June 14, 2013
Shout Out to Richard Moberly's New Blog: Law of Secrecy Blog
In particular, and in response to the crazy last week of whistleblower and secrecy news, including the whole Snowden affair, Richard has started the Law of Secrecy blog on Tumblr.
I have read all of the posts so far and they are excellent. Not surprising, given that Richard is a leading national expert on all forms of whistleblower law, as his vast writing in the area indicate.
Check out this new blog when you have the chance. I have a feeling that it will be mandatory reading for anyone wanting to keep up on the increasing news about the surveillance state and whistleblowing.
March 01, 2013
Soviet Safety Posters
Hat Tip: Alex Long & Jody Prestia
December 20, 2012
Injury During Sex is Work-Related and Compensable, Aussie Court Holds
The Australian Federal Court has dismissed an employer's appeal and thus let stand a ruling that a woman who was injured while having sex with her boyfriend in a hotel room while on a business trip was injured "in the course of employment" and therefore is entitled to compensation. The Australian News reports:
The woman who worked for workplace health insurer Comcare, claimed for facial and psychological injuries suffered when a glass light fitting came away from the wall above the bed in her motel room as she was having sex in November 2007.
The woman in her late thirties was required to travel to a country town by her employer when the incident occured. She arranged to meet a male friend there who lived in the town. They went to a restaurant for dinner and at about 10pm or 11pm went back to the woman's motel room where they had sex that resulted in her injury.
The male friend said in his statement at the time that they were "going hard” and he did not know if they bumped the light or it just fell off.
Here's a related story in USA Today.
December 17, 2012
Labor Department Announces Members of New Whistleblower Protection Advisory Committee
The Labor Department announced this past Thursday, the members of the new Whistleblower Protection Advisory Committee. The Committee wll consult with DOL on ways to improve an array of federal government whistleblower programs.
A number of law professors are members of the Committee, representing the general public. They include: Richard Moberly (Nebraska), Committee Chairwoman Emily Spieler (Northeastern), and Jonathan Brock (retired University of Washington).
For more information about the Whistleblower Protection Advisory Committee, you can read the DOL website page on the Committee (which comes under the jurisdiciton of OSHA).
October 31, 2012
Tucker: New Governance in OHS
Orly Lobel (San Diego; photo not at left)) sends word that Eric Tucker (York - Osgoode; photo left) has posted to SSRN his article Old Lessons for New Governance: Safety or Profit and the New Conventional Wisdom. Orly points out that the article "is a nice engagement with the new gov[ernance] debates and with recent osha developments". Here's the abstract:
New governance theory has a large following in academia and is exerting an influence in numerous spheres of regulatory policy. Yet in the area of occupational health and safety, new governance is hardly new at all. Indeed, it is fair to say that it in many ways what are now labelled new governance concepts were first articulated and applied in the 1972 Robens Report, Safety and Health at Work. This included its critique of command and control legislation and its emphasis on the need to develop better self-regulation. This paper critically examines new governance models in OHS regulation. In the first part, I construct some ideal types of OHS regimes based on three variables; state protection, worker participation and employer management systems. These are used as heuristics in subsequent discussion. The second part briefly discusses the roots of new governance in the Robens report (referred to as ‘old’ new governance) and briefly reviews Ontario’s experience with it, to examine its dynamics and its vulnerability to regress toward neo-liberal self regulation/ paternalism in the absence of effective worker OHS activism . In part three, I focus on recent work by two North American new governance theorists, Orly Lobel and Cynthia Estlund, who consciously wish avoid a collapse of new governance approaches into neo-liberal self regulation/paternalism. I argue that despite their aspirations, the new governance prescriptions they embrace are unlikely to be institutionalized with the protective conditions they advocate and that their emphasis on self-regulation valorizes a movement toward the destination they wish to avoid. Finally, I ask whether degradation toward neo-liberal self-regulation/paternalism is inevitable and if not whether a progressive new governance theory is possible and has anything to offer toward strengthening a regime of public regulation under the unfavourable conditions that prevail today.
October 23, 2012
EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking
The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:
Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked. The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.
The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It's a good summary.
h/t Marcy Karin (ASU)
"Dying on the Job" about Workplace Violence
Ronald D. Brown sends us word about his new and timely book: Dying on the Job: Murder and Mayhem in the Workplace (press release flyer here).
