Monthly Archives: October 2012

Compensation for Secondary Smoke Inhalation

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

Recent article indicates some public health departments are offering incentives to create smoke-free policies in buildings. The idea is to reduce the exposure to second-hand smoke.

While substantial strides have been made in many states to provide both smoke-free public places and smoke-free workplaces, the dangers of secondary smoke inhalation remain. Continue reading

A Video Mission Statement

Last month, Leonard Jernigan sat down with a film crew in Raleigh to make a video for our website. The video is a very short clip (about two minutes) but it gives our firm an opportunity to explain who we are and why we are highly qualified to represent injured workers before the North Carolina Industrial Commission and others in the civil court of justice. We invite you to take a look.

Daytime television seems filled with lawyer commercials and if that helps people get a lawyer, that is okay, because not too long ago attorneys were not allowed to use a public forum to advertise their services, including writing a will or closing a real estate transaction or helping with divorce issues, at reasonable rates. It was a closed shop. The problem created now, however, is finding some way to verify the quality of the attorney. Even though times have changed, we prefer to get most of our clients through the referrals of former clients, family, and friends who know our work and our dedication. We want to keep a small number of cases and we want to do an outstanding job for each client.

We also want potential clients to know more about our firm. Leonard Jernigan is the author of North Carolina Workers’ Compensation Law and Practice (4th Edition) and teaches Workers’ Compensation Law at North Carolina Central University School of Law. He is Board Certified in this field by the N.C. State Bar, and he has practiced in North Carolina for over 30 years. Please watch the video and let us know if we can help you.

Workers’ Compensation Is About Relationships

Today’s post comes from guest author Ryan Benharris from Deborah G. Kohl Law Offices.

Prevention of accidents should be the first step in establishing a successful workers’ compensation system. If an employer were truly concerned about the health and safety of the employee there would be no need for workers’ compensation. Unfortunately the profit motive of the employer sometimes corrupts the process, and shortcuts are taken at work to increase production at an anticipated lower cost to the employer.

Employers need to understand that the human and financial costs of industrial accidents and exposures can be devastating. Injured workers, through the workers’ compensation process, may seek the payment of medical benefits, lost time payments and permanent disability awards.

Hopefully, the relationship between employees and employers can improve, and the workplace can become a safer environment.

Nursing Facilities Have Higher Incidence Of Workplace Injury Than Construction

Today’s post comes from guest author Nathan Reckman from Paul McAndrew Law Firm.

According to the U.S. Department of Labor Bureau of Labor Statistics “Workplace Injuries and Illnesses – 2010” report, the United States is becoming a safer place to work. In 2010, there were 3.1 million non-fatal work injuries reported. This translates to 3.5 injuries per 100 full-time equivalents, a slight decrease from the 2009 rate of 3.6 injuries per 100 full-time workers. The rate of injuries per 100 workers has been decreasing every year since 2002. In 2010, Iowa reported an above average number of work injuries, averaging 4.4 injuries per 100 full-time equivalent workers.

Of these 3.1 million injuries, nearly 76% (2.2 million) of injuries occurred in the service industry. Service jobs make up 82.4% of the labor market. Nearly 24% (0.7 million injuries) occurred in manufacturing industries, which make up 17.6% of the labor market.

Surprisingly, the state owned nursing and residential care facilities workers reported the most injuries at 14.7 injuries per 100 full-time equivalents. The industry with the most reported injuries in 2009, Local Government supported Heavy and Civil Engineering Construction, improved from 12.5 injuries per 100 full-time equivalents to 8.6 injuries per 100 full-time equivalents in 2010.

The statistics are encouraging, but I look forward to the day where there are no fatal workplace injuries, and where workplace safety is a primary concern for all employers and workers.

Wacky Worker’s Comp Week. Stripper Denied Worker’s Comp Benefits

The South Carolina Supreme Court found that an exotic dancer was an “Independent Contractor,” not an employee.

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

What a wacky week in the world of worker’s compensation.

We found that a stripper who was seriously injured by a bullet fired at the club where she was working was not entitled to worker’s compensation benefits because the South Carolina Supreme Court found she was not an employee, but rather a “Independent Contractor.” She had serious intestinal, liver, pancreas, kidney, and uterus injuries, and had her kidney removed – which rendered her unemployable as an exotic dancer. She claimed she was an employee because the club controlled her activities, including telling her when to dance, what music to dance to, and required her to strive to get VIP dances.

In Wisconsin, an employer’s inclination to mis-categorize an employee as an “Independent Contractor” can be tempting: avoidance of payment of worker’s or unemployment compensation premiums, payroll and Social Security taxes, and other employee benefits.

The Court of Appeals disagreed, indicating she decided the manner in which she performed her dances to satisfy the Boom Boom Room Club customers. In Wisconsin, an employer’s inclination to mis-categorize an employee as an “Independent Contractor” can be tempting: avoidance of payment of worker’s or unemployment compensation premiums, payroll and Social Security taxes, and other employee benefits. For many years the Courts and the Commission wrestled with the legal distinction between Independent Contractors and employees. Workers who maintained a separate business and held themselves out to render service to the public were Independent Contractors, if not employers themselves; all other workers were employees.

