Monthly Archives: September 2013

What’s the Matter With Kansas (a/k/a North Carolina)? – Part 2

In reviewing  workers’ compensation  legislation since 2010,  when the conservative majority took over the government in North Carolina, in Part I it was noted that Deputy Commissioners (administrative law judges) will lose their job security, effective July 1, 2015, and that insurance policies can be cancelled easier to help out general contractors, but what else has been passed?

Previously, if a worker was totally disabled for life he got lifetime disability (recognizing that there is no cost of living adjustment in future years and there is a cap on the dollar amount of  weekly benefits he could get). In 2011 the legislature limited benefits to 500 weeks (9.6 years). Brain injuries and other catastrophic injuries can continue beyond 500 weeks, but if the employee is still disabled and outside these exceptions, what happens? The insurance company is off the hook, and the taxpayer starts paying the price of the injury through social programs. The employer also gets a 100% credit on workers’ compensation for any Social Security retirement benefit the worker may receive. 

An insurance company can now seek an “independent” medical exam, even though the claim  has been denied. If an employee wants to be seen by a physician of her choice to review a permanent disability determination made by the insurance company’s selected physician, she can do so but the Commission is directed by legislation to “either disregard or give less weight to” any opinions that are not related to the impairment issue. The 2011 legislature required the Industrial Commission to review its administrative rules and after spending a year doing so, all but three of the rules were “disapproved” by the 2013 legislature. The process will now start over. The legislature has also made it more difficult for the employee to obtain documents from the employer by legislating that a subpoena for documents shall not issue less than 30 days prior to the hearing date. A process that is supposed to be “as summary and simple as reasonably may be” is now full of traps for unsophisticated employees (and their attorney, if they have one).

Employee Rights Hurt by Supreme Court Decisions

United States Supreme Court

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

Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded. 

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

What's the Matter With Kansas (a/k/a North Carolina)?

What's The Matter With Kansas?In 2004 Thomas Frank, a journalist and historian, wrote a book entitled “What’s the Matter With Kansas?” It detailed the rise of political conservatives who obtained power by using hot button social issues, then passed legislation that worked against the economic interests of the vast majority of the citizens of Kansas. North Carolina has become the new Kansas. Conservative Republican legislators took control in 2010 and a Republican Governor, Pat McCrory, joined them in 2012. What has happened in the field of workers’ compensation with this new majority?

On August 23, 2013 Governor McCrory signed into law new legislation (HB 74) which removed Industrial Commission judges (Deputy Commissioners) from the State Personnel Act, effective July 1, 2015. These judges hear the initial claims of injured workers and in 2015 they will no longer be protected from being hired and fired “at will.” It is quite apparent that political interests will be looking over their shoulders as they make decisions about compensation and medical treatment for injured employees. Most of the public seems to be unaware of this significant alteration of the judicial system as it relates to workers’ compensation claims.

The 2013 legislature made it easier for workers’ compensation insurance companies to cancel policies, and for general contractors to escape liability when they failed to get a certificate of insurance from a sub-contractor. Several appellate cases had previously held that if a green-card receipt from a registered notification of cancellation could not be produced by the insurance company, the policy would still be in effect. If there is no insurance coverage for a seriously injured employee, who picks up the bill? Medicaid, Medicare and Social Security (in short, the U.S. taxpayer) gets stuck. North Carolina, unlike most other states, has no uninsured employers’ fund.  It’s just tough luck for those folks who legitimately get injured on the job but who have an employer who didn’t get required insurance.  An investigative report in 2011 indicated there are as many as 30,000 uninsured employers in this state, yet nothing has been done legislatively or administratively to address this problem.

Since 1929 the overriding principle of the Workers’ Compensation Act in North Carolina has been to provide injured workers with limited benefits, but speedy medical care and a prompt resolution of the claim. However, the system in North Carolina is becoming much more complex, time consuming and expensive, and the tinkering with the system seems never–ending by the conservative majority, which clearly seems to favor big business and insurance interests over the injured worker or the taxpayers who pick up bills that should be covered by insurance. Part II of this blog will discuss other legislative changes made since 2010. Stay tuned.