From the press release:
Dying on the Job is the first book on workplace violence to focus exclusively on workplace murder. While some perpetrators are certainly mentally impaired, many workplace murders are committed by people considered to be “normal.” Brown explores the various motives and drives that spark workplace murder, and answers hundreds of questions that are usually asked only after a workplace murder rampage has already occurred.
Are men or women more likely to commit workplace homicide? How can people more easily spot those likely to commit workplace murder? What are some of the warning signs? How often is "suicide" used as workplace revenge? The answers to these questions and more are based on more than 350 actual cases of workplace murder, and the answers are often surprising.
Brown also addresses different areas of prevention, counseling, and rehabilitation, and analyzes different approaches to gun control for both management and employees to make their job a safer place to work.
The praise that this book has received from top names in the labor and employment law field like Bill Gould, Cindy Estlund, and Lance Liebman, strongly suggest that it is a book well worth a read. Check it out!
October 02, 2012
Gov. Brown Vetoes Cal. Domestic Workers Bill of Rights
California Governor Jerry Brown vetoed AB 889, the California Domestic Workers Bill of Rights. See here and here. Bad news for some of California's most vulnerable workers, and a setback for the domestic workers rights movement. Governor Brown's veto message expressed concern that 24-hour care would become too costly and would result in fewer jobs especially since some workers would be paid by the state.
September 17, 2012
Support for the CA Domestic Workers Bill of Rights
Noah Zatz (UCLA) writes to tell us of a petition being circulated by academics in California in support of the Domestic Workers Bill of Rights there. Here is the note about the letter being circulated with links to it and to the letter of support from non-academics.
Thank you for agreeing to be one of the sixty-one original signatories to the Letter from Academics to Governor Brown in Support of The Domestic Workers Bill of Rights. Y/our names all appear following the text of the letter, which has now gone live online so that we may invite more colleagues to sign on as well. This is a much appreciated contribution to the campaign and if it is all you can do at this time, thank you! If you do a little more...
The California Domestic Workers Coalition will be delivering our letter to Governor Brown's office next Monday, so if you are willing to forward the link to other interested colleagues, please do so as soon as you are able and they will be added to the letter the Governor receives.
And, finally, if you have time to go to the site yourself and click "sign this petition" online, it will help us track the running tally. This also may in turn make it even easier for you to forward the letter to other colleagues via email, Facebook and Twitter.
Should you know others hoping to sign a petition on this matter, who are not scholars with related interests, please refer them instead to the general petition in support of AB889 atwww.domesticworkers.org.
In Gratitude for your Solidarity,
Kathleen Coll, Stanford & Eileen Boris, UC Santa Barbara
August 23, 2012
California Domestic Worker Bill of Rights
As you might recall from our post at the time, the California General Assembly passed the California Domestic Workers Bill of rights, AB889. The bill is now before the California Senate, and the California Domestic Workers Coalition is urging people to take action in support if the bill. As part of that, Amy Poehler has made this PSA.
I love Ms. Poehler, not just because I think she's funny, but also because she's one of the creators of Smart Girls at the Party: Change the World by Being Yourself, a website and YouTube channel that provides a positive multidimensional message for and about girls.
We'll keep you posted on any news related to AB889.
November 21, 2011
666 Days Accident-Free!
But not discrimination-free. Dennis Nolan sends us a link to this post from The Volokh Conspiracy:
Here’s what is alleged in the Complaint in Hyatt v. Berry Plastics Corp. (N.D. Ga. filed Nov. 8, 2011) — recall that these are just the plaintiff’s allegations:
- Hyatt’s employer kept a safety calendar that marked the number of consecutive days that the workplace was accident-free. Employees were required “to write the number off of the safety calendar onto a sticker and are to wear the sticker throughout the work shift” (I’m quoting the Complaint here).
- “As the number of safely worked days crept into the range of the 600’s, Plaintiff began discussing with his co-workers and supervisors that he could not wear the number 666 as this number was the sign of the beast and his religious beliefs forbid him from wearing this number. Plaintiff sincerely believed that wearing a sticker with the number ‘666’ on it would be abandoning his beliefs and his God, and would subject Plaintiff to damnation and would force Plaintiff to abandon his religious beliefs.”
