Category Archives: Uncategorized

CBC: B.C. Wildfire Smoke Partly to Blame for Washington State Farmworker’s Death

Today’s post comes from guest author Kit Case, from Causey Wright.


By Cory Correia, CBC News
 Posted: Aug 10, 2017

A temporary farm worker has died in Washington state and advocacy groups have blamed poor working conditions, in part due to smoke from B.C. wildfires.

Honesto Silva Ibarra, 28, of Mexico, died in a Seattle hospital Sunday after he became ill last week at the blueberry farm where he worked near Sumas, Wash., just south of the Canadian border. 

An advocacy group, Community to Community Development, said Silva became sick from dehydration, and died after going into cardiac arrest. (Silva used his second name as a surname)

The group’s executive director, Rosalinda Guillen said poor working conditions at the blueberry farm have been aggravated by wildfire smoke that has blown across the border.  

“The workers have been overworked, underfed, have not been hydrated enough, and this has been going on for weeks, and that is what led to the death of Honesto,” said Guillen.

Silva had been working as a berry picker for Sarbanand Farms since the spring. He was married with three children, all of whom are in Mexico.

Guillen said Silva fell ill last week while at work. He went to a local hospital, where Guillen said he suffered cardiac arrest. He was transferred to Harborview Medical Center in Seattle, where he died, the hospital said.

But a spokesman for Sarbanand Farms said Silva’s death was caused by complications from his diabetes. In a statement sent to local media, chief administrative officer Cliff Woolley said one of Silva’s relatives told the company that Silva ran out of medicine but did not tell anyone else.

When Silva fell ill last week at work, the company said it called for an ambulance and he was taken to hospital.

Silva’s illness sparked protests among his co-workers who complained that working conditions at the blueberry farm were unsafe. Nearly 70 workers were fired Saturday after the demonstrations.

Protests continued Tuesday after workers heard news of Silva’s death. 

Meanwhile, Guilllen said other workers have also fallen ill.

“The smoke coming in over our area has aggravated those situations already and caused the workers to say ‘We’re going to die if we don’t do something about this,’ because they were collapsing,” said Guillen.

On Monday, five people were taken to clinics, suffering from advanced dehydration, she said.

Washington state’s department of Labour and Industries is investigating the case, looking into workplace safety factors. It has not decided whether to proceed with a formal investigation. 

Read the rest of the CBC report here…

Photo credit: CBC News

Rolling Back The Rules That Have Made OSHA Effective In Protecting Workers

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

I am regularly surprised in my job.

I recently met with a client who worked in a psychically demanding industrial job who told me that his employer required a supervisor to accompany the employer to the company infirmary. Many supervisors refused to accompany employees to the nurse, so many employees would forgo going to the infirmary.

My jaw dropped when my client told me this.

Last year, OSHA cited a Pilgrim’s Pride Poultry plant in Florida for citation for failure to provide proper medical treatment for their employees. This was the first time such a sanction had been made. In a post last August, I pointed out that Pilgrim’s Pride was sanctioned for not making proper referrals to orthopedist for overuse injury. In the scenario my client described to me, many injured workers were unable to even get first aid for potential work injuries.

Inability to receive basic medical treatment on the jobsite forces employees to seek medical treatment outside work hours. But employees can risk termination if they seek medical treatment outside the plant without notifying their employer. Inability to obtain basic medical care on the job site makes it less likely that employers will log injuries and more likely they can defend workers’ compensation claims for lack of notice.

A year ago, OSHA would have probably been interested in such a scenario. But the Trump Department of Labor is rolling back many workplace safety rules implemented by the Obama administration. Workers may have to look elsewhere besides OSHA for vigorous enforcement of workplace safety laws.

Employees can report potentially unlawful practices like requiring a supervisor to accompany an employee to a nurse’s station to OSHA on their own. At least in Nebraska, this would allow them to pursue a whistleblower claim. But in many instances employees risk termination even a court finds that their employer engaged in unlawful retaliation.

Employees might also be able to pursue wrongful discharge claims based on violations of public policy. The potential problem with these types of claims is often times courts will find that federal law doesn’t create public policy for the purpose of a state law claim. Courts could also find that laws do not create a clear public policy sufficient to create a claim for wrongful discharge.

