Monthly Archives: January 2014

What Both Sides Miss in the ‘Duck Dynasty’ Debate

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

Comments made by “Duck Dynasty” star Phil Robertson, in an interview with GQ magazine, have set off a social media and cable news firestorm about the role of free speech in the employee-employer relationship. But neither side in the Duck Commander debate is telling the complete story. In short, while private employees do not have First Amendment protections in the workplace, Title VII provides some protections for religious belief and practice in the workplace.

Duck Commander detractors are correct to point out that the First Amendment does not apply to private employers* like A&E Networks and that employers are free to fire employees at will.* But what the largely urban, progressive and educated Duck Commander detractors largely fail to realize is that religion is a protected class under federal anti-discrimination law.

Conservative, evangelical Duck Commander supporters also fail to realize that federal anti-discrimination laws protect them as well. In the case of Ollis v. HearthStone Homes, an evangelical Christian successfully sued his employer for discrimination and retaliation for firing him in retaliation for failing to participate in “New Age” religious practices. The Ollis decision gives a good guide on what constitutes religious discrimination:

To establish a prima facie case of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of such conflict, and (3) suffered an adverse employment action. If the plaintiff establishes these elements, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the plaintiff to show the reason offered by the employer is pretextual. 

Assuming that Robertson was an employee, it might be difficult to argue that his religious beliefs conflicted with an employment requirement. Even if he could make that argument, his employer could argue that how he expressed his comments about gays could be legitimate reason for termination. Finally, regardless of Robertson’s comments about gays, his comments about race relations in the South could likely provide any employer with a legitimate reason for termination.

 

*Robertson is likely not an employee of A&E Networks and likely has an a contract with A&E so Title VII is probably not applicable in this case

Why Injured Workers (and their lawyers) Should Care About Unemployment Compensation Changes

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

Eligibility for Unemployment Compensation in Wisconsin will change substantially in 2014.  For more than 70 years, an employee would only be found ineligible for Unemployment Compensation if he quit a job or was found guilty of “misconduct”.  Misconduct was defined under a 1941 case as “willful or wanton disregard of an employer’s interest.”  Mere inefficiency or unsatisfactory conduct or failure in good performance as a result of an inability to meet job expectations was not misconduct.

As a result of the aggressive efforts of Republican lawmakers (who ignored “agreed-upon” bill proposed by the non-partisan Unemployment Compensation Advisory Council) many workers will be deemed ineligible for Unemployment Compensation benefits. 

A new basis for disqualifying workers from receiving Unemployment Compensation benefits will be called “Substantial Fault” which may include a series of inadvertent errors made by the employee and violations of work requirements after the employer warns the employee about the infraction.

In addition, a series of situations in which a voluntary resignation would not disqualify a worker from benefits have been severely restricted. 

In the worker’s compensation arena, if an employer terminates an employee because of a work injury, or unreasonably refuses to rehire the employee after a compensable work injury, a penalty of up to one year of wages applies.  The purpose of the statute is to prevent discrimination against employees who have previously sustained injuries, and if there are positions available within the injured employee’s restrictions, to assure that the injured person goes back to work with his former employer.  This statutory protection is an exception to the general rule of “at will” employment in Wisconsin – where an employer can hire, fire, and make employment decisions for any reason or no reason at all except for a discriminatory reason defined by law (like race, gender, religion).  Under the Wisconsin Worker’s Compensation Law, a work injury is essentially an additional protected category.  The worker’s compensation Labor Industry and Review Commission has held that refusal to rehire benefits are not “back pay for Unemployment reimbursement purposes.” 

