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.

Theodore Roosevelt Pushed For Protection Of Workers

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

Workers’ Compensation benefits are often confusing and seemingly unfair at first glance to many of my clients. As a result, I often find myself explaining to these clients how we, as a country, got to where we are with workers’ compensation laws and why the benefits are more limited than other civil lawsuits.

In explaining work comp laws, I usually give a brief description of the work comp system that was first developed in the early 20th century and a description of the “Grand Bargain”, the premise that employers pay for some benefits of their injured employees in exchange that the employee cannot sue that employer for negligence in civil court.

I, and many scholars, could go on and on about the history of the Grand Bargain and how it was strengthened/reworked in the 1970’s. Also, scholars can (and have), go on about the recent “reform” to workers’ compensation laws that have eroded workers’ rights in domino-fashion in many states by anti-worker legislation.

Nevertheless, I think the most poignant description of why we need to protect workers, and continue to protect workers, is this quote from our 26th president, Theodore Roosevelt, in calling for further reform of laws that Congress passed for employers’ liability laws:

In spite of all precautions exercised by employers there are unavoidable accidents and even deaths involved in nearly every line of business connected with the mechanic arts. This inevitable sacrifice of life may be reduced to a minimum, but it can not be completely eliminated. It is a great social injustice to compel the employee, or rather the family of the killed or disabled victim, to bear the entire burden of such an inevitable sacrifice. In other words, society shirks its duty by laying the whole cost on the victim, whereas the injury comes from what may be called the legitimate risks of the trade. Compensation for accidents or deaths due in any line of industry to the actual conditions under which that industry is carried on, should be paid by that portion of the community for the benefit of which the industry is carried on–that is, by those who profit by the industry. If the entire trade risk is placed upon the employer he will promptly and properly add it to the legitimate cost of production and assess it proportionately upon the consumers of his commodity. It is therefore clear to my mind that the law should place this entire “risk of a trade” upon the employer. Neither the Federal law, nor, as far as I am informed, the State laws dealing with the question of employers’ liability are sufficiently thorogoing.

— Theodore Roosevelt: Sixth Annual Message, December 3, 1996.

Groups Oppose Legislation Aimed to Change Wisconsin’s Advisory Council

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

Wisconsin’s Worker’s Compensation Advisory Council serves as the driving force behind the state’s historically stable and first-rate work comp system.  Wisconsin gets its injured workers back to work faster than virtually all states in the country.  We have extremely low litigation rates (a recent study showed only 13% of work injuries require an attorney).  We have stable and falling work comp insurance premiums–an 8% decrease for 2017.  

These are the marks of a great work comp system thanks to the Advisory Council.

So, of course, some legislators want to blow it up!   This is a classic example of a fix looking for a problem!

Republican legislators recently introduced legislation (AB 308) to drastically alter the makeup of the Advisory Council.  Traditionally, the Advisory Council’s makeup is five management, five labor, and three non-voting insurance members appointed by Secretary of Dept. of Workforce Development (DWD).  After Council deliberations, they produce a biennial “agreed upon” bill, which is then submitted to lthe egislature that, in turn, generally accepts the bill.   As the DWD site proudly prounces:

One of the most important and enduring principles of the Council is maintaining the overall stability of the worker’s compensation system without regard to partisan changes in the legislative or executive branches of government. The Council provides a vehicle for labor and management representatives to play a direct role in recommending changes in the worker’s compensation law to the Legislature.

The 2017 introduced bill proposes to alter only the makeup of the “labor” side of the Council.  The proposal would reduce the amount of organized labor representatives on the Council in proportion to the amount of unionized workers in the state.  

When a hearing occurred last week on this bill in the assembly labor committee, the legislature faced overwhelming opposition to this measure.   A story on WorkCompCentral (Stakeholders Line Up Against Bill Aimed at Reducing Union Role on Advisory Council) detailed that opposition from the system’s stakeholders–including a broad array of the insurance company community.   The insurance companies know that any major change to the Council could create uncertainty in the system.  With uncertainty, there is risk.  With risk, there are increased costs and insurance premiums.

There is no need to change the current Council makeup, especially in light of the beneficial metrics the current system produced–and continues to produce.  The five organized labor representatives continue to be the best representatives–with the broadest expertise and breath of knowledge–for all workers, whether unionized or not.   

