Wednesday, December 4, 2019
I'm very pleased to announce the publication of my Wyoming Workers' Compensation treatise. I'm especially tickled that I was able to do it "open source":
A Treatise of Wyoming Workers’ Compensation Law seeks both to introduce Wyoming workers’ compensation students to the law of their own jurisdiction, and to provide a continuing resource to those same students as they embark on workers’ compensation legal practice after graduation. In this way, the text fills a gap in the literature by serving as a concrete exemplar of what it means to assist students in becoming “practice-ready” as soon as possible after graduating from law school. In short, practice ready lawyers must have some exposure to the law of their own jurisdictions. Furthermore, Wyoming Workers’ Compensation Law is meant to be a resource to all practicing lawyers in the state of Wyoming. This objective is intimately connected with the mission of the University of Wyoming as a Land Grant Institution broadly striving to serve the needs (including legal needs) of Wyoming citizens.
Substantively, the treatise canvasses the traditional areas of workers’ compensation law: employee/employer definitions, causal connection to work, evaluation of the extent of disability, types of benefits, and a brief discussion of the Wyoming administrative structure. In several places the treatise first introduces a substantive area of law generally, for example “causal connection,” and then focuses on how Wyoming analyzes the area of law. In discussing some substantive areas of workers’ compensation law, the treatise underscores especially unique Wyoming idiosyncrasies. Not content to merely “restate” the law, the treatise in certain areas subjects the law to academic criticism and suggests legal reform in order to stimulate broader discussion of the legal doctrine.
The text is free to download. You just need your name, email address, and law school affiliation (which I don't think is aggressively policed so you can probably simply enter the name law school closest to where you reside).
Michael C. Duff
Monday, November 25, 2019
Gig Economy Article by Keith Cunningham-Parmeter (Williamette Law School) is One-stop Shopping to Understand the Misclassification Debate Surrounding Platform-based Gig Workers
In a new article, the author argues that the traditional common law right of control test is inappropriate, and unworkable, for analyses of whether workers in the platform-based gig economy are employees or independent contractors. See Keith Cunningham-Parmeter, Gig-Dependence: Finding the Real Independent Contractors of Platform Work, 39 Northern Illinois University Law Review 379 (2019).
The author, Keith Cunningham-Parmeter, identifies the long-appreciated reality that the control test was developed centuries ago as the criterion of establishing whether the negligence of an agent of an enterprise, towards a third party, could be ascribed to the enterprise via respondeat superior. If control, or the right of control, existed, then the enterprise would be considered the master, the agent the employee, and vicarious liability would attach.
This test has, over the last century, been cut-and-pasted over to areas like wage and hour protections and, of course, workers’ compensation. Certainly this describes the Pennsylvania experience and the current law, 104 years after enactment.
But all of this, the author correctly argues, really does not make any sense. Respondeat superior is based on the idea that an entity which has the power to control a disempowered, subordinate actor presumably also has the economic wherewithal to answer for such an agent’s torts. When such control does not exist, and the agent can be viewed as economically autonomous, it makes sense for that party, a truly independent actor, to be responsible for its torts – and the enterprise protected.
Programs like the Fair Labor Standards Act and workers’ compensation, on the other hand, were intended to expand the responsibilities of such enterprises to workers. The control criterion does not vindicate this purpose. In the author’s view, economic autonomy, and not control, should be the controlling test when considering whether a worker is really an independent contractor.
The author commences his article with an account of the efforts of platform-based gig enterprises – via “clever branding” – to establish their workers as independent contractors. He refers to this practice as reflecting “platform exceptionalism.” The idea here is that the gig economy presents a whole new type of business innovation that does not have employees in the first place. After all, for example, Uber is not a transportation enterprise but, instead, a technology company. The author is, rightly, suspicious of this rhetoric.
In any event, to remedy the situation, the author argues that courts and legislatures should follow the example of the California Supreme Court in the recent Dynamex case. See Dynamex Operations, W. v. Superior Court, 416 P.3d 1 (Cal. 2018). That case, he explains, “embraced a simplified standard – the so-called ‘ABC Test’ – to determine whether contemporary workers are genuine independent contractors. Rather than engage in the … [control-dominated] multifactorial balancing – a process guaranteed to yield muddled results – the ABC test begins with the presumption that most workers who provide labor to firms are employees. If firms want to overcome this presumption, they must prove three separate elements to establish that their workers possess the marketplace strengths of legitimate independent contractors.”
Those three elements, notably, are inquiries into whether the worker is engaged in the firm’s usual course of business; whether he or she is operating a separate business; and whether the worker is free from control of the purported principal.
The author notes that use of this test does not necessarily mean that all platforms will be deemed employers. For example, delivery services workers (as in Dynamex) for enterprises like GrubHub may well be deemed employers, but handymen working for a “chore” platform like TaskRabbit may well be deemed independent contractors.
