.

The New Economy Works to Guarantee Independence and Growth Act (NEW GIG Act) essentially allows firms such as Uber to withhold income taxes for workers without that withholding being construed as evidence of an employee-employer relationship. Boston College of Law Professors Shu Yi Oei and Diane Ring perceptively point out that the NEW GIG Act will help define how gig economy workers are classified for purposes of laws that cover employees like anti-discrimination laws, unemployment insurance, wage and hour laws and possibly workers compensation laws. Their argument is that NEW GIG allows companies like Uber to define their workers as contractors within the tax code and that helps creates a presumption of independent contractor status.

Though NEW GIG creates a safe harbor for gig economy companies that collect income taxes, NEW GIG does not abolish the common law test that distinguishes an employee from an independent contractor. The common law test rests on an employer having control over the method and means of work. But the tax code is a critical piece to classification of workers. True contractors are able to deduct their expenses from their taxes because legally they are running a business. Courts hold that when a driver or any other worker is essentially running their own business, they are an independent contractor. NEW GIG uses the tax code to encourage workers to take deductions for expenses and hence self-classify as contractors rather than employees.

Federal employment laws like the Fair Labor Standards Act depend on the so-called common law test distinguishing between contractors and employees. State wage and hour laws, fair employment laws and workers compensation laws may not always rely on those definitions. In cases where a state doesn’t use a common law test to distinguish between employees and contractors, the question would be whether NEW GIG would pre-empt those state lawsNEW GIG does not appear to have an express preemption clause, so courts could tend to uphold state employment laws that would conflict with NEW GIG. Lack of express pre-emption language in NEW GIG may also mean that courts wouldn’t pre-empt state employment laws that rely on the common law test distinguishing contractors from employees. If courts read NEW GIG as just a way for gig economy companies to collect income tax from their workers without creating an employee-employer relationship, then its impact could be muted on state laws and possibly on federal laws.

NEW GIG is sponsored in the Senate by John Thune (R.-South Dakota). Thune has recently criticized Uber for customer data breaches and sexual harassment allegations within the company. Those concerns have been echoed by Senator Mark Warner (D-Virginia) who is a leading proponent of the gig economy. (11) The fact that supporters of the gig economy appear to be questioning the practices of Uber could show the gig economy companies may not have an easy time in fundamentally altering the relationship between companies and their workers.

But Uber is not the only gig economy company and public statements by our elected officials don’t always match up with their actions. Even if NEW GIG is just a tax bill there is power in the perceptions and presumptions that would be created if NEW GIG were passed. Advocates for employee rights would be well advised to keep a close watch over the NEW GIG bills in the House and Senate.

Uber: A Tale of Two Cities

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

While London’s ban of ride-hailing service, Uber, seems poised to continue for the forseeable future, Lincoln, Nebraska may soon lessen formal regulation for Uber drivers.

The Lincoln City Council is scheduled to vote on an ordinance on October 16th that would formally eliminate a requirement that Uber and Lyft drivers pass a physical, background check and test about Lincoln that taxi cab drivers currently have to pass in order to drive a taxi in Lincoln.

According to city officials, this requirement is not currently being enforced. The ordinance has the public support of Mayor Chris Beutler and at-large City Councilwoman Leiron Gaylor-Baird. Supporters of the ordinance cite a decrease in drunken driving from ride hailing as well as a decrease in traffic and increase in downtown parking.

Taxi cab companies state the ordinance lets unqualified drivers on the street and presents unfair competition to traditional taxi cab companies. What hasn’t been eluded to in the debate over ride hailing litigation in Lincoln, but has played more prominently in the London debate, is the fact that ride-hailing companies treat their drivers as contractors which excuses them from paying basic employee benefits like unemployment and workers compensation insurance. This allows services like Uber to undercut traditional taxis on price.

The City of Lincoln doesn’t have a workers’ compensation ordinance. But allowing Uber competitive advantages over taxi cab companies indirectly impacts workers compensation because if Uber takes market share away from traditional taxi cabs fewer drivers will be covered under workers compensation.

Lincoln does a have a human rights ordinance that covers more employees than either state or federal anti-discrimination laws. By allowing Uber a competitive advantage over traditional taxi cab companies, Lincoln is potentially excluding workers from coverage of that ordinance since Uber denies it is an employer. Traditional taxi cab companies are subject to Lincoln’s human rights ordinance.

Many business observers have argued that Uber’s biggest innovation is “regulatory arbitrage.” Regulatory arbitrage is a fancy word for lobbying. Uber hired former Obama advisor David Plouffe. In the United Kingdom, Uber’s chief lobbyist is the godfather to one of the children for former Prime Minister David Cameron. It’s safe to state that a lot of Uber’s supposed innovation stems from old-fashioned lobbying.