Under Unemployment Compensation law, no finding of fact or law made with respect to liability under the UC provisions is binding in an administrative proceeding under the Worker’s Comp law.  As such, the Unemployment decision generally is inadmissible in a worker’s compensation hearing.  However, some litigants attempt to use an Unemployment Insurance file for other purposes – beyond the findings of fact and conclusions of law – in a worker’s compensation hearing.  A finding in the Unemployment Compensation arena by an initial Unemployment Compensation deputy, for example, may prove admissible in the worker’s compensation arena on the issue of misconduct, thus providing the employer in a worker’s compensation claim a defense to a refusal to rehire claim.

Buying Overseas Clothing, U.S. Flouts Its Own Advice

Today’s post was shared by The New York Times and comes from www.nytimes.com

WASHINGTON — One of the world’s biggest clothing buyers, the United States government spends more than $1.5 billion a year at factories overseas, acquiring everything from the royal blue shirts worn by airport security workers to the olive button-downs required for forest rangers and the camouflage pants sold to troops on military bases.

But even though the Obama administration has called on Western buyers to use their purchasing power to push for improved industry working conditions after several workplace disasters over the last 14 months, the American government has done little to adjust its own shopping habits.

Labor Department officials say that federal agencies have a “zero tolerance” policy on using overseas plants that break local laws, but American government suppliers in countries including Bangladesh, the Dominican Republic, Haiti, Mexico, Pakistan and Vietnam show a pattern of legal violations and harsh working conditions, according to audits and interviews at factories. Among them: padlocked fire exits, buildings at risk of collapse, falsified wage records and repeated hand punctures from sewing needles when workers were pushed to hurry up.

In Bangladesh, shirts with Marine Corps logos sold in military stores were made at DK Knitwear, where child laborers made up a third of the work force, according to a 2010 audit that led some vendors to cut ties with the plant. Managers punched workers for missed production quotas, and the plant had…

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Increased in risk of specific NHL subtypes associated with occupational exposure to TCE

Trichloroethylene

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

Study published linkig trichloroethylene exposure to cancer.

The chemical compound trichloroethylene (C2HCl3) is a chlorinated hydrocarbon commonly used as an industrial solvent. It is a clear non-flammable liquid with a sweet smell.

Objectives We evaluated the association between occupational exposure to trichloroethylene (TCE) and risk of non-Hodgkin lymphoma (NHL) in a pooled analysis of four international case-control studies.

Methods Overall, the pooled study population included 3788 NHL cases and 4279 controls. Risk of NHL and its major subtypes associated with TCE exposure was calculated with unconditional logistic regression and polytomous regression analysis, adjusting by age, gender and study.

Results Risk of follicular lymphoma (FL), but not NHL overall or other subtypes, increased by probability (p=0.02) and intensity level (p=0.04), and with the combined analysis of four exposure metrics assumed as independent (p=0.004). After restricting the analysis to the most likely exposed study subjects, risk of NHL overall, FL and chronic lymphocytic leukaemia (CLL) were elevated and increased by duration of exposure (p=0.009, p=0.04 and p=0.01, respectively) and with the combined analysis of duration, frequency and intensity of exposure (p=0.004, p=0.015 and p=0.005, respectively). Although based on small numbers of exposed, risk of all the major NHL subtypes, namely diffuse large B-cell lymphoma, FL and CLL, showed increases in risk ranging 2–3.2-fold in the highest category of exposure intensity. No significant heterogeneity in risk was detected by major NHL subtypes or by study.

Conclusions Our pooled analysis apparently supports the hypothesis of an increase in risk of specific NHL subtypes associated with occupational exposure to TCE.

$46 Million Stolen: 2013’s Top Ten Workers’ Compensation Fraud Cases

Professor Leonard T. Jernigan Jr. has compiled a list of 2013’s Top 10 Workers’ Compensation Fraud Cases

Employer Fraud Cases (9):$44,064,492.00
Employee Fraud Cases (1): $1,500,000.00
Total: $45,564,492.00

 

Every year we hear about fraud in Workers’ Compensation cases and the public believes the fraud is employee driven. However, in 2009 I began tracking the Top Ten Fraud Cases and 100% of the Top Ten between 2009-2012 involved employers or shady characters posing as legitimate businesses. The amount of employer fraud is staggering. In 2013 one employee fraud case did crack the Top Ten, so the record is now 49-1 (employer fraud v. employee fraud) over the past five years.