The author’s footnotes feature a seemingly unabridged recounting of all the latest cases and scholarship in this area. This straightforward and well-written article is one-stop shopping for the lawyer or judge seeking out the latest arguments, pro and con, on the misclassification debate surrounding platform gig workers.
Sunday, November 24, 2019
The late 1980s and much of the 1990s were the period of the "Hearing Loss Wars" in Pennsylvania workers’ compensation. Most lawyers and judges came to learn the basic aspects of the law and medicine of hearing loss. We knew by heart that 90 decibels was the OSHA limit for an eight-hour workday, that a worker who experienced a “temporary threshold shift” had no doubt sustained some level of permanent sensorineural loss, and we routinely heard of the 6000 to 8000 hertz “notch” of the typical audiogram.
So intense and litigated were hearing loss cases that my treatise on workers’ compensation features nearly 30 single-spaced pages devoted to the law and practice of such claims.
Those wars are over now, likely because of the decline of manufacturing in our state. If they return, however, both the novice and the hoary veteran will want to read journalist David Owen’s new book, Volume Control: Hearing in a Deafening World (Riverhead Books 2019).
The author, in a chatty, personal-journey type account, reports here on his investigation into hearing loss, remedies for the same, and seemingly all of its cultural manifestations. Owen, specifically, explores the mechanics and physiology of hearing loss, causation, audiograms, how such losses have been interpreted over the centuries, the experience of the deaf, the business and progress of hearing aids and cochlear implants, and regulation of noise in industry, the military, and in our personal lives.
Owen frequently turns philosophical about hearing loss. For example, would it be better to be blind or deaf? Owen suggests that most people who have thought about the issue at length believe that deafness is much worse, as it interferes with communication and estranges the victim from society. On another issue, why is it that most of us know that exposure to loud noise can be harmless, but we ignore the hazards nonetheless? One reason is inconvenience or sloppiness, to which we probably can all attest, but it turns out that, as well, the brain actually likes certain things, like music, loud. Rock concerts (and the finales of Brahms symphonies, I would add), are not overwhelmingly loud for nothing.
The irony, however, is that even soft noises, like the drip of a leaking faucet, can be irritating. Hearing, the author’s interviewees point out, is closely related to our emotions. The author, in this regard, might well have identified loud, unmuffled motorcycle exhaust; giant exhaust pipes on pick-up trucks; and car stereos with exaggerated subwoofers supporting vulgar lyrics. None of these noise sources probably damage hearing, but they disrupt the peace of whole neighborhoods.
Owen’s most interesting chapters address the recent improvements in hearing aids. For many years, a few companies controlled the market, and for an aid to be adjusted required a trip to the audiologist. Now, however, regulation is loosening, and many enterprises market other devices that aid in hearing, short of being hearing aids. Owens’ chapter, “Beyond Conventional Hearing Aids,” was the most enlightening for this reader.
In the realm of occupational noise, Owen discusses one item that was often discussed at hearing loss medical depositions, to wit, the role of loud noise in the workplace that was not shown to be in excess of the OSHA thresholds. Experts suggested to Owen that such noise may well, indeed, cause hearing loss – the OSHA standard is hardly definitive in establishing which workers have sustained occupational hearing loss and which have not. As Owen states, correctly, the OSHA standards “say that if you work in a covered industry you can legally be exposed to eight continuous hours of 90-decibel noise (motorcycle eight meters away, lawn mower), or to two hours of 100-decibel noise (New York City subway car, jackhammer, kitchen blender, snowmobile), or to thirty minutes of 110-decibel noise (car horn one meter away, chain saw) – every day of your career .…” Owen concludes, “Probably the best that can be said about the rules is that they’re better than nothing.”
In his final chapter, Owen nods his head briefly to the issue of law and regulation. The residents of some urban areas have revolted, in this “deafening world,” and insisted on noise regulation. But, as Owen correctly states, enforcement is a major problem. Already-overworked law enforcement personnel may be reluctant to spend lots of time doing noise control, and some urban areas are unavoidably going to be noisy. He uses the all-night garbage collection trucks of Manhattan as a familiar and persuasive example.
Owen’s book is not heavily footnoted, but his bibliography features what seem to be excellent references, usually supported by websites, for further reading. The book would have benefited by illustrations and diagrams, but overall this new book is an enriching one for the workers’ compensation professional.
Especially for those who missed the Wars.
Saturday, November 23, 2019
Principled Article by Chapman University Law Professor Lan Cao Argues for FLSA Protections for Inmates Working in the Prison Labor Industry
In a new law review article, the author, a law professor, argues that prisoners, when undertaking most aspects of labor, should be considered employees, covered by the Fair Labor Standards Act, and receive at least minimum wage. Limited authority surrounding this issue exists from the federal courts, but the overwhelming rule is that prisoners generally enjoy no such protections. See Lan Cao, Made in the USA: Race, Trade, and Prison Labor, 43 N.Y.U. Review of Law & Social Change 1 (2019).