Other cities, most prominently Austin, Texas, have attempted to regulate Uber by imposing the same requirements on ride hailing drivers that they do on taxi drivers. Uber was able to successfully lobby the Texas Legislature to pass a state law that preempted municipal regulation of ride-hailing services.

Though the tech sector is regarded by some as an advocate for LGBT rights, Uber was willing to accept an amendment to the Texas preemption legislation that promoted discrimination against transgender individuals.

Department of Labor Weighs In on New Age of Salary Servitude for ‘Executives’

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

Most of the U.S. workforce has the right, provided by the Fair Labor Standards Act, to be paid overtime for working more than 40 hours in a week. Before the federal government set rules for overtime, most employees worked longer hours, and millions of Americans worked six or seven days a week, as Chinese factory workers do today. Salaried workers also have the right to be paid a premium for overtime work, unless they fall into an exempt category as a professional, an administrator, or an executive. Exempt employees must be skilled and exercise independent judgment, or be a boss with employees to supervise. However, many companies have worked to get around these overtime rules by classifying employees like cooks, convenience store employees or restaurant workers as “managers,” “supervisors,” or “assistant managers or supervisors,” so that their employer can deny them overtime under this exception. 

In May 2016, the Department of Labor issued its final rule establishing a new minimum salary threshold for the white-collar exemptions (executive, administrative and professional) under the Fair Labor Standards Act. This new threshold of $913 per week ($47,476 annualized) more than doubles the current minimum weekly salary threshold of $455 per week ($23,660 annualized).  While that may seem like a huge increase, the old threshold level is only $2 a week above the poverty level for a family of four. Twenty-one states have filed suit to challenge this rule, citing the rule will force many businesses, including state and local governments, to unfairly and substantially increase their employment costs. 

The old rule allowed companies to put employees on “salary” at a low rate and require them to work sometimes significant overtime. The fact that so many government entities are concerned about this new rule substantially increasing their employment costs underscores the extent to which even government entities have taken advantage of employees in this fashion. Can you imagine earning $25,000/year and having to work 50, 60 or 70 hours a week? Even at 50 hours a week, that equates to an hourly wage of only $8.01!

In the first year, the department estimates that the new rule may affect, in some manner, over 10 million workers who earn between $455/week and the new $913/week threshold.  

The median worker has seen a wage increase of just 5 percent between 1979 and 2012, despite overall productivity growth of 74.5 percent (Mishel and Shierholz, 2013), according to the Economic Policy Institute. One reason Americans’ paychecks are not keeping pace with their productivity is that millions of middle-class and even lower-middle-class workers are working overtime and not getting paid for it. Before this rule change, the federal wage and hour law was out of date. This change purports to correct this modern day servitude that the law – for the last 30 years – has carved out a huge exception, allowing workers to be taken advantage of simply by assigning them a title and paying them a salary.  

 

Sources:

Medicaid Cuts Will Cause More Nursing Injuries

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

While efforts to repeal the Affordable Care Act and cut Medicaid appear to have stalled for now, any successful effort to cut Medicaid will adversely impact workplace safety for nurses and nurse’s aides.

Studies by the National Institutes of Health show that reductions in Medicaid funding leads to less staffing at long term care facilities and that lower staffing leads to more injuries for nursing employees. Since most nurses and nurse’s aides are covered under state-based workers compensation laws the additional costs of work injuries from Medicaid cuts may not be fully accounted for on a federal level.

At least in Nebraska nursing employees have some ways to protect themselves when advocating for safer working conditions even if they do not belong to a union.

Nebraska has a whistleblower law that applies specifically to health care workers, including nurses. The benefit of this act is that it allows employees to recover for damages similar to what they could collect under the Nebraska Fair Employment Practices Act, including front pay and possibly attorney fees, without having to exhaust administrative remedies. Additionally, health care workers would have four years to bring a suit under the health care whistleblowers law, rather than the much shorter and complicated statute of limitations under the Nebraska Fair Employment Practices Act.

Nebraska has a broad general whistleblower law that allows employees to oppose unlawful conduct by their employers. Nebraska law requires that nursing homes to be adequately staffed. Federal law also requires that employers provide a workplace to be free of recognizable hazard. Inadequate staffing would certainly be deemed be a recognizable hazard in a nursing home. The only drawback to Nebraska’s whistleblower law is the short and potentially uncertain statute of limitations.

Nebraska law would also allow nurses reporting inadequate staffing to be protected from retaliation under a public policy claim that also has a four year statute of limitations.

Will The Supreme Court’s Attack On State Courts Affect Workers’ Compensation?

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

One of the biggest and least understood developments of the current session of the Supreme Court session is how the Supreme Court has undercut the power of state courts to decide cases. This development may also impact the traditionally state law centered world of workers’ compensation.