We hope this proposed legislation is dead on arrival.  The Advisory Council system works for Wisconsin.  An attack on the Council is an attack on the system’s stability.

 

Groundwater Contamination In Bethpage A Possible Source Of Disability Claims

N.Y. Assemblyman Anthony Saladino (left) and U.S. Sen. Charles Schumer (D-NY) display a map of the spread of a plume of toxic chemicals from Bethpage to Massapequa.

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

Last year news broke that New York was going to test water on Long Island for contamination from toxic groundwater near the old Grumman site in Bethpage, which previously housed the U.S. Navy. Decades ago it was determined that the site was toxic and the Navy and Grumman had spent millions of dollars to clean it up, but despite this, fears remained that there was some contamination that may have seeped from the site into the groundwater.

Governor Cuomo subsequently announced that the Department of Environmental Conservation (DEC) was going to seek financial compensation for damages to groundwater resources related to that contamination. As a transplanted Queens’s native who now lives in Bethpage, the news was troubling to say the least, but it is just one of many examples of a contaminated water supply. The City of Flint, Michigan, made headlines during the last couple of years after dangerous levels of lead were found in the water. The resulting cover-up resulted in a number of lawsuits and criminal indictments.

If these types of examples are startling, then this one will really get to you. We are in the midst of a heartbreaking contamination event involving our service men and women and their families at Camp Lejeune, North Carolina. From the 1950s through the 1980s, people living or working at the U.S. Marine Corps base there were potentially exposed to drinking water contaminated with industrial solvents, benzene, and other chemicals. It is estimated that almost one million people were exposed to contaminated water during this time.

The Veterans Administration (VA) has established a presumptive service connection for veterans, reservists, and National Guard members exposed to contaminants in the water supply at Camp Lejeune from August 1, 1953 through December 31, 1987, who later developed one of the following eight diseases:  adult leukemia, aplastic anemia and other myelodysplastic syndromes, bladder cancer, kidney cancer, liver cancer, multiple myeloma, Non-Hodgkin’s lymphoma, or Parkinson’s disease. These conditions are the only ones for which there is sufficient scientific and medical evidence to support the creation of presumptions. However, the VA will continue to review relevant information as it becomes available.  The presumptive service connection means that all Lejeune veterans with one of the eight conditions listed above will not have to provide documentation proving their conditions were caused by the tainted water.

President Barack Obama approved a $2.2 billion compensation program to pay disability compensation benefits. Disability Compensation is a tax free monetary benefit paid to veterans with disabilities that are the result of a disease or injury incurred or aggravated during active military service. Compensation also may be paid for post-service disabilities that are considered related or secondary to disabilities occurring in service, and for disabilities presumed to be related to circumstances of military service, even though they may arise after service. As many of these conditions develop over time, the veteran may no longer be on active duty. This will not disqualify a claim for compensation. If you or a family member were at Camp Lejeune, it is imperative that you know your rights. They are complicated and often misunderstood, thereby leading our veterans to miss out on benefits they are more than entitled to and definitely deserve. We are awed by our veterans’ commitment to this country and we thank them for their service.

 

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.

Same charge, Second Offense – Jail for Unregistered Contractor

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

SHELTON, WA — A roofer who was criminally charged twice in 13 months for working illegally as a contractor has been sentenced to 15 days behind bars.

Peter Daniel Yeaman, 57, pleaded guilty Thursday in Mason County District Court to a gross misdemeanor charge of unregistered contracting. Judge Victoria Meadows imposed the jail time, and ordered Yeaman to pay $1,000 in penalties and repay his victim $5,000.

The judge required Yeaman to begin serving the jail time no later than Aug. 9. If Yeaman doesn’t comply with the sentence or commits a crime in the next two years, he could face up to 349 more days in jail.

This is the second time the Washington Attorney General’s Office has prosecuted Yeaman based on a Department of Labor & Industries investigation into him and his company, Southgate Roofing, of Belfair.

Cashes check for new roofing job on same day as guilty plea

In the current case, Yeaman was not registered as a contractor when he agreed to reroof a house in Grapeview, south of Bremerton, and cashed a $5,000 check for the job on Nov. 23, 2015.