I am a firm believer in employees working together to address issues in the workplace. So-called protected concerted activity doesn’t involve litigation and is often effective in resolving workplace issues quickly. But again employees take some risks of retaliation. These retaliation claims are sometimes heard by the independent National Labor Relations Board. While the Department of Labor has signaled it will be less responsive to employee interests, the independent NLRB seems to be a more friendly forum for employee grievances against their employers.

What Could You Possibly Know About Your Own Disability?

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

In 1991, the Social Security Administration drafted a rule that explained that controlling weight was given to medical opinions from treating sources about the nature and severity of claimants’ impairments if they are well-supported by medically acceptable clinical and laboratory diagnostic techniques and are not inconsistent with other substantial evidence in the record. This rule is commonly known as the “treating physician rule.”

The SSA has recently proposed a number of changes to this rule based upon a 2013 study (downloadable PDF). Among the recommendations were to no longer apply controlling weight to doctor opinions addressing the following issues:

  • Statements that an individual is or is not disabled, blind, able to work, or able to perform regular or continuing work;
  • Statements about whether or not an individual’s impairment(s) meets the duration requirement for disability;
  • Statements about whether or not an individual’s impairment(s) meets or equals any listing in the Listing of Impairments;
  • Statements about whether or not an individual’s impairment(s) functionally equals the Listings.

The SSA will also not use a diagnosis, medical opinion, or an individual’s statement of symptoms to establish the existence of impairment. A physical or mental impairment would now need to be established by “objective medical evidence.”

It’s easy to understand how discounting a treating source could adversely affect applicants for disability. These physicians have the most interaction with their patients in terms of frequency and duration of involvement. When you contrast a treating physician’s opinion with a doctor chosen by the SSA who most often never even meets or speaks with the claimant, you can see the problem. Putting these two entities on the same footing legally seems misguided at best and purposefully devious at worst. 

However, when you add in that the SSA will not use an individual’s statement of symptoms as a basis for finding disability, particularly in the mental-health field, you make proving disability a much more difficult proposition than it already is. Individuals who are applying for disability typically face difficulty seeing doctors on a regular basis due to obvious financial considerations.  They often cannot afford the “objective” tests to fully explore the extent of their diagnoses. Moreover, there are no objective tests to diagnose depression, schizophrenia, anxiety, etc. The very nature of these claims requires a thorough examination of the claimant’s expression of disability to diagnose, evaluate and treat. The SSA cannot possibly ignore the claimant’s accounts of their disability and do an adequate job of evaluating these claims, especially the ones based upon mental illness. 

The SSA needs to jettison these proposed rule changes, and stick with the controlling weight standard that has been in place for 25 years. Furthermore, they need to allow the judges to evaluate claimant testimony without rigid rules that discount their personal evidence.

To comment on the SSA proposal, follow this link: Regulations.gov – Docket Folder Summary and press the “Comment Now!” button. Comments are due Nov. 8 (next Tuesday, aka Election Day).  

Please contact an experienced Social Security Disability lawyer with specific questions about the details of your case.

Recalling the Forgotten Provision of the ‘Grand Bargain’

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

The Oklahoma and Florida supreme courts both overturned anti-worker changes to their state workers’ compensation laws based in whole or in part on their state constitutions. Workers’ compensation laws, for the most part, are state laws. This post seeks to explain why workers’ compensation laws are state laws and what that could mean for workers’ compensation laws in the future.

The vast majority of workers’ compensation attorneys and industry observers know the term “Grand Bargain.” In the “Grand Bargain,” employees gave up the right to sue their employers in tort for work injuries in exchange for defined benefits regardless of fault.

Workers’ compensation laws emerged roughly a century ago. However, Congress did not have the power to enact the “Grand Bargain” because of how the U.S. Supreme Court interpreted the Commerce Clause. In 1895, the court held in United States v. E.C. Knight that manufacturing was not commerce. In 1918, the court overturned a law prohibiting child labor on similar grounds and additionally held that the effects of child labor did not have enough of an impact on interstate commerce to justify regulation. 

The Supreme Court did uphold the constitutionality of workers’ compensation laws in the case of New York Central Railroad v. White. However, the court upheld workers’ compensation laws based on a state’s so-called “police powers” under the 10th Amendment.