- Plaintiff asked a manager for a religious accommodation on day 666, but the manager allegedly responded that “Mr. Hyatt’s beliefs were ridiculous, and that Mr. Hyatt could go to work with a ‘666’ on his safety sticker or face a three (3) day suspension.” Plaintiff decided to take the three-day suspension, but was then fired for refusing to work on day 666.
Plaintiff is now suing, claiming the employer violated Title VII of the Civil Rights Act by refusing to reasonably accommodate his beliefs, and retaliated against plaintiff for asserting his rights.
November 15, 2011
Construction Safety Videos
Check out these animated videos OSHA has released on preventing construction hazards.
October 20, 2011
Bent: Reform Workers' Comp to Enhance Workplace Safety
Jason Bent (Stetson) has just posted on SSRN his article on a much-neglected topic of LEL scholarship: workplace safety. Some of you may recall that he presented it at the Sixth Annual Colloquium on Current Scholarship in Labor and Employment Law. His article is An Incentive-Based Approach to Regulating Workplace Chemicals, and I hope it will spur some action.
Our system for regulating employee exposures to hazardous chemicals is broken. There is a recognized market failure in the market for workplace safety regarding exposures to potentially hazardous chemicals. Information asymmetries, long disease latency periods, and other characteristics of chemical exposures allow employers and chemical manufacturers to externalize much of the expected cost of workplace exposure. The current U.S. regulatory system, including both Occupational Safety and Health Administration regulations and state workers’ compensation programs, is failing to correct the market failure. The result is a level of chemical exposure risk that is systematically too high, and a level of precaution that is systematically too low.
The proposed reforms offered to date in the employment and environmental law literature are lacking, primarily because they do not sufficiently address the underlying financial incentives of the true least-cost information providers and least-cost risk avoiders: chemical manufacturers and employers. This article takes the search for a solution to the workplace disease problem in a new direction by capitalizing on the incentives of chemical manufacturers and employers. My proposal would amend state workers’ compensation laws in two ways: (1) shift the default burden of proof on the element of causation onto the respondents, in cases where there is no regulatory exposure limit governing the substance in question, and (2) allow employers to include chemical manufacturers as respondents in workers’ compensation claims for purposes of apportioning liability. These amendments could be implemented by convening a new National Commission on State Workers’ Compensation Laws. By focusing on the financial incentives of chemical manufacturers and employers, this proposal will spur the production of chemical toxicity information and lead to adequate compensation for employees who suffer exposure-related illnesses and diseases.
September 13, 2011
Seattle Passes Paid Sick Leave Ordinance
The Seattle City Council voted yesterday to require employers in the city to provide paid sick leaves to employees, according to an Associated Press story. Currently, Washington, D.C., San Francisco, and the state of Connecticut mandate paid sick days. You may recall that Millwaukee passed an ordinance a few years ago, but it was struck down on state election law grounds.
The Seattle ordinance requires that employers of five or more employees give each employee five paid sick days for their own sickness or that of a person they care for, or if they are a victim of domestic violence, to cooperate with law enforcement and court proceedings. Employers with 250 or more employees have to provide nine days.
Some are opposing the law as bad policy during a recession, while others (including many employers) praise it as easy to comply with, not adding much in expenses, and better protecting workers (both the sick and the not sick) and customers.
According to the group Family Values at Work, 44 million workers nationwide still lack access to paid sick time. This is a step in the right direction, especially for those lower wage workers who likely can't afford to take unpaid time off even when they need to, and for all of us those workers would come in contact with.
June 10, 2011
Dubin on Defining SSI Disability
Jon C. Dubin (Rutgers) has just posted on SSRN his article (S. Cal. Rev. L. & Soc. Justice) The Labor Market Side of Disability-Benefits Policy and Law. Here's the abstract:
The primary administrative mechanism for ascertaining the availability of less demanding work to which [SSA] disability claimants might adjust is an innovative medical-vocational matrix or "grid" regulation that takes administrative notice of job characteristics, job incidence, and adaptation assumptions based on the U.S. Department of Labor’s ("DOL") first occupational taxonomy, the Dictionary of Occupational Titles ("DOT") and other government surveys. However, the empirical data about the labor market upon which the grid regulation was based is nearly half a century old and dependent upon an occupational taxonomy (the DOT) that was discontinued twenty years ago. In addition, changes in disability policy and social welfare policy from the Americans with Disability Act ("ADA") of 1990 and the Personal Responsibility and Work Opportunity Reconciliation Act ("PRWORA") of 1996 that emphasize work over benefit receipt have provided impetus to reconceptualize disability benefits eligibility. Because of the complexity of the disability benefit programs’ existing labor market adjudicative process, the empirical vulnerabilities in the present system and the public policy currents from the ADA and PRWORA, a variety of alternatives has been suggested for altering or modifying the present system for adjudicating labor market work adjustment issues.