  1. Florida: Owners of Diaz Supermarkets in Miami-Dade are Accused of $35 Million Fraud (4/16/13)

    John Diaz

    John Diaz and his wife Mercedes Avila-Diaz owned and operated four supermarkets in the Miami-Dade area. They have been arrested and accused of workers’ compensation fraud and other fraudulent transactions totaling $35 million. One business they operated had no coverage for employees for ten years. They allegedly engaged in a scam to help subcontractors obtain false certificates of insurance that allowed the subs to work for general contractors who required the certificates.

  2. California: Hanford Farm Labor Contractor Convicted of Fraud in the Amount of $4,195,900 (12/6/2013)

    Richard Escamilla, Jr.

    Richard Escamilla, Jr. (47), owner of ROC Harvesting, misrepresented information to workers’ compensation insurance carriers by using new business names to obtain insurance and avoid providing a claim history. Escamilla pleaded guilty on October 29th and was sentenced to pay restitution of $4.1 million and serve six years in prison.

  3. Michigan: Insurance Executive Embezzled $2.6 Million from Workers’ Comp TPA (06/06/2013)

    Jerry Stage

    Jerry Stage (67), the former CEO of a non-profit workers’ compensation insurance company, and George Bauer (55), the bookkeeper, both pleaded guilty to embezzling from the Compensation Advisory Organization of Michigan (CAOM) for more than a decade. Mr. Stage embezzled $2.6 million from the company and conspired with Mr. Bauer to cover up the embezzlement.

  4. California: Employee Wasn’t Wheelchair Bound After All – Fraudulently Took $1.5 Million in Benefits (8/9/13)

    Yolandi Kohrumel

    Yolandi Kohrumel, 35, claimed for nine years that she was wheelchair bound after complications from toe surgery, but after she had collected $1.5 million in benefits it was revealed her claim was false. Her father, a South African native, was also engaged in the scam. Both pleaded guilty to insurance fraud, grand theft and perjury. Ms Kohrumel was sentenced to one year in jail, plus restitution.

  5. California: Father and Son Landscapers Accused of $1.45 Million in Insurance Fraud (5/7/13)

    Sunshine Landscaping

    Jesse Garcia Contreras (57) and Carlos Contreras (33), who operate a Thousand Palms landscaping business, are accused of committing $1.45 million in insurance fraud. They are accused of defrauding the California State Compensation Insurance Fund by misclassifying employees from January 2008 to March 2012. Mr. Jesse Contreras is the president and CEO of Sunshine Landscaping and his son is Director of Accounting. If convicted, they each face up to 19 years and 8 months in prison.

  6. Florida: Workers’ Compensation Check Cashing Operation Charged with $1 Million in Fraud (2/27/13)

    As a result of its investigation of I&T Financial Services, LLC, a company that was allegedly set up to execute a large scale check cashing scheme for the purpose of evading the cost of workers’ compensation coverage. Domenick Pucillo, the ringleader of the fraud scheme, was arrested and charged with filing a false and fraudulent document, forgery, uttering a forged instrument, and operating an unlicensed money service business. If convicted on all charges, he faces up to 45 years in prison. $1 million was seized during this investigation.

  7. West Virginia: Coal Company Contractor in Mingo County Caught in $405,000 Scam to Avoid Workers’ Comp Premiums (11/6/13)

    Bank of Mingo

    Jerame Russell (50), an executive with Aracoma Contracting, LLC, a company that provided labor to coal companies on a contract basis, entered a guilty plea to a scam that involved funneling over $2 million through a local bank to pay employees in cash, thus avoiding payroll taxes and $405,000 in workers’ compensation premiums. Aracoma also bribed an insurance auditor to cover up its true payroll.

