Workplace Prof Blog

A Different Kind of Workplace Safety

Michael Maslanka over at WorkMatters reviews Robert Sutton's new book, Good Boss, Bad Boss.  Maslanka writes:

[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.

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Using Social Networking Evidence in Workers' Comp Cases

Gregory M. Duhl (William Mitchell) & Jaclyn S. Millner (Fitch, Johnson, Larson & Held) have just posted on SSRN their article (forthcoming 31 Pace L. Rev.) Social Networking and Workers’ Compensation Law at the Crossroads.  Here's an excerpt from the abstract:

... 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.

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.

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The High Cost of Cheap Food

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.

MM

NY Enacts Domestic Workers' Bill of Rights

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.

MM

Popcorn Lung Verdict

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).

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Workers' Comp Issues in the BP Oil Spill

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:

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• Oil Spill Likely to Lead to Future Workers' Compensation Claims, and
• Going In-Depth with the Laws Governing Injured Oil Spill Workers Claims.

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NY Senate Passes Home Care Workers' Bill of Rights

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.

MM

Immigration Status Irrelevant under Longshore and Harbor Workers' Compensation Act

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.

MM

More on Massey

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.

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Backgrounder by NPR on Massey Coal Mine Disaster: Repeated Safety Problems in the Past

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.

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KBR Withdraws Cert. Petition

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.

MM

Gonzalez on Encouraging OSHA Whistleblowing

Jarod Gonzalez (Texas Tech) has just posted on SSRN his article (forthcoming EREPJ) A Pot of Gold at the End of the Rainbow: An Economic Incentives-Based Approach to OSHA Whistleblowing.  He presented this as part of a fantastic panel on OSHA at this month's AALS Annual Meeting.  Here's the abstract:

Labor and employment law whistleblower statutes focus on protecting employees who complain about workplace violations by prohibiting the employer from taking an adverse employment action against the whistleblower because of his or her complaint. It is an open question whether even the strongest of anti-retaliation protections in whistleblower statutes do much to encourage employees to report wrongdoing. If more of the right kind of whistleblowing is beneficial from a policy perspective, it is important to consider other models for encouraging potential whistleblowers to act. In the workplace safety and health area, OSHA-enforced whistleblower statutes follow the traditional anti-retaliation model and have generally failed to motivate the right type of whistleblowing and protect those who do make complaints. This piece outlines an "economic rewards" approach to OSHA whistleblowing in which an employee who complains to the Department of Labor about a federal workplace safety and health violation could ultimately receive a monetary reward for the tip if the Department subsequently determines that a workplace safety and health violation occurred. While this type of approach is a novel one in the workplace safety and health area, it has worked well in the context of fraud against the government. Transporting this model to workplace safety and health has some appeal even though there are a variety of technical issues that would have to be considered for such an approach to be realistic.

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Invitation to Participate - UK OSHA Conference

The Law Department of Middlesex University, London and ADAPT, the Centro Studi Marco Biagi of the the University of Modena in Italy are holding an International Conference at the Hendon campus of Middlesex University, London on Tuesday 8 June  2010.

The theme is the significant health and safety issues related to precarious working and vulnerable workers. Presentations will be given by leading researchers in the field with papers presented by academics from Europe, Australia and New Zealand and the USA.  Susan Bisom-Rapp (Thomas Jefferson) will be presenting a keynote speech during a plenary session.
 
You are invited to register and reserve a place at the conference by email to Denise Arden at D.Arden@mdx.ac.uk.  Please provide your name, institutional affiliation and full contact details.

For further information please contact either Professor Malcolm Sargeant at M.Sargeant@mdx.ac.uk  or Professor Brenda Barrett at B.Barrett@mdx.ac.uk.