This article evaluates those alternatives and concludes that the SSA should employ a "mend it don’t end it" approach to the adjudication of labor market considerations in the disability benefits programs. It argues that the suggested alternatives to the present system are either fundamentally misguided or politically unpalatable. It urges acceptance of the National Research Council’s recommendation from a report issued in March 2010 for the DOL and SSA to collaborate on completion of an up-to-date and methodologically appropriate labor market taxonomy to support an updated grid’s empirical bases for continued use. It further advocates for institutionalizing at least decennial revision of the underlying labor market data and taxonomy to enhance the grid’s temporal reliability on a continuing basis. Finally, it eschews usage of a grid updating or revision process as an opportunity to tighten or restrict benefit eligibility in light of the consequences of wrongful disability benefit denial in a post-welfare reform reality of substantially restricted safety net alternatives and in a depressed and constricted economy for characteristically low-skilled, disability benefit claimants.
May 20, 2011
Morantz: Union Status Correlates with Coal Miner Safety
Alison D. Morantz (Stanford) has just posted on SSRN her article Coal Mine Safety: Do Unions Make a Difference?. The article is pariticularly well-timed, having been posted on the same day as the release of this Report concluding that the 2010 explosion at Upper Big Branch Mine, in which 29 miners died, was the result of pervasive safety violations by mine owner Massey Energy. Here's the abstract:
Although the United Mine Workers of America (UMWA) has always advocated strongly for miners’ safety, prior empirical literature contains no evidence that unionization reduced mine injuries or fatalities during the 1970s and ‘80s. This study uses a more comprehensive dataset and updated methodology to examine the relationship between unionization and underground, bituminous coal mine safety from 1993 to 2008. I find that unionization predicts a substantial and significant decline in traumatic mining injuries and fatalities, the two measures that I argue are the least prone to reporting bias. These disparities are especially pronounced among larger mines. My best estimates imply that overall, unionization predicts an 18-33% drop in traumatic injuries and a 27-68% drop in fatalities. However, unionization is also associated with higher total and non-traumatic injuries, suggesting that injury reporting practices differ substantially between union and nonunion mines. Unionization’s attenuating effect on the predicted frequency of traumatic injuries seems to have grown since the mid 1990s.
March 25, 2011
Lofaso on Coal Miners and Dangerous Jobs
In 2007, I published Approaching Coal Mine Safety from a Comparative Law and Interdisciplinary Perspective, which raised, but did not answer, the following question: What do citizens of a "just" society owe workers, such as coal miners, who daily risk their lives for our collective comfort? I endeavor to answer that question in What We Owe Our Coal Miners.
I begin with three observations. First, borrowing from philosopher Thomas Scanlon, I observe that justice requires us to justify dangerous jobs by presenting reasons that “no one could reasonably reject as a basis for informed, unforced, general agreement.” In this context, I note that underground miners put themselves in physical danger and health risk to generate energy for all members of our society. Accordingly, those who benefit from the fruits of their labor owe reasons to those miners. Second, I acknowledge my own bias to live in a society that directly values the dignity of human life. Third, I note that the free-market argument does not directly value life, but values efficiency instead, which leads inevitably to markets clearing at a Kaldor-Hicks efficient level of fatalities as an acceptable risk rather than policies promoting the safest possible workplace.