  8. Ohio: Roofing Business Owners Guilty of $283,592 in Workers’ Comp Fraud (7/30/2013)

    Frederick Diebert

    The owners of Triple Star Roofing were found guilty of fraud on July 15 for failing to report payroll to the Ohio Bureau or Workers’ Compensation(BWC). The company failed to report to the BWC from 2004 to 2008, resulting in under-reported premiums of $283,592.

  9. Florida: Owner of Staffing Company arrested for $130,000 in Workers’ Comp Fraud

    Preferred Staffing of America, Inc.

    The owner of Preferred Staffing of America, Inc., a temporary staffing agency in Tampa, has been arrested for allegedly running an organized workers’ compensation fraud scheme. Preferred Staffing’s owner misled clients into believing that his company was a licensed professional employer organization (PEO) and could provide workers’ compensation insurance coverage. Employers were reportedly charged more than $130,000 for workers’ compensation insurance and other services that were never provided.

For more information, contact:
Leonard T. Jernigan, Jr.
Adjunct Professor of Workers’ Compensation
N.C. Central School of Law
The Jernigan Law Firm
2626 Glenwood Avenue, Suite 330
Raleigh, North Carolina 27608
(919) 833-0299
ltj@jernlaw.com
www.jernlaw.com
@jernlaw

Lafayette settles lawsuit for $225,000, one of three large settlements this year

Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from theadvocate.com

LAFAYETTE — Lafayette city-parish government has paid $225,000 to settle a lawsuit filed by a woman who was injured when she broad-sided a police cruiser that was going through a red light while responding to another traffic accident.City-parish government released documents this week detailing the out-of-court settlement in the case, which arose out of a February 2008 accident at the busy intersection of Congress Street and Cajundome Boulevard on a rainy Friday afternoon.Officer Larry Theriot II had his lights and sirens on, but Melissa B. Dugas had alleged in the lawsuit that Theriot, who had the red light, did not pay enough attention to cross-street traffic before passing through the intersection and being struck by Dugas.Dugas, who suffered neck injuries, had said she did not see the police cruiser’s emergency lights or hear the siren and did not notice that other vehicles had already stopped.Theriot had said he came to a complete stop and looked both ways several times when moving through the intersection, but there were questions as to whether he stopped again for traffic while moving through the large intersection, according to statements in the court record.City-Parish Chief Administrative Officer Dee Stanley declined comment.The case is one of three settlements north of $200,000 paid by city-parish government this year.In March, Lafayette paid $500,000 to settle a lawsuit filed by a man who was paralyzed after being struck in a traffic accident blamed…

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Fear of Reporting Safety Claims

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

Workers often fear retaliation if they report a safety violation or work injury related to a violation. Concerns about being fired or other forms of retaliation by employers permeate the process of worker’s comp claims filing. Studies have indicated that retaliatory fear prompts many workers not to file either OSHA or workers’ comp claims. Workers also don’t want to be perceived as careless or complaining. In a Government Accounting Office (GAO) study of OSHA reporting, occupational health providers often reported to workers’ fear of retaliation as a reason for underreporting. Fully 2/3 of health providers “reported observing worker fear of disciplinary action for reporting an injury or illness.”

Pressure from co-workers also prompts failure to report safety violations and comp claims. Safety incentive programs (sometimes called “safety bingo” ) create incentives not to report, since non-reporting leads to a reward for a work group. If one worker reports his injury, the entire crew may pay the price. The GAO survey found this peer pressure to be a troubling factor contributing to underreporting to OSHA. (Anecdotally, I remember a worker who cut off his finger on a Friday, wrapped it in a hankie and put it in his pocket , rather than report the injury and disappoint his fellow employees looking forward to a case of beer reward for “100 consecutive safe work days”).

OSHA is currently proposing new electronic, public reporting rules for large employers.