That was the very same day that he pleaded guilty and was sentenced in an older case on one count of unregistered contracting and one felony count of doing business after his workers’ compensation coverage was revoked. The sentence required, in part, that he not work as an unregistered contractor for two years.

“It’s hard to believe the audacity of this defendant,” said Elizabeth Smith, assistant director of L&I’s Fraud Prevention & Labor Standards.

“This is an especially serious case of someone who knew he was breaking the law for a second time, and chose to rip off a customer.”

In the 2015 case, Yeaman accepted the $5,000 check, and told the homeowner that the job would cost an additional $1,379. He said he would start the roofing job as soon as the rain “let up,” charging papers said.

That was in early December. The rain let up and months passed. The homeowner kept contacting Yeaman, who said in May 2016 that it would be a few more weeks before he could start. The homeowner then contacted L&I.

Multiple civil infractions for unregistered contracting

In the previous criminal case, Yeaman’s company started a roofing job in May 2014, but the owner of that home learned he was unregistered and asked for his money back. Yeaman never repaid him, and the owner hired a registered contractor to finish the job, costing the consumer $4,500 more than anticipated.

Since 2013, L&I has cited Yeaman nine times for unregistered contracting and twice for not obtaining a permit before altering a manufactured home.

L&I suspended his contractor registration in November 2012 for failing to pay his workers’ comp premiums.

He now owes L&I nearly $180,000 for unpaid contracting and safety infractions and workers’ comp premiums and penalties. The department is continuing efforts to collect the debt.

State law requires contractors to register with L&I, which confirms they have a business license, liability insurance and a bond to provide some recourse for consumers if problems arise. It’s illegal to work, offer, subcontract, submit bids or advertise as a contractor without being registered.

Consumers can verify contractor registration online (ProtectMyHome.net).

Note: prior post about Southgate Roofing from July 2015.

 

PTSD in the Aftermath of a Work Injury

PTSD following a work injury can be compensable

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

Recovery from a work injury is more than just the physical aspect.  After bones heal, joints are repaired, and spines are fixed, many workers still face psychological scars from the injury’s impact.  Some workers suffer from post-traumatic stress disorder (PTSD) after a trauma.  Workers with PTSD need to heal psychologically too.

The silver lining is that the Wisconsin workers’ compensation law covers that psychological treatment.  An “injury” under Wisconsin law can be either physical or mental harm from the effects of an injury.  If a worker experiences a psychological diagnosis (and need for treatment) stemming from a traumatic physical injury, the applicable legal standard is the same, as those for a physical injury.  Specifically, the psychological care, and corresponding benefits (for lost time and permanency), is compensable if the physical work injury is the direct cause of the need psychological care or even if the injury aggravated, accelerated, and precipitated a pre-existing psychological condition beyond its normal progression.  (i.e., if the work event made the person’s psychological condition permanently worse).    

A purely mental/emotional stress injury, however, has a different, higher standard.  These are claims where the worker alleges their workplace environment (without a physical injury) causes their psychological condition (examples would inlcude witnessing a horrendous event, a berating supervisor, or an unbearable workload).  In these “mental-mental” circumstances, the worker must meet the extraordinary stress test–showing their experience was greater than the day to day emotional strains all workers must undergo.   Suffice to say, this is a tough standard for most workers to meet, making these claims difficult to pursue.

In stark contrast, if a worker suffers a physical injury and then begins to experience PTSD, such claims and medical treatment expenses generally are compensable–if the psychologist or psychiatrist provides their support.   Medical support for the psychological condition and care is key.

A recent article in the Milwaukee Journal Sentinel offers excellent insight for PTSD sufferers following a traumatic incident: Life After a Car Crash: Could You Be Experiencing PTSD?  In the article, Dr. Terri deRoon-Cassini seeks to spread awareness of the prevalence of PTSD symptoms and need for treatment after an accident.  She offers a litany of specific symptoms that individuals may experience in their post-injury recovery, including:

  • intrusive flashbacks/nightmares
  • avoidance behaviors
  • hyper-arousal, or
  • negative mood/thinking.

More importantly, Dr. deRoon-Cassini higlights the need for proper and timely psychological care–along with the ability to achieve a positive recovery. 