The author’s advocacy follows her long investigation into what she says is a trend of private companies contracting with federal, state, and private prisons to employ prisoners as labor in the provision of services and the manufacture of goods. She shows that use of prisoners by for-profit enterprises has long been a matter of tension, particularly where such work, which is often at nominal or no wages, creates an advantage over enterprises that employ free labor at prevailing (or even minimum) wages. In the last few decades, however, with the rising prison population, such employment has also risen, with private companies contracting with federal and state agencies for inmates to undertake such things as manufacturing apparel and answering calls at call-in centers. Cao cites several muckraking stories on this issue, referencing articles in Mother Jones, The Christian Science Monitor, and an investigation by Pro Publica.
Cao argues that the idea that work by prisoners is solely “penological” and rehabilitative is a fiction. She asserts, on this point, that no research supports the proposition that inmates who work actually experience a lower recidivism rate. A better policy in this area, she says, would be for inmates to receive wages and develop savings, which in turn would facilitate an easier return to society after release from confinement.
Cao notes that some laws provide that prison work is not to be undertaken in a manner that would create unfair competition. However, she states that such rules are often flouted, and that the federal government has outsourced policing of such laws to an industry group. She in effect asserts that the chickens are guarding the hen-house. The author throughout depicts the prison labor industry in such negative terms. Her most acid commentary addresses the industry’s cynical attempt to depict American prisoner labor as part of the “reshoring” of manufacturing and as a part of the “Made in the USA” movement.
Cao does not discuss at length the role of workers’ compensation, but if inmates are considered neither employees of the prison or of the contracting for-profit company for which they labor, they are not going to have FLSA, unemployment, or workers’ compensation protections. She does quotes one entrepreneur as indicating that he prefers prison work for his company because he avoids the burdens of such benefit costs. (Ironically, some employers also like inmates as workers because their absenteeism is lower.) She also identifies California as a state where an inmate can receive workers’ compensation, but only upon release from confinement. Notably, though not mentioned by Cao, the federal government, at 18 U.S.C. § 4126, maintains the Inmate Accident Compensation System, characterized as “the equivalent of a prison inmate’s workers’ compensation program,” which is “the exclusive means of recovery against the Government for a federal prisoner’s work-related injuries, and bars suits for damages for such injuries” under the Federal Tort Claims Act.
In Pennsylvania (my state), WCJ and Board decisions exist where prisoner attempts at securing workers’ compensation have been rejected. The leading case is by Judge Bruce Doman (Allentown), who rejected the proposition that a prisoner could be conceived of as providing services to another for a valuable consideration. See Paar v. State Correctional Institute (May 28, 1993), filed May 28, 1993 (Doman, WCJ) (“‘Work’ in the claimant’s prison environment is a rehabilitation tool for the claimant’s benefit, rather than a service for the employer. Volunteering for work in a prison cannot be equated with voluntary acceptance of employment for a free citizen, because the inmate’s alternatives are limited…. The Act was first passed in 1915. In the 78 years since, no case has reported an award of Workmen’s Compensation to an inmate and for good reason. A duly sentenced inmate cannot be considered to be an employee of the institution that confines him. Employment and imprisonment may share some characteristics, but they are plainly not the same.”).
Professor Cao, of course, knows all about this type of reasoning but asserts that such analysis should not be valid when taking into account the for-profit motives of the prison labor industry.
In any event, if limited, or absent, state workers’ compensation remedies exist, what of tort law? One scholar has argued that the Eighth Amendment, which proscribes “cruel and unusual punishments,” should be applied to prisoners injured while laboring at their jobs in prison industries. She argues, specifically, that such prisoners should be deemed to have claims based on this proviso when they suffer their injuries on machinery that prison officials know is defective, malfunctioning, and dangerous. In addition to her constitutional analysis, she summarizes briefly the various state workers’ compensation laws as they address the compensability of prisoner injuries. The variety of approaches is indeed quite remarkable. She finds them too scattered and ineffective to cause prison officials to be leveraged to safe workplace practices. In her view, only by way of threat of a viable constitutional claim can this purpose be fulfilled. Dougherty, The Cruel and Unusual Irony of Prisoner Work Related Injuries in the United States, 10 University of Pennsylvania Journal of Business & Employment Law 483 (Winter 2008).
In crafting her legal argument about the FLSA, Cao sets forth one admonition at the outset: any right under the law must be based on that law and not under constitutional precepts. In this regard, it is sometimes forgotten that the Thirteenth Amendment does not proscribe slavery as to convicted prisoners. It states, “[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party has been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”
Wednesday, November 20, 2019
Pennsylvania Judge Cohn Jubelirer Writes on Appellate Judging, Pennsylvania's Commonwealth Court, and Workers' Compensation Appeals
Commonwealth Court (Pennsylvania) Judge Renee Cohn Jubelirer, in a new law review article, posits that her court’s codified Internal Operating Procedures, norms, and traditions, all contribute to an effectively-operating court where communication makes for better decision-making and lack of personal tensions among the judges. The judge’s article is a rare offering: a longstanding sitting judge’s sometimes behind-the-scenes account of how a court operates. See Renee Cohn Jubelirer, Communicating Disagreement Behind the Bench: The Importance of Rules and Norms of an Appellate Court, 82 Journal of Law & Contemporary Problems 103 (2019).