Workers Exposed to Excessive Temperatures Risk Heat Exhaustion/Stroke

Last year, North Carolina saw breaking heat records at the end of June. The triple-digit temperatures peaked on June 29, 2012 when they reached 105 degrees at Raleigh Durham Airport. The heat was so bad that the interstates cracked under the extreme heat. According to the North Carolina Public Health records, there were approximately 431 heat-related illnesses observed during this heat wave.

Each year, thousands of workers suffer from occupational heat exposure. Heat exposure frequently leads to heat exhaustion. Workers may initially have symptoms such as nausea, headaches, and extreme thirst. Heat exhaustion can progress to heat stroke when the body’s temperature regulation fails. The worker may develop a change in mental status, become confused, lethargic, and may have a seizure. This is a life-threatening condition and emergency medical attention is needed immediately. If not promptly treated, the worker may suffer from heat stroke which can trigger a variety of serious problems, including a heart attack.

According to OSHA, 134 workers died from excessive heat between 2009 and 2011. The report showed that agricultural and construction workers were especially vulnerable since they worked long hours in direct sunlight and were exposed to the environment with little relief. As a result, in 2011 OSHA created an educational campaign to inform employers and workers of the dangers of heat exposure. Currently, however, there is not yet a federal standard to protect workers.

To avoid heat exhaustion, it is recommended that workers exposed to the environment wear loose fitting clothing, drink plenty of water, avoid caffeine, and avoid strenuous activities, if possible, in the middle of the day.

The Vanishing Concept of a Job

Today’s post comes from guest author Jon Gelman, from Jon L Gelman LLC.

While reviewing some historical cases today, I realized that what is missing from the workplace is the concept of “a job.” America’s economy has dramatically changed, and so have jobs that were once available its workforce.

Even clearer is the fact that the concept of a job has disappeared. The idea of getting up in the morning and going regularly to a job has even vanished. The evolution changed slowly with the young generation claiming that a job cycle transformed from a lifetime position to one lasting two years. Then the next stage in the evolution occurred, where the employee became a transient worker and daily the job changed and no stable employer really exists.

This evolution has eroded the underlining framework of a functional workers’ compensation program and the delivery of benefits. The injured worker becomes lost to the system, and a safe and secure workplace becomes an illusion. Lost in the complexity is the adequate reporting of accidents and occupational disease, and the ability to accurately follow the evolution of latent diseases and medical conditions.

“A new trend in the U.S. labor market is reshaping how management and workers think about employment, while at the same time reshaping the field of occupational safety and health. More and more workers are being employed through “contingent work” relationships. Day laborers hired on a street corner for construction or farming work, warehouse laborers hired through staffing agencies, and hotel housekeepers supplied by temp firms are common examples, because their employment is contingent upon short term fluctuations in demand for workers. Their shared experience is one of little job security, low wages, minimal opportunities for advancement, and, all too often, hazardous working conditions. When hazards lead to work-related injuries, the contingent nature of the employment relationship can exacerbate the negative consequences for the injured worker and society. The worker might quickly find herself out of a job and, depending on the severity of the injury, the prospects of new employment might be slim. Employer-based health insurance is a rarity for contingent workers, so the costs of treating injuries are typically shifted to the worker or the public at large. Because employers who hire workers on a contingent basis do not directly pay for workers’ compensation and health insurance, they are likely to be insulated from premium adjustments based on the cost of workers’ injuries. As a result, employers of contingent labor may escape the financial incentives that are a main driver of business decisions to eliminate hazards for other workers.”