Workers can receive compensation during their psychological recovery, as well as vocational benefits if their psychological limits do not allow a return to their pre-injury employment.   No matter what, injured workers need to be aware of their psychological/emotional state and to not be afraid to get the needed psychological care.

“They have a mosque in small town Nebraska?”

Islamic Center of Omaha

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

I spent a lot of time in rural Nebraska, so I have enjoyed following Chris Arnade’s tour of the forgotten parts of rural America. His tweets are a highlight of a Twitter feed filled with self-promotion and nasty bickering.

On July 3rd, Arnade made it to Nebraska and stopped in a place I know fairly well, Lexington, Nebraska.

Lexington is home to Tyson beef packing plant that employees roughly 3500. I have been travelling to Lexington since 2006 to represent clients who have been hurt at Tyson and other employers. My father Rod, has been doing the same thing since about 1990.

Like many other outside observers of Lexington, Arnade’s attention was drawn to the presence of a large Somali community in Lexington Arnade and other commenters immediately drew the connection between the Tyson plant and the Somali population. Comments about the Somali population in Lexington broke down into three categories:

  1. Vile racist alt-right comments.
  2. Comments from “locals” like me that amounted to “This isn’t news to us” but that were sympathetic towards immigrants.
  3. Comments that were generally sympathetic to the immigrant population made by commenters from coastal and urban areas.

The first group of comments doesn’t deserve a response. The more sympathetic comments from urban areas do deserve a response. Underlying the well-intentioned sympathy for immigrant meat packing workers in rural areas is an assumption that these immigrants are doing work that native-born workers refuse to do.

This assumption is not true. I can argue this anecdotally because I have represented several native-born Americans in meat packing cases over the years. But there are other explanations of why meat packing plants in rural areas hire a substantial number of immigrants.

The first reason is population. Rural areas have a difficult time finding employees to fill highly-paid professional jobs. Meat packing doesn’t pay particularly well and is notorious for being hazardous. A combination of dangerous work and a small population base makes even good paying jobs difficult to fill. As an example, Nebraska placed a maximum security prison in rural Tecumseh, Nebraska in 2001. The combination of dangerous work and the lack of nearby workers has contributed to chronic staff shortages at Tecumseh. Large meat packing plants in rural areas need more labor than those rural areas can provide on their own. Immigrants help fill the need.

Meatpacking plants also draw in native born workers for urban areas. I recently represented a man from Denver whose wife was from New York City who worked at a packinghouse in rural Nebraska. His family didn’t want to move to an urban area because of crime and a higher cost of living. My client is representative of many former urbanites who have moved out of cities into urban areas. Much attention has been drawn recently to the drastic decline of the African-American population in Chicago. The decline is attributed to crime, the cost of living and lack of jobs in Chicago. Again, anecdotally, I have represented several transplanted Chicago residents in Nebraska workers compensation claims over the years. Former Chicago residents are making their home in rural Nebraska for the same reasons that immigrants are: lower cost of living and the availability of jobs

Despite the overwhelming evidence that native born employees are willing to work in meatpacking, the myth that only immigrants work in meatpacking is persistent. The persistence of this myth rests on several assumptions. The first assumption is based on a romantic notion about manual labor, usually spread by people who never had to support themselves by manual labor. Nebraska Senator Ben Sasse is a prominent proponent of this myth. The myth is something along the lines of people are is soft “too soft” and some hard work will just toughen you up. This myth can deflect legitimate concerns about workplace safety into wimpy and politically correct griping.

An even more insidious basis for the myth that native born Americans won’t work in meatpacking is scientific racism. Scientific racism is the belief that certain ethnic groups are better at some tasks than others. When urban liberals state “Immigrants do the jobs that natives won’t do” they probably don’t mean that there is something inherent in the DNA of Latinos and east Africans that allows them to not to get bi-lateral carpal tunnel and epicondylitis from trimming 3000 briskets over an 8 hour shift. But there is an assumption that immigrants are willing to tough it out while native born workers can’t. This isn’t true. Lots of immigrants can’t handle the physical demands of meatpacking working, but some can. The same goes for native born workers.