Commonwealth Court is the unique Pennsylvania appeals court that takes appeals from agencies, like the Workers' Compensation Office of Adjudication, and trial courts, outside of criminal cases, when the Commonwealth or some other governmental agency has been a party.
As a prelude to her must-read discussion about the Commonwealth Court, the judge discusses several aspects of the nature of appellate decision-making. She sets forth, for example, what perhaps we all know intuitively: the idea of having a multiple-member court, on appeal, is basically that two (or more) heads are better than one: “The appellate design assumes that judges working together will communicate and consider different points of view, which increases the probability of reaching a better decision than would a single judge.” The design is “‘specifically structured to promote a collaborative form of decision making," which presumably improves the quality of accurate decisions, free of bias, and consistent with precedent.
And, indeed, as the judge shows us, a significant literature, mainly centered on the federal courts, has addressed the behavior of appellate judges, seeking to ascertain whether this assumption works in the trenches. Judge Richard Posner, for example, has remarked on such issues in his book How Judges Think (2008). Apparently not everyone accepts the common wisdom that multi-member appellate courts will necessarily engage in constructive, collaborative decision-making.
Judge Cohn Jubelirer is at odds with such naysayers, and believes that Commonwealth Court, for its part, achieves the related goals of collegiality and collaboration.
The judge’s review of her own court commences with a brief history of that body, a note on its unique original jurisdiction, and a review of the Internal Operating Procedures and other rules that guide how the panels receive their assignments, vote, and, if necessary, conference on disputed issues. The judge insists that the court’s (1) tradition of placing a premium on collegiality and, famously, (2) policy of having all members vote on every case, leads to a minimum of unnecessary friction, avoids gratuitous (my word) dissents, and helps to ensure consistency of the law. On this latter point, Commonwealth Court has a goal of “polic[ing] itself to maintain consistency of precedent and development of the law….”
The judge’s discussion of “Judicial Conference,” convened on cases where significant disagreement exists, will perhaps be the most revealing for most readers. When this writer was a clerk at the court, first for Judge Craig and then for Judge Barry, we were not allowed into such sessions:
A central feature of the deliberative process is our judicial conference. If four judges disagree with the majority opinion, the opinion cannot be filed, and the matter is sent to judicial conference, where all the judges gather and discuss those cases. Judicial conferences are held in person nine times a year during argument sessions…. At conference, the judge who wrote the majority opinion speaks first and explains why the majority opinion is correct on the facts and the law. The other judges can, and do, ask questions about the factual record, the parties' arguments, legal precedent, and reasoning. Then, if there is a dissent, the dissenting author explains why that opinion is correct, and, again, the judges can, and do, ask questions. If there was no dissenting opinion, the objecting judges explain their objections. There is a discussion during which any judge can speak without regard to seniority as many times as needed. At the end of the discussion, the president judge holds a vote, with the newest judge voting first…
Many perhaps knew of this process. The judge further shares with us, however, that Judicial Conference can become fairly animated:
All the judges prepare for judicial conference, many as if for oral argument. Some judges strategize in their preparation. Prior to conference, a majority writer may think long and hard about whether to withdraw the opinion and rewrite when five or more judges voted in opposition to the majority opinion. The judges [who I interviewed] all felt that the effort costs are worth the benefits of conference…. There is an expectation that disagreements will be honestly aired at a conference that is “always heated and wonderful,” where the judges “really care and battle it out.” ….
And the Conference has objectively proven successful: “Minds are changed when knowledgeable judges participate in discussion, even though they were not on the panel. Because everyone participates, and has at different times been a majority writer as well as an objector or dissenter, it is not personal…. . Judges listen to their colleagues and may change their minds.”
In a special insight, Judge Cohn Jubelirer notes, “Conference gives all the judges a voice in the decision, so everyone can be heard and then accept the decision. There is a sense that if some judges did not have input into the precedent, they might try to diminish it by distinguishing it in subsequent opinions.”
Cohn Jubelirer completes her analysis with a nod towards empiricism. She seeks to determine, for the 304 workers’ compensation appeals adjudicated in the year 2007, whether the make-up of the various panels (on the criteria of political affiliation) yielded any meaningful difference in whether employer or injured worker prevailed. Though acknowledging that the data set she is using is small, she discerns, in the end, no bias. The welcome results of her study, she states, “support that there are no real panel composition effects based on political party.”
With some luck, that is the result, in material part, of the judges effectively collaborating and seeking, wherever possible, a reasonable and accurate consensus.