During the New Deal era in the 1930s, the Supreme Court’s interpretation of the interstate commerce clause changed so that workers’ compensation laws could have been enacted by the federal government. But by then, most states had workers’ compensation laws, so a general federal workers’ compensation law was unnecessary.

‘Federalization’ in the Post-New Deal Era

In the 1970s, Congress passed laws regarding occupational safety (Occupational Safety and Health Act) and employee benefits (Employee Retirement Income Security Act) under its authority granted by the interstate commerce clause. But neither OSHA nor ERISA were intended to interfere with state workers’ compensation laws.

The 1970s also saw an ultimately failed effort to impose federal minimum standards on state workers’ compensation. It was in this era that the term “federalization” and the concerns about the impact of federal laws on state workers’ compensation systems emerged.

Federalization re-emerged as an issue in the 2000s when concerns arose that the costs of workers’ compensation injuries were being shifted onto Medicare, and the federal government tried to fashion remedies to shift the cost back onto the workers’ compensation system. The effect of the Affordable Care Act on workers’ compensation was another federal issue that was hotly debated in workers’ compensation circles.

Finally in President Obama’s second term, OSHA issued many rules about medical care and drug testing  that could have affected workers’ compensation laws. Democratic presidential candidate Bernie Sanders and other elected leaders also wrote a letter to the Secretary of Labor pointing out the failure of state-based workers’ compensation systems.

Conventional wisdom is that the election of Donald Trump paired with a Republican Congress will end the Obama era efforts at federalization of the workers’ compensation system. There is probably a fair amount of truth to this idea, but the Trump era may not spell the end of federalization of workers’ compensation.

In the 2010s “sharing economy,” companies such as Uber and Lyft emerged. The business model of these companies is premised on workers being independent contractors. However, this has created litigation and uncertainty for these companies. In 2015, the Democratic-aligned Brookings Institute hosted a discussion about the “reforming” labor laws for companies like Uber. Though workers’ compensation laws are traditionally state-based laws, there is no constitutional prohibition on designing workers’ compensation systems at a federal level. Unfortunately, it seems as some Democrats could find common ground with Donald Trump and House Speaker Ryan to amend ERISA and the Fair Labor Standards Act to exempt Uber drivers and other sharing economy workers from laws such as workers’ compensation. 

PBS: California Reports Thousands of Workers Exposed to Elevated Lead Levels

Today’s post comes from guest author Kit Case, from Causey Wright.

The highest lead levels were found in the blood of people who work with guns and ammunition, according to the California Department of Public Health. 

More than 6,000 California workers in munitions, manufacturing and other industries have elevated levels of lead in their blood that could cause serious health problems, according to a recent report from the state’s public health agency.

The report, containing the results of tests conducted between 2012 and 2014, comes as the state’s workplace health and safety agency, Cal/OSHA, is considering a major update of its safety standards for workplace lead exposure for the first time in decades. The current standards are based on 35-year-old medical findings, which at the time did not recognize the dangers of even low-level exposure to lead. More recent science shows chronic, low-level lead exposure can cause lasting harm.

“It doesn’t surprise me. This is a huge problem,” said Doug Parker, executive director of Worksafe, a worker health and safety advocacy organization based in Oakland. “Clearly, there haven’t been adequate actions taken” by some employers, he said.

READ MORE: 7 things you didn’t know about lead

Lead is a naturally occurring element. The soft gray metal and its various compounds have been used in many products, including pipes, paint, batteries, ammunition, industrial equipment and gasoline. Workers can be exposed to lead in the form of dust, either inhaled or swallowed, or by handling lead-tainted items.

Most public health actions have focused on protecting children from lead exposure and quickly treating those who are exposed, since the metal can severely impair their development.

But adults also can face serious health problems from lead exposure, including heart disease, reproductive problems, cognitive difficulties and kidney failure. Some workers exposed to lead dust in the workplace have unwittingly carried it home on their clothes, exposing their families to it.

The authors of the report examined data from the California Occupational Blood Lead Registry, which tracks workplace exposures. From 2012 to 2014, 38,440 workers had their blood tested for lead, and 6,051 workers were identified with an elevated level of 5 or more micrograms of lead per deciliter (about 3.3 ounces) of blood. Most of these workers were men between the ages of 20 and 59 and had Hispanic surnames. Many lived in Southern California, particularly in Los Angeles, Riverside and San Bernardino counties.