Another reason for the myth that native born workers won’t work in meatpacking is the subtle bias of those who report on working conditions in the meatpacking industry. Much of what America knows about meatpacking in rural America is reported by urban journalists like Arande or Fast Food Nation author Eric Schlosser. You almost get the impression that when journalists like Arande see an east African restaurant paired with a Hispanic clothing store in rural Nebraska they feel some intense wave of nostalgia for some idealized crime free but non-gentrified urban neighborhood free of hipsters and artisan cheese shops.  The shock when a journalist happens upon a mosque and African restaurant in rural Nebraska overwhelms the larger story about the impact of meatpacking on the labor force in rural America.

Arnade has gone out of way his way to be fair to rural residents. However not all writers share Arnade’s fair-minded attitude towards rural Americans. In December, liberal commentator Markos Moulitsas wrote that people should be glad that coal miners who voted for Donald Trump were going to lose their health insurance. Coal mining is probably as hazardous a job as meatpacking. But to an urban liberal audience, immigrant meat packers deserve sympathy for working in a dangerous job, but Trump-supporting native born coal miners who work in an equally hazardous job deserve contempt.

The ugly sentiments expressed by Moulitsas found a more hideous expression from New York Times columnist Bret Stephens. The toxic Tory “joked” that the U.S. should deport native born working class people, but that nobody would want them. Stephens “ironic” comments draw an eerie parallel with the ironic racists of the alt-right. it’s disturbing that a so-called liberal publication would give this jerk a bi-weekly forum.

The ugliness of Bret Stephens class prejudice follows from well-meaning assumptions that native born Americans will not work in industries like meatpacking. There is a shared assumption that immigrants have particular virtues and native-born Americans have particular vices and defects. These misconceptions fuel resentments and backlash that opportunists can exploit.  A better understanding of the workforce in rural areas will help honest-minded people overcome views that help perpetuate anger that works to undercut rights and benefits of all workers regardless of race or citizenship status.

BBC News: Wisconsin Company to Microchip Employees

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

This BBC News article has popped up all over the internet and I couldn’t resist sharing it here, as well. – kc

A Wisconsin company is to become the first in the US to microchip employees.

Three Square Market is offering to implant the tiny radio-frequency identification (RFID) chip into workers’ hands for free – and says everyone will soon be doing it.

The rice grain-sized $300 (£230) chip will allow them to open doors, log in to computers and even purchase food.

And so far, 50 employees have signed up for the chance to become half-human, half-walking credit card.

But far from being some sort of dystopian nightmare, Three Square Market’s Patrick McMullan believes everyone will soon be wanting their own microchip.

“The international market place is wide open and we believe that the future trajectory of total market share is going to be driven by whoever captures this arena first,” Mr McMullan said.

The company, which provides self-service “micro markets” to businesses around the world, was inspired by the micro-chipping already taking place in Sweden, where so-called “bio-hackers” have been inserting the tiny devices into willing participants for at least three years.

Three Square Market are even working with a Swedish company, BioHax, to deliver the new technology, which they see as one day being simply another payment and identification method – only instead of a credit card or phone, there would be a microchip between your thumb and finger.

But how did employees react?

While a large proportion of the world might think twice before putting a tiny chip in their hand, it seems those at Three Square Market had no such worries.

Out of 85 employees at the company’s head office, 50 have come forward, vice-president of international development Tony Danna told the BBC.

Can they be tracked?

“That is going to be the inevitable reaction,” Mr Danna acknowledged.

“But there is no GPS tracking ability to it. It is really the same thing as the chip that is in your credit card.”

How does it go in – and how do you get it out?

The entire point of the chip is convenience, Mr Danna explained.

Eventually, he hopes it will replace everything you might have in your wallet – from your key fob to your credit card and ID. For now, it is just aiming to make life easier for those using Three Square Market’s facilities.

But the convenience also stretches to installing and removing the chip.

“It takes about two seconds to put it in and to take it out,” he told the BBC. Putting it in is “like getting a shot” using a syringe, while taking it out it like removing a splinter.

“Easy in, easy out,” Mr Danna said.

What if you get robbed?

Like everything in life, it could happen.

But, says Mr Danna, at least it is all in one place, making it easier to cancel all those cards.

Photo credit: kuhnmi via Foter.com / CC BY