Monday, November 18, 2019
New Novel by Andrew Miller, "Now We Shall be Entirely Free," Animated by Brutal Child Labor of Early 19th Century England
The first phase of the industrial revolution unfolded in England during the late eighteenth and early nineteenth centuries. The early cotton mills of that period were known for being sweatshops and dangerous to life and limb. They were typically manned by women and children, the latter often working in brutal, virtually slave-like conditions. These were the types of environments, of course, that inspired Dickens as he wrote Oliver Twist and David Copperfield.
Notably, before workers and reformers ever lobbied for safety, for changes to tort law, and then for workers’ compensation, they argued for restrictions on such labor.
This environment comes alive, if only briefly, in a new historical novel by British author Andrew Miller. In Now We Shall be Entirely Free (Europa Editions 2019), the protagonist is a young army officer (Lacroix) who has fought against Napoleon in the British effort to ally with Spain in trying to repel (unsuccessfully) the French invasion. Unfortunately, the British are routed at the Battle of Corunna (1809) and, during the retreat, LaCroix is put in charge of a group of stragglers, wounded, and ne’er-do-wells. Mentally and physically overwhelmed, in the end he is unable to prevent his soldiers from committing atrocities against Spanish villagers.
Back in England, Lacroix seeks to find himself, journeying to rural Scotland, but he is pursued by a pair of assassins charged by both the British and Spanish to exact revenge for the massacre.
As it turns out, the lead assassin, a British corporal, is a sociopath who developed his violent instincts while working in an early cotton mill, brought in from London as an orphan boy to undertake forced labor. Calley (yes, that’s his name) relates that unforgiving work – fourteen-hour days – to his colleague as they traverse the English countryside in pursuit of Lacroix.
For a boy, Calley relates, to fall asleep in the final hours of the day, brought beatings “without pause” from the overseers, but this punishment was not as hazardous as the unshielded moving machinery: “There was a girl called Lizzie …. She had ginger hair for a start. Anyway, the dozy cow slipped when she was under the machine and the belt caught her hand and took off her arm at the shoulder. She was nine…. She lived. They gave her a job running messages, one arm being enough to carry a piece of paper with.”
The brutality of the cotton mill, particularly in the punishment of young girls, is to have a direct effect in the Spanish atrocity.
Andrews has the special skills of creating atmosphere and making the reader care about his characters. The fan of historical fiction will be engrossed by this dark, unusual account of human suffering in the early days of the industrial revolution.
Saturday, November 16, 2019
Journalist Steven Greenhouse’s new book is a tour de force history of the labor movement, particularly as it has unfolded since the New Deal. See Beaten Down, Worked Up: The Past, Present, and Future of American Labor (Penguin/Random House 2019).
And the book is, indeed, a history of labor and not simply of unions. The author, in this regard, treats the remarkable phenomena of fast-food workers campaigning for equitable pay in the “Fight for $15” movement and immigrant tomato harvesters fighting for humane working conditions in Florida. These are workers who were not, and are not likely to be, laboring under the auspices of a collective bargaining agreement. The same can be said of the Amazon and Wal-Mart workers he discusses, who have connected via Facebook and other Internet vehicles to work towards better pay and working conditions.
While this new book discusses all aspects of labor, front and center is the unavoidable account of the decline of union power and influence. Greenhouse, in this regard, sets forth the familiar, shocking statistics: only 6.4% of workers in the private sector enjoy union protection, with only 10.5% of the workforce, overall, unionized. He explains the many reasons for this phenomenon, which in fact seems to have been a long time coming, ever since the Taft-Hartley Act made it harder for workers to unionize. More recent developments are the changing nature of employment and industry, labor’s own bad image, the remorseless efforts of corporations to fight unionization, and the Citizens’ United effect of allowing millions of business-interest dollars into political campaigns.
For those sympathetic to labor, the Greenhouse book is a grim read. On hopeful notes, he identifies recent successes, such as the remarkable influence of Culinary Workers’ #226 in Las Vegas, which brought collective bargaining to most of the resort casinos; and the rebellion of underpaid public-school teachers in West Virginia and Oklahoma, where even Trump-supporting educators joined with their union colleagues and successfully demanded fairer treatment. Still, Greenhouse asserts that major changes in the National Labor Relations Act, and in how unions imagine and run themselves, will be required before most workers gain true voice and are treated and paid fairly.
The issues of workplace safety, and compensation for the same, are part of the story, if only on the periphery. In the present day, he observes, employment sites where worker representation is absent often feature significant hazards to health (he sets forth, among others, an utterly plausible account of a dangerous recycling plant). Meanwhile, gig labor platforms like Uber establish their workers as independent contractors, often disavowing responsibility for safety and compensation. And, in a return to the roots of the modern labor movement, the author sets forth a portrait of the redoubtable Frances Perkins, who was animated by the Triangle Shirtwaist Factory fire to devote her career to workplace safety, workers’ compensation, and other forms of social insurance.