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Solis Acts on Workplace Safety

 The Washington Post is reporting on some recent, aggressive moves by Department of Labor Secretary Solis on workplace safety.  Many of her actions seem to be moving away from OSHA's previous stress on cooperation with employers.  There also appears to be a serious fear among employers that the Clinton-era ergonomics rules will be revived, but it's unclear what if any action is occurring on that:

Solis made a splash in October when OSHA slapped the largest fine in its history on oil giant BP PLC for failing to fix safety problems after a 2005 explosion at its Texas City refinery.

Garnering less attention, she just finished hiring 250 new investigators to protect workers from being cheated out of wage and overtime pay. She also started a new program that scrutinizes business records to make sure worker injury and illness reports are accurate. And she is proposing new standards to protect workers from industrial dust explosions - an effort the Bush administration had long resisted. . . .

Labor Department spokesman Jaime Zapata said the idea of helping businesses understand the rules remains an important part of the agency's strategy, along with stepped-up enforcement. Solis plans to hire 100 new OSHA inspectors next year. . . .

The massive fine against BP certainly caught the public's attention, but other businesses are also paying a steep price for violating safety rules. Two months into the new fiscal year, OSHA has already cited six companies for "egregious" violations that carry the highest penalties. There were only four such egregious cases in all of the previous year.

Solis said her agency this year will tackle 90 new rules and regulations next year. One change would give workers more information about how their pay is computed. Another would make employers disclose whether they sought advice from anti-union labor consultants.

-JH

Michaels Confirmed as OSHA Adminstrator

 Last week, the Senate confirmed David Michaels as the OSHA Administrator.  We gave a brief bio when he was nominated, which looks like he'll probably be making some changes at the agency.  Whether he has any funds to do so is another question.  Either way, it's good to finally have someone at the helm.

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-JH

Franken Versus Mandatory Arbitration

Following up on a lecture I gave about resolving workplace disputes, I played this and this in class.  The students appeared to be interested, as they engaged in some lively debate about mandatory arbitration after watching the videos.  Senator Franken's comments are also sparking some lively debate on the Hill.  

KK

Widespread Employer Under-Reporting to OSHA

So finds a new astonishing and disturbing report released by the GAO yesterday and reported on by the New York Times:

Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday.

The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.

The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs . . . .

According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records.

It goes without saying that it is hard for OSHA inspectors to do their jobs if they are faced with this type of lying/gamesmanship.  It also shows that previous reports that injuries in the workplace were declining during the conservative Bush era are a bunch of hogwash.

OSHA inspectors will now have to start with the presumption that employers may be holding back the truth as far as injuries and illnesses in the workplace and will have to interview individual employees to get information on what is really going on in the workplace: "In response to the report, which examined OSHA’s audits from 2005 to 2007, the safety administration said it would adopt the accountability office’s recommendations, which include requiring inspectors to interview employees during all audits to check the accuracy of employer-provided injury data."

And you wonder why regulation of the workplace is necessary? Because many employers (not all) cannot be trusted.

Hat Tip: Josh Pollack

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OSHA Fines BP a Record $ 87 Million for Unabated Violations

The Department of Labor has announced that OSHA has imposed a record-setting fine against BP, which held the prior record for a fine, stemming from a refinery explosion in 2005. From the press release,

Safety violations at BP’s Texas City, Texas, refinery resulted in a massive explosion — with 15 deaths and 170 people injured – in March of 2005. BP entered into a settlement agreement with OSHA in September of that year, under which the company agreed to corrective actions to eliminate potential hazards similar to those that caused the 2005 tragedy. Today’s announcement comes at the conclusion of a six-month inspection by OSHA, designed to evaluate the extent to which BP has complied with its obligations under the 2005 agreement and OSHA standards.

“When BP signed the OSHA settlement from the March 2005 explosion, it agreed to take comprehensive action to protect employees.  Instead of living up to that commitment, BP has allowed hundreds of potential hazards to continue unabated,” said Secretary of Labor Hilda L. Solis. “Fifteen people lost their lives as a result of the 2005 tragedy, and 170 others were injured.  An $87 million fine won’t restore those lives, but we can’t let this happen again. Workplace safety is more than a slogan.  It’s the law. The U.S. Department of Labor will not tolerate the preventable exposure of workers to hazardous conditions.”