In Bristol Meyer-Squibb v. Superior Court the Supreme Court held that non-California residents could not join a class action against Bristol Meyer-Squibb in California state court. In Tyrell v. BNSF the Supreme Court held that North Dakota residents could not sue the BNSF in Montana state court in an FELA case.

Despite Bristol-Meyer and the BNSF having a substantial number of employees and doing a substantial amount of business in California and Montana respectively, the Supreme Court held that it would violate due process to subject defendants to litigation in those states. State court litigation should be limited to states where a defendant is incorporated, where they are headquartered or where the events in the case took place..

Bristol-Meyer and Tyrell both rely on the Daimler v. Bauman case that was decided in 2014. In her dissent in Daimler, Justice Sonia Sotomayor wrote that the effect of Daimler was “to shift the risk of loss from multinational corporations to the individuals harmed by their actions.” Essentially Sotomayor believes that the rule that a corporation can be sued in any state court where they have substantial contacts has been repealed. Sotomayor was the lone dissenter in both the Tyrell and Bristol Meyers case.

The constitutional basis for limiting state court jurisdiction is the due process clause of the 14th Amendment. The use of the due process clause to weaken the ability of states to regulate corporate conduct has echoes of the so-called Lochner era where state laws that impeded on contracts were overturned unless they were based on general police powers.

So-called forum shopping gets a bad rap from tort reformers. Terms like “judicial hellhole” have coined by pro-corporate legal advocacy groups. But the ability to pick a forum to  bring a legal case is inherent in a federal system like we have in the United States. Lawyers have a duty to bring cases in a forum where they think it is most favorable to their client. Corporate and management interests also engage in forum shopping. In November business interests persuaded a business-friendly federal judge in Texas to block enforcement of the so-called blacklist rule that would have prevented employers who violated workplace safety and fairness laws from receiving federal contracts.

Workers’ compensation laws were enacted during the Lochner era and were held to be constitutional because they were enacted under state police powers under the 10th Amendment. But the mere fact that workers’ compensation laws were enacted under 10th Amendment authority of the states does not mean corporate friendly federal courts can not find a way to strip states of jurisdiction over certain workers’ compensation claims. This is particularly true for workers who may be able to claim workers’ compensation benefits in multiple states.

In Magnolia Petroleum v. Hunt, the Supreme Court ruled that an employee who was injured in Texas but lived in Louisiana could not claim workers’ compensation in his home state of Louisiana because he had already accepted benefits in Texas. The court held that the Hunt could not collect benefits in Texas because of the full faith and credit clause of the U.S. Constitution.

Justice Hugo Black’s dissent in the case that pointed out that the only reason that Hunt received workers compensation benefits in Texas was signing a form in the hospital after the accident. Black also forcibly denounced the idea that Hunt was double- collecting benefits in Texas and Louisiana for two reasons. First, Louisiana offset the benefits that Hunt received in Texas. Secondly, Black stated “the aggregate of the awards from both states, if added together, would be far less than the total loss suffered by respondent. The Texas allowance scarcely amounts to a “recovery” in the sense of giving full compensation for loss, and has been described by a Texas court to be “more in the nature of a pension than a liability for breach of contract, or damages intact.”

Black’s description of the benefits available to injured workers who could claim benefits in two states is as true as it is now as it was 73 years ago when Magnolia came out.

In Magnolia, Black also drew parallels between how the due process and full faith and credit clauses could be used to protect corporate interests.

“For more than half a century the power of the states to regulate their domestic economic affairs has been narrowly restricted by judicial interpretation of the federal Constitution. The chief weapon in the arsenal of restriction, only recently falling into disrepute because of overuse, is the due process clause. The full faith and credit clause, used today to serve the same purposes, is no better suited to control the freedom of the states.”

Three years later Magnolia was distinguished by the McCartin decision. In McCartin the Supreme Court allowed an employee to collect benefits in Wisconsin who had first collected benefits in Illinois to collect benefits in both states because unlike Texas, Illinois had no laws stating accepting workers’ compensation benefits in Illinois ruled out a claimant from receiving benefits in another state.

In 1980, the Supreme Court applied McCartin in Thomas v. Washington Gas and Light to rule that an injured employee could collect benefits in Washington D.C. and Virginia.

But the decision in Thomas was far from the enthusiastic endorsement of multi-jurisdiction workers’ compensation claims voiced by Justice Black in his dissent in Magnolia. Three concurring Justices criticized McCartin but upheld the award of benefits to Thomas based on the legal doctrine of stare decisis. Two justices, including William Rehnquist, dissented ruling that Magnolia should still govern multi-jurisdictional claims. Current Chief Justice John Roberts clerked for Rehnquist and holds a great deal of respect and affection for his former boss.

Considering how eager the majority of the Supreme Court is to limit the jurisdiction of state courts, I would be very concerned if the constitutional of multi-jurisdictional workers compensation claims were reviewed by the Roberts’ court.