An account new to this writer: Martin Luther King, Jr. was famously (and fatefully), in Memphis in 1968 in support of the momentous sanitation workers’ strike. An unhappy situation had long been simmering, but the workers became truly disaffected, prompting, in part, the strike, when two of their colleagues died in a mishap caused by chronically malfunctioning vehicles. According to Greenhouse, “neither Cole nor Walker had workers’ compensation coverage because of a loophole in the law. That meant no death benefits for their families. Nor were Cole and Walker able to afford the life insurance the city offered. The families were left in penury, receiving just one month’s salary and a special $500 special payment – not even enough to cover burial expenses….”
Greenhouse, with his top-notch new book, is treating issues that have been in the headlines the last few decades. The attentive reader will find his topics familiar. However, the author skillfully brings the whole story together, fills in gaps in one’s knowledge, and offers recommendations for what he asserts is much-needed change. This writer wasted not a moment in reading this epic treatment of labor in the present day and recent past.
Monday, August 26, 2019
Carl Benedikt Frey's "The Technology Trap" (2019): A Holistic, Historical Examination of Artificial Intelligence and the Future of Work
A frequently-voiced social concern, universally, is the perceived growing threat of artificial intelligence (AI) to eliminate the jobs of millions of workers. The concern is voiced by workers’ compensation lawyers and others in the community in a more narrow, existential way. If the number of jobs is significantly truncated, particularly those in the industrial sector, will workers’ compensation become superannuated, and along with it those who labor in the dispute resolution process?
A healthy commentary exists in this realm. In a new book, Oxford University economic historian Carl Benedict Frey takes a retrospective/historical look at the situation and tries to predict the future from experiences of the past. See The Technology Trap: Capital, Labor, and Power in the Age of Automation (Princeton Univ. Press 2019).
Frey, a specialist in studying technology and employment, has, along with his colleague Mark Osborne, published several widely-read articles on this topic the last three years. The book is thick but, in the end, highly readable and a balanced, up-to-date treatment of this burning socio-legal issue. The book does not focus on industrial injuries. Still, the advance of AI, and the replacement of human labor with robots and/or other labor-saving innovations, holds the portent that many of the injuries and deaths encountered in the present day will be eliminated in the future.
An attractive feature of the book is the author’s attention to the workers whose jobs are threatened by AI. Will they simply accede, as they did with computerization, to the elimination of jobs, or will they seek government action to suppress AI innovation? Meanwhile, will workers be attracted more and more to populist movements, fired by resentment of elites who seem most advantaged by job-threatening technological processes?
A key focus of the book is explaining that the advance of technology has, since the eighteenth century – first in England and then in the United States – affected labor in two ways. The first affect is from technology that simply replaces jobs that were theretofore undertaken by human labor. Frey’s example, throughout, is that of gas lamplighters. With the invention of the light bulb, such jobs were simply eliminated. The second affect is from technology that, in contrast, enables workers to undertake the same or similar jobs with greater ease, and hence with greater productivity; and/or which generates new, theretofore uncontemplated, jobs. Frey again uses electrification as an example, here with the technological marvel of the lighting and powering of factories. Between lighting which allowed longer hours of work and the powering of motors to drive manufacturing processes, workers could be more productive, avoid dangerous conditions and, ultimately, achieve greater wages.
Of course, workers are better off when technology generates jobs that are of the enabling sort, as opposed to that which totally eliminates jobs. However, even with enabling technology, history has shown that a period of adjustment, which he calls “Engels’ Pause,” may exist. During such a period, workers may be displaced from their customary employments and experience depressed wages and other social and economic disruption. This phenomenon is most vividly illustrated by the Luddites, with their rebellion against mechanization and their destruction of labor-replacing machinery. Their revolt against innovation was not based on some abstract devotion to custom and tradition but, instead on the real threat of unemployment and other socio-economic upheaval.
On this point, Frey, throughout, makes an observation that may be counterintuitive. In this regard, over the centuries, rulers, particularly monarchs, often joined in the suppression of technological development because of social disruption. They feared that the population, particularly enterprises like craft guilds, would turn against them. In the late eighteenth and early nineteenth centuries, however, commercial interests in England gained formidable political clout and began to displace landed aristocratic interests. With this change in power structure, the government began supporting technological innovation. Indeed, the army was called out to crush the Luddites. Meanwhile, the new governing elites did nothing (at first) to prevent factory owners from replacing able-bodied men with women and children – who could easily, and cheaply, labor at the new machinery. In any event, the pattern over the last two centuries has been for government to support technological innovation in the workplace. The anxiety over displaced (and displeased) workers has persisted, but the typical response, with a few exceptions, has been retraining programs and unemployment compensation.
Frey thoroughly covers the past in trying to predict the AI future. Most familiar to the current reader will be how workers and society reacted to such things as the automation of automobile and other factories, the invention of the typewriter, and computerization of innumerable processes. By and large, these technologies have been ones of enablement, however hard for some the transition. In contrast, Frey believes that AI is full of replacement-of-jobs potentialities. He identifies, in particular, truck driving. The coming loss of jobs to autonomous vehicles in this area is especially critical, as truck driving is a leading form of employment in virtually all states. He ponders, as noted at the outset, whether those currently employed in the field, and in other entry-level and low-skilled jobs, will simply roll over in the face of the phenomenon. The author seems certain that at least some workers will suffer through another “Engel’s Pause” period of adjustment, such as was encountered so painfully during the initial phase of the industrial revolution.