The California Department of Public Health, which released the report last month, did not make an expert available for comment.

About 14,000 of the workers had two or more blood lead tests, which showed about a fifth of them had elevated blood lead levels, according to the report. More than one elevated blood test suggests chronic exposure linked to health problems, the researchers noted.

[Read the rest of the PBS article here.]

Photo credit: LSE Library via Foter.com / No known copyright restrictions

Look To Your Co-Workers Before Your Boss When Trying To Accommodate An Injury Or Medical Condition

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

Employees with an injury or medical condition that prevents them from doing  parts of their job ought to consider asking for help  from their co-workers  first before they talk to management about how to accommodate that medical condition or injury.

Under the Americans with Disabilities Act, and most parallel state laws, a disabled employee and their employer are supposed to engage in an “informal interactive process” to see if the employee’s disability can be reasonably accommodated. The process is supposed to be flexible.

In reality often times the interactive process can be an adversarial process where legal counsel for the employer,  HR,  employee health and risk management bureaucrats attempt to force working people to fill out complicated paperwork and create a paper trail justifying terminating an employee.

But if an employee can work with a co-worker or co-workers to shift and trade tasks that they can’t do because of a disability, then the employee has accommodated their own disability without having to deal with a squad of paper pushers who know little about how an employee actually does their job.

The other thing an employee does when they work with their co-workers to accommodate their own disability without interference from management is that they engage in what is called a “protected concerted” activity. So in addition to having legal protections under the Americans with Disabilities Act, the employee has protections under the National Labor Relations Act (NLRA) as would  their co-workers.

Employees are faced with judges and government agencies who are increasingly sympathetic to management. But workers are re-discovering the power of concerted action. New York taxi drivers struck in protest of President Trump’s proposed Muslim Ban. Workers at Comcast walked out of work in protest of this policy as well.

I realize that many of my prospective and current clients may support Donald Trump and his policies. But regardless of your political views you can still ask for and provide mutual aid and support from your co-workers if you or one of them has a disability that keeps you or them from doing certain tasks on the job. This idea of mutual aid and support for co-workers on the job has long been an important part of workplace rights and will probably grow increasingly important and as courts and government agencies become increasingly supportive of management.

Workplace Safety and the Legacy of Martin Luther King, Jr.

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

“It was horrible,” said the woman.

One minute she could see a sanitation worker struggling to climb out of the refuse barrel of a city garbage truck. The next minute mechanical forces pulled him back into the cavernous opening. It looked to her as though the man’s raincoat had snagged on the vehicle, foiling his escape attempt. “His body went in first and his legs were hanging out,” said the eyewitness, who had been sitting at her kitchen table in Memphis, Tennessee, when the truck paused in front of her home. Next, she watched the man’s legs vanish as the motion of the truck’s compacting unit swept the worker toward his death. “The big thing just swallowed him,” she reported.

Unbeknownst to Mrs. C. E. Hinson, another man was already trapped inside the vibrating truck body. Before vehicle driver Willie Crain could react, Echol Cole, age 36, and Robert Walker, age 30, would be crushed to death. Nobody ever identified which one came close to escaping. 

The horrific deaths of Cole and Walker on Feb. 1, 1968, set off the Memphis sanitation workers’ strike, where 1,300 mostly African-American public employees struck to protest poor working conditions, including the defective garbage truck that crushed Cole and Walker. Martin Luther King Jr. gave his famous “I’ve Been to the Mountaintop” speech in support of the striking sanitation workers in Memphis the night before he was assassinated.

On Monday, Martin Luther King Jr.’s birthday is celebrated as a holiday. But the rightful veneration of Dr. King should not, for the lack of better terms, wrongfully sanitize or whitewash the fact that what he fought for would be opposed by many who invoke his legacy today. The Memphis sanitation strikers are asking for the same thing that striking fast food and service workers are asking for in the Fight for 15 campaign. Most establishment types and so-called moderates in Memphis refused to support the striking sanitation workers. Today’s so-called moderates argue that paying employees a living wage is too radical and counterproductive. History has a way of repeating itself.