For noncompliance with the terms of the settlement agreement, the BP Texas City Refinery has been issued 270 “notifications of failure to abate” with fines totaling $56.7 million. Each notification represents a penalty of $7,000 times 30 days, the period that the conditions have remained unabated. OSHA also identified 439 new willful violations for failures to follow industry-accepted controls on the pressure relief safety systems and other process safety management violations with penalties totaling $30.7 million.

“BP was given four years to correct the safety issues identified pursuant to the settlement agreement, yet OSHA has found hundreds of violations of the agreement and hundreds of new violations. BP still has a great deal of work to do to assure the safety and health of the employees who work at this refinery,” said acting Assistant Secretary of Labor for OSHA Jordan Barab.

It's good to see OSHA following up on its prior settlement, but very disturbing that BP doesn't seem to have been deterred by the prior accident and fines. Maybe this one will stick.

MM

Bisom-Rapp on OSHA & NIOSH

Susan Bisom-Rapp has just posted on SSRN her article (forthcoming Wayne L. rev.) What We Learn in Troubled Times: Deregulation and Safe Work in the New Economy. Here's the abstract:

Reviews of how federal agencies functioned during George W. Bush’s presidency reveal many instances of regulatory capture by industry. One prototypical example is the Occupational Safety and Health Administration (OSHA), the agency responsible for occupational safety and health (OSH) standard setting and enforcement. In contrast, a broad array of stakeholders during the Bush years gave good marks to an entirely separate agency, the National Institute for Occupational Safety and Health (NIOSH), which conducts research and develops recommendations to prevent workplace injury and illness.

By reviewing the disparate performance of OSHA and NIOSH during the Bush administration, this article sheds light on the OSH challenges facing employees in the new economy, highlights better ways of protecting workplace safety and health, and identifies sustainable practices worth preserving and strengthening. To those ends, the academic debates surrounding new governance scholarship and responsive regulatory techniques provide a backdrop. Situating the safety agencies' recent records within those debates reveals the pitfalls of traditional and new approaches to regulation and the synergies between them. To improve the safety and health of America’s increasingly vulnerable workers, both approaches are required but must be linked. Yet the necessary links between them may be more diffuse than many scholars assume. In other words, it is not necessary or advisable for all cooperative, reflexive, and participatory programs to be housed in traditional regulatory agencies. During periods when, as in the last administration, deregulation is ascendant, agencies that lack enforcement powers may be better positioned to obtain substantive results than are their regulatory counterparts.

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An OSHA Rule Siting

For a federal agency like OSHA that has something like thirty-five permanent standards in their nearly 40-year existence, even proposing a revised standard is big news (BTW, not that OSHA hasn't tried to put standards out over the years).

Anywho, this time OSHA is focused on modifying its Hazard Communication Rule and seeks comments on it from the public.  This proposed Rule would modify OSHA's existing hazard communication standard to conform with the United Nations' globally harmonized system of classification and labelling of chemicals.

If you have insomina, the 679-page rule (BNA subscription required) will certainly do the trick.  I mean who isn't excited about reading up on criteria for classification of chemical hazards; labeling provisions that include requirements for use of standardized signal words, pictograms, hazard statements, and precautionary statements; and specified format for safety data sheets. 

Comments may be submitted electronically at http://www.regulations.gov, within 90 days of publication in the Federal Register; by fax to the OSHA Docket Office at (202) 693-1648; or by mail to the OSHA Docket Office, Docket No. OSHA-H022K- 2006-0062, U.S. Department of Labor, Room N-2625, 200 Constitution Avenue, NW, Washington, DC 20210. All submissions must include the agency name and the docket number for this rulemaking (Docket No. OSHA-H022K-2006-0062).

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