Accepting that, in reality, the political will does not exist to stop underground mining, the question becomes—what do we owe our coal miners? My conclusion, of course, is safer working conditions, but not after considerable deconstruction of free-market justifications. I begin by relating the human cost of meeting global energy demand through the profitable coal mining industry. Using economic data and historical circumstances, I then show the enormous power disparity between the well-compensated coal mine operators and coal miners, who actually risk their lives and health to mine the coal that generates about half of U.S. electricity. I draw the conclusion that the coal industry is particularly well-suited for collective bargaining because it is precisely the type of industry—large disparities in labor-management bargaining power with the potential for enormous disruptions in interstate commerce—that Congress had in mind when passing the National Labor Relations Act.
In searching for a solution that presents sufficient reasons to justify coal mining, I test the hypothesis whether coal mining laws have in fact resulted in safer mines. Using a broken stick statistical method, I show that coal mine laws have in fact resulted in safer mines. Observing further that union mines have resulted in fewer disasters than nonunion mines in the past several decades, I argue for imposing the union model on top of this regulatory floor of rights. This solution has the added benefit of empowering those individuals who are actually risking their lives for our collective comfort. I end with the hope that this model for dignifying human life can be used for analyzing other dangerous jobs in crucial industries.
March 21, 2011
Secunda on OSHA and Japan's Nuclear Crisis
Proving yet again that he is a man of many specialties, our Paul Secunda was cited in a recent MSNBC article on safety issues as they relate to the nuclear crisis in Japan:
The Occupational Safety and Health Act of 1970, which created the federal safety agency, OSHA, covers all private sector employees and federal employees, but not state and or local government workers, said Paul Secunda, associate law professor at Marquette University Law School in Milwaukee, Wis. There are 21 states, he added, that cover public employees, and many of those employees are in industrial states. . . .
At nuclear facilities OSHA has partial jurisdiction on worker safety, but not when it comes to radiation exposure. According to a 1988 memorandum between the two agencies, the Nuclear Regulatory Commission oversees radiation and chemical risks at NRC-licensed facilities, while OSHA handles general occupational risks at plants.
This doesn’t mean protections for those workers when it comes to radiation exposure are any less stringent than employee safety safeguards in any other industry, Secunda maintained. “You are not required to work in conditions [that] would either cause you serious health problems or death,” Secunda said, although he said there may be some exemptions for public emergencies, such as the one in Japan. . . .
Also, if a worker thinks he or she is in imminent danger at work, he continued, that employee doesn’t have to even notify OSHA. The worker can just walk off the job and be protected from being fired or demoted as a result. “OSHA has the ability to close down workplaces that are too hazardous,” Secunda said. Workers may not understand the risks they’re taking, or they may have been coerced into doing a dangerous job with the promise of a big payoff, he noted.
In the case of the Japanese nuclear plant workers, “a communitarian standard and the fear of shaming your family” may be driving the decisions to go back into the nuclear plant, said Secunda, who spent time in Japan and has written papers on Japanese dispute resolution. “There’s a sense of social responsibility the Japanese have that we are lacking,” he noted. They see it, he said, “as glorious to give your life for a greater cause. They came up with Kamikazes, after all.”
February 03, 2011
More workers using opiates at work than we thought
A recent study by Quest Diagnostics shows that more workers (including those in safety-sensitive positions) are using heroin or prescribed opiates on the job than was thought previously. Before we panic too much, the incidence rate is still pretty low at .04% of workers who test positive for heroin. However, post-accident tests are four times more likely to show opiate use than is pre-employment testing, which suggests it might be difficult to prevent such accidents by pre-employment testing alone.
The rise is due in part to a better testing method, but may also be due to more employees self-medicating to deal with stress. For more see this Fortune story, which also discusses confidentiality and Employee Assistance Programs.
January 25, 2011
Mining Deaths Up in 2010
Mining fatalities in the United States significantly increased in 2010, following a year marked by the fewest deaths in mining history, according to the U.S. Department of Labor's Mine Safety and Health Administration. Seventy-one miners died on the job last year, compared to 34 in 2009. Forty-eight of those deaths occurred in coal mines, and 23 occurred at metal and nonmetal operations. Of the 71 mining fatalities reported, 23 of those victims were killed in surface mining accidents, while 48 miners died in underground mining accidents, 29 of whom were killed in the explosion at the Upper Big Branch mine in April. The leading cause of coal mining deaths was ignition or explosion, followed by powered haulage and roof falls. The leading cause of metal/nonmetal mining deaths was powered haulage, followed by falling or sliding material, and machinery...