Thursday, October 20, 2011
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.
Tuesday, September 13, 2011
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.
Friday, June 10, 2011
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.
Friday, May 20, 2011
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.
Friday, March 25, 2011
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.
Monday, March 21, 2011
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.”
Thursday, February 3, 2011
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.
Tuesday, January 25, 2011
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...
Thursday, January 13, 2011
Cost of Construction is a documentary film uncovering a national scandal, where the race for profits trumped the safety of American workers while the country’s top safety agency failed to enforce their own regulations - all during the most expensive commercial construction project in the United States.
It's worth checking out.
Tuesday, November 30, 2010
[Sutton] talks about a study of drug treatment errors in hospital nursing units. The most efficient and safest units reported 10 times more drug errors than the least efficient and unsafe units. Yes, you read that right. Sutton writes: "This tenfold difference in reported errors was due to psychological safety, not the actual error rate. Nurses with good bosses felt safe to admit mistakes, nurses with bad bosses avoided reporting errors because doing so provoked humiliation and retaliation." My take: You can't fix what you don't know is broken, and you won't know what's broken unless an employee tells you. A candid and transparent culture makes a manager stronger, not weaker.
Monday, September 13, 2010
... In this article, we examine how social networking has influenced workers’ compensation law, looking at, in particular, the intersection of professional responsibility, discovery, privacy, and evidence with social networking in state workers’ compensation systems.... The flexible and self-contained structure of workers’ compensation systems provides an ideal backdrop against which to examine how information from social networking sites can be used as evidence to resolve civil disputes.rb
A state’s workers’ compensation system should use the rules that have traditionally applied to non-electronic information as a starting point to address issues arising from lawyers gathering and introducing into evidence information stored on social networking sites. At the same time, because of the efficiency of workers’ compensation law and the large discretion vested in its judges, workers’ compensation systems have the potential to be laboratories for new technologies and how they can be used in the resolution of disputes, both inside and outside of workers’ compensation.
Wednesday, September 8, 2010
Late last week, six labor contractors from the Beverly Hills staffing company, Global Horizons were indicted by a grand jury on charges brought by the Justice Department in what it is calling the largest human trafficking case in US history. (See the NY Times story here, LA Times story here, CNN story here, and Honolulu KITV story with video here).
The company allegedly charged Thai workers up to $21,000 for H-2A visas to the United States, then when the workers got here, they were forced to work for less money than they had been promised in poor living conditions on pineapple farms in Hawaii and orchards in Washington State. The workers were forced to remain with threats of deportation and arrest with no way to pay back the debts they had incurred and would never be able to pay off in any event.
The EEOC has also found cause to believe that the staffing company discriminated against the workers in violation of Title VII.
This case is particularly interesting because it does not involve the exploitation of workers who come to this country or who work here in violation of federal law. Rather, these workers are legally able to work, and yet are fairly easily trafficked and thoroughly exploited even within the current immigration system. Clearly, we need a greater acknowledgment of the human trafficking problem in the United States (including trafficking of people born in this country, not just immigrants), serious immigration reform, and more support for workplace law enforcement.
Thursday, September 2, 2010
On Tuesday, New York Governor Paterson signed the Domestic Workers' bill of rights into law. The new statute provides for overtime pay protections, guarantees time off eventually with pay, and provides protections from sexual harassment. It also provides a cause of action for domestic workers to sue to enforce it. See this AP story and this NY Daily News Story for more details.
It's a great achievement, but there seem to be big obstacles to enforcement given the structure of the industry, the lack of centralization of employment, and the number of workers that are paid "off the books." We'll all have to stay tuned to see how things develop.
Wednesday, August 18, 2010
We've been mentioning since 2007 (see here here here and here) the ongoing litigation and regulation over how employees manufacturing microwave popcorn are at risk for developing a severe lung disease from diacetyl. An early jury award is just in: a Cook County, IL jury awarded a man $30.4 million. Here are stories in the Chicago Daily Law Bulletin (subscription required) and the Joplin Globe.
Hat tip: Jason Bent (Penn State).