Click here to read “At the Company’s Mercy: Protecting Contingent Workers from Unsafe Working Conditions”

Worker Privacy Concerns : Employers’ Access to Employees’ Prior Worker’s Compensation Claims

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

Republican legislators are feeling their oats these days. Throughout the Midwest, legislators are depriving workers of collective bargaining rights and trying to restrict workers’ rights in workers’ compensation claims.

In Missouri, workers’ compensation legislation was recently proposed that would have permitted an employer to provide a potential hire’s name and Social Security number so an employer could identify the potential employee’s prior workers’ compensation claims and the status of those claims. The Missouri Division of Workers’ Compensation estimated an online data base that would include over a half million claim records with over 10,000 records added each year.

To his credit, Democratic governor Jay Nixon vetoed this proposed online data base which would allow businesses to check a prospective employee’s workers’ compensation claims. He said it was “an affront to the privacy of our citizens and does not receive my approval.” As expected, supporters of the workers’ compensation data base (employers primarily) said the legislation would speed the hiring process and help bosses and workers. Regularly, information about workers’ compensation claims is available by written request and takes about two weeks to arrive.  Supporters of the legislation indicated the law was “preventing workers’ compensation abuses.”

Wisconsin’s workers’ compensation records are subject to Wisconsin public records law, except for records identifying an employee’s name, injury, medical condition, disability, or benefits – which are confidential.  Authorized requestors are limited to parties of the claim (the employee, the employer, and the insurance carrier), an authorized attorney or agent, a spouse or adult child of a deceased employee. Workers’ Compensation Division staff may provide limited confidential information regarding the status of claims to a legislator or government official on behalf of a party. In addition, workers’ compensation staff are not permitted by law to conduct a random search to determine if other injuries have been reported.

If the requestor is the same employer or insurance carrier involved in a prior injury, then access will be allowed. If the requestor is a different employer or insurance carrier but they make a reasonable argument that the prior injury and the current injury are related, access may be allowed. For example, the Department considers injuries “reasonably related” if the two injuries involve the same body areas.

Simply put, in Wisconsin, at least for the present, claimant information is confidential and not open to the public, other than to the parties to a current claim.

Do I Need To File A Tax Return On My Workers Compensation?

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

If you received workers’ compensation benefits in 2011, you may be wondering if you will need to report this money to the IRS and pay taxes on it. Under the Iowa Workers’ Compensation Act, money that you receive as workers’ compensation benefits is not taxable, with a few exceptions.

You will have to pay taxes on your work comp benefits if:

  • if the benefits are retirement plan benefits (this is true even if you retired due to disability)
  • if part of your workers’ compensation benefit money lowers the amount you receive from your Social Security or Railroad Retirement Benefits. In that case, that the part of your workers compensation benefits is considered part of your Social Security (or RRB) and may be taxable.

If you return to work, your salary will be taxable again, as is it was before you received workers’ compensation benefits.

Reflections On Apple's Factory Working Conditions

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

Our colleague Rod Rehm shared a great post about Apple’s inhumane factory working conditions in China the other day. It gave us pause because we use Apple products in our business all the time. Whether it’s an iPhone to keep in touch with the office 24/7 or an iPad to help win our clients’ cases in the courtroom, these tools have become an integral part of our lives and the lives of hundreds of millions of people across the world. We hope that through advocacy companies like Apple will improve their working conditions and increase standards of living across the globe.

We also hope that as Apple moves to provide better working conditions for all of its workers and subcontractors, it can repatriate many of its jobs cost effectively. In the video linked in Rod’s post, Jon Stewart points out that right now Apple saves about 20% on the cost of production by outsourcing to China. We, as fans of Apple’s products, would be willing to split the difference with them and pay 10% more for their excellent products if they’d absorb the other 10% and treat their workers humanely.

Here’s Rod’s original post (reprinted with permission):

When Henry Ford invented the Model T, he revolutionized manufacturing and in the process created tons of high-paying jobs for ordinary people. His wealth was shared. When Steve Jobs and Apple invented the iPhone, Continue reading