The author’s final chapter is devoted to recommendations to make the period of adjustment easier. First and foremost is the promotion of education; it is the non-educated who, in the wake of IA innovations, will suffer the most. The second is retraining and a more flexible approach to educating the displaced. Frey also discusses wage insurance, tax credits (he is unsympathetic to universal basic income), decreased regulation, i.e., licensure, of skilled jobs (which he favors), relocation, and modifying transportation systems to connect displaced workers in one area to others where work is plentiful.
In the end, Frey has no hard answers to the labor issue in the age of automation, but a considered reading of his book is thought-provoking and, gratifyingly, places the issue in detailed historical context.
Wednesday, August 21, 2019
Researcher Frank Neuhauser Writes on Firefighter Cancer Presumptions: Observations from the Pennsylvania Trenches
In an important new article, distinguished California researcher Frank Neuhauser identifies the current trend of states enacting and expanding cancer presumptions in favor of firefighters. He cites and evaluates the studies which have sought to ascertain whether firefighters are at increased risk of developing cancer and – along with others, including IARC – finds that they are inadequate in evidencing such a phenomenon. At best prostate, testicular, and brain cancer may be implicated, but in Neuhauser’s view the science is weak even as to these types of cancer in establishing a pattern of causation. See Frank Neuhauser, Cancer Presumption for Firefighters: Good Policy or Give Away?, IAIABC Perspectives, p.7 et seq. (July 2019) (behind a pay-wall: https://www.iaiabc.org/iaiabc/Perspectives.asp).
Neuhauser unequivocally recommends that legislatures not enact such statutes. He declares, “What does all this mean for policymakers? The evidence for elevated risk of cancer among firefighters should be considered insufficient for adopting presumptions…. Presumption[s] lead to [unjustifiable] extra costs being imposed on local jurisdictions ….”
True, some studies have suggested increased risk, but Neuhauser finds three major weaknesses attendant to such studies. First, most firefighters have group health insurance, so cancers are more readily identifiable in that occupation than in the general population. Second, firefighters, overall, live longer than members of the general public and are hence more likely than others to develop cancer. Third, studies that show greater incidence are retrospective in nature and, for the most part, observed Caucasian men, a group that has a substantially greater rate of cancer than the general population.
Neuhauser also rejects the proposition that the cancer presumption in the instance of firefighters should be expanded to other maladies, such as heart disease, hypertension, Tuberculosis and other respiratory diseases, PTSD, and MRSA. “Again,” he admonishes, “the evidence for elevated risk among firefighters for any of these conditions is nonexistent, inconsistent or even contradictory.”
Neuhauser’s critique is familiar to the Pennsylvania reader. In the wake of Act 46, the scientific integrity, or lack of the same, of the firefighter cancer presumption has been well-aired in the court precedents. A minor library of cases is, indeed, available where Dr. Tee Guidotti, testifying for the City of Philadelphia, questions the presumption and ridicules the firefighters’ expert, a Dr. Singer, for suggesting that occupational cancer in a firefighter can be deemed exposure-related based not on epidemiological evidence but, instead, via the differential diagnosis method.
Of course, we know that physicians (and judges) cannot “attack” or “reject” a statutory presumption. That is a lesson from both the workers’ compensation and Black Lung litigation of many years back. Neuhauser knows this, and his remedy is that legislatures should never feel pressured into enacting such scientifically-bereft legal devices in the first place.
Readers of Neuhauser’s essay may assume that any firefighter who develops cancer and receives a presumption of causation automatically receives an award. But the notion that the cancer-victim firefighter is always on the receiving-end of the purported “Give Away” is incorrect. Presumption laws create rebuttable presumptions. In practice, municipalities often, if not always, oppose such claims and are often successful. In Pennsylvania, meanwhile, the presumption of causation is a mere procedural device, and when the municipality produces any level of contrary causation evidence, the burden of proof is once again on the firefighter to prove causation – just like in any other case. (In contrast, in some states, like Virginia, the firefighter’s cancer presumption is substantive in nature, that is, an element of proof, and aids the cancer victim throughout any dispute.)
In any event, given the procedural character of the presumption in Pennsylvania, some observers have questioned whether the presumption device really assists the disease-victim worker. Notably, during the dust disease wars of the 1970s and 1980s, injured workers (coal miners alleging pneumoconiosis and steelworkers alleging silicosis) never relied solely on the presumption. To the contrary, they always presented expert testimony in support of causation.