Friday, June 25, 2010
Keith Lee sends us links to two blog posts on focusing on various issues regarding workers compensation coverage of workers involved in the BP oil spill clean-up. Both are on Fish & Nelson's Alabama Workers' Comp Blog. The articles are:
- Oil Spill Likely to Lead to Future Workers' Compensation Claims, and
- Going In-Depth with the Laws Governing Injured Oil Spill Workers Claims.
Wednesday, June 2, 2010
New York's Senate appears to be on something of an employment law tear. First the anti-bullying legislation, and now, according to Crain's New York Business, a wage and hour bill to benefit domestic workers. From the story,
In addition to six paid holidays, paid sick days and vacation, the Senate bill would compel employers to give domestic workers, such as nannies and housekeepers, notice of termination and would cover them under basic discrimination laws and unemployment and workers' compensation statutes.
The National Labor Relations Act, which guarantees employees the right to organize, excludes domestic workers; the Fair Labor Standards Act, which sets federal minimum wage and overtime standards, also does not include to them; and civil rights laws that protect workers against discrimination do not apply to most domestic workers.
Employers who don't comply would be subject to civil and criminal penalties, and both the labor commissioner and attorney general could bring legal action against them. To become law, the two versions of the bill must be brought together via reconciliation and Gov. David Paterson must sign the bill that emerges. The governor pledged last year that he would give it his stamp of approval if it reaches his desk.
Still some work ahead, but what a victory for this workforce of more than 200,000, mostly foreign born women of color who are currently very exploitable.
Wednesday, April 28, 2010
In Bollinger Shipyards, Inc v. Director, Office of Worker's Compensation Programs, U.S. Dep't of Labor, the Fifth Circuit upheld the award of workers compensation benefits to an undocumented immigrant worker who was injured on the job as a pipefitter, joining the DC Circuit in holding that immigration status is irrelevant under the LHWCA. The employee had told Bollinger that he was a citizen and gave the company a false social security number. After he was injured on the job, the company paid some of his expenses and benefits but then stopped when it discovered that he was an undocumented immigrant. The primary question on appeal was whether an undocumented worker could be eligible for benefits under the act.
Analyzing the statute and cases from other statutes, the court held that the worker here was an employee within the meaning of the act and thus entitled to benefits. Bollinger argued that because the worker was not legally entitled to work, he could not be entitled to benefits. Here's how the court characterized the company's brief:
Bollinger contends that undocumented immigrants such as Rodriguez are per se ineligible to receive indemnity benefits under the LHWCA, as any such benefits “would be based on illegally obtained wages.” Bollinger reasons that Rodriguez’s injury caused him no loss of wage-earning capacity because he had no legal wage-earning capacity at the time he was injured. Bollinger histrionically compares the BRB’s ruling to “awarding benefits to a drug dealer based on ill-gotten ‘wages,’ [and] then telling the employer that it better find another illegal enterprise for the drug dealer, lest there be found a permanent loss of wage[-]earning capacity.” In the same melodramatic style, Bollinger compares awarding benefits to Rodriguez to “awarding benefits to a pirate or a Mafioso.”
Bollinger relied on the Hoffman Plastics line of NLRB cases, which made this distinction about whether wages could be paid legally in declining to award some types of relief under the NLRA in order to avoid conflict with the immigration laws, which prohibit the employment of aliens who enter or remain in the country illegally and which also criminalizes the use of false documentation to obtain work.
The court distinguished this line of cases for three reasons: (1) Unlike discretionary backpay under the NLRA, workers’ compensation under the LHWCA is a non-discretionary, statutory remedy; (2) unlike the NLRA, the LHWCA is a substitute for tort law, abrogating fault of either the employer or the employee; and (3) awarding death or disability benefits post hoc to an undocumented immigrant under the LHWCA does not “unduly trench upon” the IRCA, as Congress chose to include a provision in the LHWCA expressly authorizing the award of benefits “in the same amount” to nonresident aliens.
The court left open the possibility that an alien who was about to be deported or was sure to be deported might not be eligible for future lost wage benefits calculated as they would be earned in the US.
Wednesday, April 14, 2010
As Alan Hyde points out in the comments to Paul's post on the Massey Coal Mine disaster, that particular story does not talk about the fact that the mine is non-union. There has been some discussion of that, though, on NPR and in Businessweek, for example.