The legislature clarified the test for determining Independent Contractors status, indicating an Independent Contractor must maintain a separate business with his or her own office equipment, materials and other facilities, and hold or apply for a Federal Employer Identification Number. Seven other specific criteria apply. Any single criterion that rules out many Independent Contractors like the absence of a Federal I.D. Number or filing self-employment tax returns makes alleged “Independent Contractors” employees and covered under worker’s compensation in Wisconsin. Many employers including trucking companies, temporary help agencies, and up to and including exotic dancers are asked to sign Independent Contractor contracts when in fact they really are employees under worker’s compensation.

Figuring Out Your Work Comp And Disability Benefits

Your work comp benefits will not increase with the cost of living.

If you are injured on the job, it is important to know what your potential benefits may be so you can limit your spending accordingly. Benefits are based on your average weekly wage over the previous year. The exact calculation is a little more complicated than just that, but the basic rule of thumb is that benefits are two-thirds of that weekly wage, but there is a cap. For example, if you made $75,000 a year in North Carolina, your weekly wage would be $1,442.31 a week. Two-thirds of that amount would be $961.59.

Can you get that amount in disability benefits while you are out of work? Not in this state.  If your injury was in 2010, the maximum amount was capped at $834.00 ($43,368 a year) which would be a net loss of $608.31 a week ($31,632.12 a year) from your pre-injury weekly wage, and $127.59 less than two-thirds of your pre-injury wage. It’s hard to pay the mortgage when you suffer a wage loss of over $31,000 a year, and get disability benefits that pay closer to 58% instead of 66%.

In many other states the capped weekly amount is much lower than in North Carolina. For example, Continue reading

Wage Theft Is Illegal And Immoral

Kim Bobo

Kim Bobo, the Executive Director of Interfaith Worker Justice and the author of “Wage Theft in America,” recently spoke at Duke Divinity School and then at N.C. Central University School of Law in Durham, N.C. Ms. Bobo, who was awarded the Pacem in Terris Peace Award in 2012 (other recipients are John F. Kennedy, Mother Teresa, and Martin Luther King, Jr.), has a simple reason for the work she does: as a person of faith, she recognizes injustice and seeks to correct it. Wage theft, which is defined as stealing from workers what they have rightfully earned, is not only illegal it is immoral. She is simply trying to get people to do something about it.

In September a $4 million settlement was announced by the Harvard Club of Boston for not paying tips to its staff.

At N.C Central law school, Bobo spoke to students about waiters not getting tips, even though the restaurant collected those tips when the bill was paid, and asked if anyone in the room had experienced that type of theft. Indeed, one student shared a story about working at an exclusive club in South Carolina where that practice was routine. After reporting the problem and getting nowhere, he finally gave up and quit. He is still bitter about it. In September, a $4 million settlement was announced by the Harvard Club of Boston for not paying tips to its staff. Small amounts can add up for the employer.

Bobo gave some action items to the audience that I wanted to share with you.  She said we need to:

  • start recognizing the seriousness of the problem;
  • start getting attention about the problem in order to fix it;
  • stay focused; and
  • if necessary, cross of the lines of our comfort zone.

For more information about Interfaith Worker Justice, go to: www.iwj.org/

 

Factory Fires in Pakistan Are A Painful Reminder Of Safety Oversights

A recent fire at a Pakistani garment factory is reminiscent of the Triangle Shirtwaist factory fire

The fires in two clothing factories in Pakistan on August 12, 2012, where locked exit doors and lack of safety inspections helped fuel the flames of death for over 300 people, has similarity with the Triangle Shirtwaist Factory fire in New York (147 deaths) in March of 1911, and the chicken factory fire in Hamlet, N.C.  (54 deaths) in 1991. Both sites had locked exit doors that trapped workers. Two brothers owned the Triangle factory and two brothers owned the factories in Pakistan. Garment workers jumped to their deaths in New York and workers in Pakistan were forced to jump out of upper-floor windows to try to escape the flames.  It was reported that Punjab province safety inspections were abolished in 2003 to develop a more “business friendly environment,” and the Hamlet factory had never been inspected in 11 years of operation.

The latest news is that the factories that burned in Pakistan were allegedly inspected just weeks before the fires by Social Accountability International (SAI), a nonprofit monitoring group that gets much of its financing from corporations. Western companies (like Gap and Gucci), who make clothes in Pakistan and other countries where the labor is cheap, relied on SAI to give them some peace of mind about working conditions, but the total failure of SAI to do it the job is evident. Either it was sleep walking while doing inspections and just going through the motions, or it was just a front for major corporations.

In the United Sates, as we strive to downsize government in the years ahead, we need to keep in mind that government regulations concerning safety must be enforced. If not, safety everywhere will become an issue  - on the highway, in the products we use and the food we eat – and we may similarly find ourselves, or a family member, trapped in a deadly situation, with no way out.