Nearly 50 years later, I still represent sanitation workers who are injured from defective equipment. However, bloody crush injuries like the ones that killed Cole and Walker are much less common. Part of the reason for the increase in workplace safety over the last 50 years was the passing of the Occupational Safety and Health Act. Dr. King was willing to risk bodily harm and ultimately ended up being killed supporting workers who were protesting unsafe work conditions. The passage of OSHA is a small but important and overlooked part of Dr. King’s legacy. History is repeating itself again as the business establishment applauds the expected rollback of OSHA enforcement under expected future Labor Secretary Andy Puzder.

Dr. King also deserves credit for his role in passing laws like Title VII that prohibited discrimination against African-Americans, which has allowed an increasing number of African-Americans to join the professional class and otherwise realize their potential as human beings. Dr. King’s legacy can also be seen in the expansion of rights for disabled Americans, and the fact that gays and lesbians are able to get married, and the real possibility that Title VII may end discrimination against lesbian, gay, bisexual and transgender people.

But by some economic measures, African-Americans are worse off now than they were 40 years ago. This fact can likely be attributed to overall increases in economic inequality over the last 40 years. The U.S. Department of Labor pointed out in a recent study that the gutting of state workers’ compensation laws has exacerbated inequality. Lawyers, legislators, academics and pundits have gradually forgotten about the risks faced by workers like Echol Cole and Robert Walker and how civil rights leaders including Martin Luther King Jr. saw the fight for workplace safety as a matter of basic human dignity and integral to the fight for civil rights.

The offices of Rehm, Bennett & Moore and Trucker Lawyers will be closed in observance of the holiday on Monday. We will re-open at 8:30 a.m. Central Time on Tuesday, Jan. 17. We encourage readers to think about Martin Luther King Jr. on the federal holiday and every day and continue to be both motivated and challenged by his words and works.

Workplace Safety Rules Could Be Reversed via Congressional Review Act

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

In 2001, President George W. Bush, a Republican, overturned an Occupational Safety and Health Administration ergonomics rule designed to prevent repetitive stress injuries that was implemented by President Bill Clinton’s Labor Department, as he was Bush’s Democratic predecessor.

Around 16 years later, history seems poised to repeat itself.

A slew of workplace safety regulations regarding beryllium exposure, reporting of injuries, mine safety, and chemical storage implemented by President Barack Obama’s Department of Labor seemed poised for reversal by President Donald Trump’s administration that is eager to rollback Obama-era regulations through the Congressional Review Act.

The Congressional Review Act provides Congress a way to disapprove any regulation within 60 days of it being deemed final. But as pointed out in an explainer piece from the right-wing Heritage Foundation, Congress has 60 legislative days to disapprove a regulation. Sixty legislative days could be six to seven months in real time because of frequent congressional recesses. The act also restarts the 60-day clock for final rules that are implemented within the last 60 days of the previous legislative session. Heritage estimates that rules finalized back to June 3, 2016, could be subject to review.

Supporters of Obama-era workplace safety rules cannot rely on Senate Democrats to filibuster resolutions under the Congressional Review Act because the legislation does not allow for filibuster and has streamlined procedures for allowing legislation to be pulled out of committee.

Fortunately or unfortunately, depending on your perspective, the Congressional Review Act doesn’t allow rules to be bundled together. Congress must consider killing each regulation with a single piece of legislation. This feature of the Congressional Review Act may explain why the Clinton ergonomics rule was the only rule actually killed by Congress under the Congressional Rule Act. Finally, the Congressional Review Act prohibits an agency from proposing a substantially similar rule, which could explain why the Obama administration never tried to revive the Clinton-era ergonomics rule. 

Labor reporter Mike Elk, editor of Payday Report, is one of the few reporters or writers drawing attention to the fact that Obama-era workplace-safety rules are seriously vulnerable to reversal in the Trump administration. Elk’s reporting details how the chemical industry weakened rules on chemical storage after the West, Texas, chemical explosion and how the Obama administration allowed final approval of the rule to be pushed back to where it would be vulnerable to reversal under the Congressional Review Act. In some fairness, delay by OSHA could partially be explained by budget cuts to the agency by congressional Republicans.

I would encourage our readers to monitor this firm’s social-media feeds and my personal Twitter account, @JonRehmEsq to keep track of Congressional Review Act legislation regarding workplace safety. I would urge readers to contact their members of Congress and express their opposition to any proposed rollbacks of workplace-safety rules.