I found it surprising that there has been relatively little discussion of the Caperton case, as well and tying all of what seem to be the main strands of the cause of this disaster together--the economic dominance of Massey in the region, the political shenanigans, the union busting, and the reflexive contesting of regulators' safety warnings. For some integration of those, I found Patrick S. O'Donnell's post at ReligousLeftLaw.com and the report this morning on NPR about the relatively good salary and benefits thought provoking.
Tuesday, April 13, 2010
Thanks to Beth Thornburg (SMU) on the Civil Procedure Listserv for the heads up on this revealing story from NPR on the worst coal mine disaster in decades:
An NPR News Investigation shows that the Upper Big Branch mine in West Virginia is not the only Massey Energy mine with a litany of safety violations, citations and fines.
Twenty-nine miners died last week in an explosion at the Upper Big Branch mine. Federal mine safety records document repeated safety problems at that mine. Now, NPR's analysis of federal records indicates a similar pattern at nine other Massey mines in Virginia, West Virginia and Kentucky.
NPR reviewed 2009 safety inspection records available from the Mine Safety and Health Administration for all 35 active underground coal mines owned by Massey Energy.
Four Massey mines had injury rates more than twice the national rate last year. The national rate is 4.03 injuries per 200,000 worker hours. Massey's Tiller No. 1 mine in Tazewell, Va., had the company's highest injury rate at 9.78. The other high-injury mines are Slip Ridge Cedar Grove (9.18) in Raleigh, W.Va., M 3 Energy Mining's No. 1 (8.86) in Pike County, Ky., and Solid Energy Mining's Mine No. 1 (8.49), which is also in Pike County.
Together last year, the 10 Massey mines with above-average injury rates received 2,400 safety citations.
Challenging Citations, Delaying Fines
Massey's long list of citations has some wondering whether the federal mine safety inspection system works.
"Part of the strategy by the mine operators [is], 'Well, we're going to contest everything,' " says Bruce Dial, a mine safety consultant who spent 24 years as a federal mine inspector and inspection trainer.
Dial is referring to the citations and fines leveled by federal inspectors. In the past four years, he says, in the wake of the Sago Mine disaster in West Virginia, inspections, citations and fines increased. Challenging the citations delays the payment of fines.
"It takes so long to get [citations] through the review commissions, they don't end up paying fines until it's three, four, five years down the road," he says.
In fact, 16,000 citation appeals are pending right now, and they're worth millions in fines. Massey Energy alone, according to NPR's analysis, has had more than $7.6 million in fines. That's over five years at those 10 high-injury mines. The company has paid just $2.3 million of that amount so far.
Massey did not respond to NPR's request for comment but said in a statement last week that its rate of violations (per day of inspection) at its Upper Big Branch mine is consistent with the national average.
That's not true, says Ellen Smith, owner of Mine Safety and Health News.
And in case you were not heart sick about this: "as recovery crews prepared Monday to remove the last of the bodies from the Upper Big Branch mine, S&P Equity Research issued a rosy financial review of the mine disaster's impact on Massey Energy's bottom line."
Wondering why civil procedure people are interested (except that they are tremendous group of good heart people)? Beth explains:
For those interested in the Caperton case (campaign contribution/judicial recusal), Don Blankenship, the man responsible for the huge campaign contribution to the WV Supreme Court judicial candidate, is the owner of Massey Energy – the company that had a big case coming before the WV court as the contributions were made.
Wednesday, March 24, 2010
We reported in early February that KBR/Halliburton had filed a cert petition in the Jones case, which, you may recall, involved allegations by employee Jamie Leigh Jones that she was drugged and raped by several of her coworkers in her quarters in Iraq. According to Scotusblog, KBR has now withdrawn that petition.
A spokesperson for KBR said that the company did not want to risk running afoul of the Franken Amendment, which precludes a defense contractor (for certain contracts) from receiving 2010 Defense Appropriation funds if the contractor enforces an existing arbitration agreement that would require the arbitration of claims under Title VII of the Civil Rights Act of 1964 or any tort claim related to or arising out of sexual assault or harassment. KBR had insisted in its petition that the amendment did not affect this case, but apparently has now changed its mind out of concern that at least one of its current federal contracts might be jeopardized by asking the Supreme Court to force Jones to arbitrate her claims. So at least some of Jones' claims will now go forward at the trial court.