In arguing against presumptions, Neuhauser may have launched the proverbial “assault on a citadel.” He realizes that, in the present day, firefighters have a strong lobby and are politically powerful. However, presumptions, though currently trending, are not menacing 21st Century phenomena like legalized marijuana and comfort dogs on airplanes. To the contrary, presumptions have been found in workers’ compensation laws for over a century. Notably, a disease-of-the-heart-and-lungs presumption for firefighters has been a feature of Pennsylvania law since 1939.
Meanwhile, the British Workmen’s Compensation law of 1906 contained a list of diseases, to which attached presumptions of causation relative to workers who had exposure to the related disease hazards: “If the workman at or immediately before the date of the disablement … was employed in any process mentioned in the [list of occupations] … and the disease contracted is the disease … [paired with such occupations] … the disease, except where the certifying surgeon certifies that in his opinion the disease was not due to the nature of the employment, shall be deemed to have been due to the nature of that employment, unless the employer proves the contrary.” True, cancer in firefighters was not on the list – the law concerned itself more with anthrax in wool sorters and hookworm disease in coal miners. The point to remember, however, is that presumptions in workers’ compensation laws are not some modern device, custom-manufactured to coddle to the lobby of a special constituency.
Thursday, August 15, 2019
I am scrambling with intensity trying to convert a 5-credit, two-semester torts course to a 4-credit, one-semester torts course. Occasionally, the mind wanders . . .
A long, long time ago, in late 19th century Wisconsin, 12 year old Putney kicked 14 year old Vosberg in the leg within their classroom. Why? Perhaps it was a “boyish prank.” It turned out that Vosberg’s leg had a “preexisting condition” and experienced unexpectedly bad symptoms as a result of the kick. We use the case in law school as an early example of courts formally invoking the “eggshell-skull” rule. “You take your plaintiff as you find her.” After a mere three trips to the Wisconsin Supreme Court (grappling with, among other things, whether a physician should have been allowed to testify by deposition where facts already proven were excluded from the physician’s consideration in a hypothetical question), it was determined that—yes—Putney was liable in battery.
This got me thinking about the horseplay rules in workers’ compensation (because even though the kick was adjudged a “battery” the majority suggested it might have been deemed “horseplay” had it been delivered in the schoolyard, though it was muddy about how that would have changed the outcome). As many readers of this blog will know, horseplay in workers’ compensation is most frequently treated as a “course of employment” problem. That is, it is most often seen as a potential disqualifying “deviation” from employment that is assessed (as the Larson’s treatise explains) by considering:
(1) the extent and seriousness of the deviation, (2) the completeness of the deviation, (3) the extent to which the practice of horseplay had become an accepted part of the employment in question, and (4) the extent to which the nature of the employment may be expected to include some such horseplay. (In Wyoming, our lead case involves two minors scuffling in a Burger King).
As Larson’s also notes, in early workers’ compensation law non-participating victims of horseplay were uniformly denied coverage. Yet this denial is perfectly consistent with the traditional conception of workers’ compensation as a quid pro quo for negligence (not intentional tort) cases. As the treatise observes, “[j]ust as malicious assaults by co-employees were ruled out [of coverage] as intentional and personal, so sportive assaults were treated as something foreign to the inherent risks of the employment.” This is, of course, quite correct, but, more macroscopically, horseplay involves intentional conduct by somebody. Intentional conduct is not negligence (and it is obviously not accidental). It makes perfect sense that early workers’ compensation statutes, observing close fidelity to the precise quid pro quo scheme, would not have awarded compensation in what were essentially battery scenarios (at least seen from the perspective of the non-instigator). It also may explain in part why, even where horseplay has been determined an “incident of employment,” several jurisdictions continue to maintain the workers’ compensation rule that, only non-instigators of horseplay are covered. In a tort-battery regime, the instigator could have been the perpetrator of a battery. Awarding compensation to non-instigators on an “incident of employment” theory may, initially at least, have been a kind of compromise necessary to maintain the integrity of the system.
It may also be worth mentioning that the continued instigator/non-instigator split on horseplay in workers’ compensation corresponds interestingly with developments concerning the tort liability of employers for the intentional acts of their employees. The general rule historically has been that an employer is almost categorically not vicariously liable for the intentional tort of an employee who is not actuated by a purpose to serve the employer and motivated solely by a desire to satisfy the employee's own purposes. (For example, an employee's intentionally criminal conduct typically indicates a departure from conduct within the scope of employment). But under a more holistic “characteristic activities” standard several courts have concluded that some otherwise intentional employee conduct can be attributed to employers. “Sure, it looks like an intentional tort but this person does stuff like this all the time, and the employer knew it.” (Think of the bar room bouncer). This idea expands the potential for employer liability for intentional torts like batteries, and it makes sense that where employer liability for battery expands some courts/jurisdictions might respond by attempting to cover obviously “intentional conduct” within the workers’ compensation rubric (by, for example, requiring super-duper intentional conduct to remove an injury from the workers’ compensation lockbox). I would also note that Wyoming’s statute has always explicitly conferred immunity on employers for all tortious conduct, which makes for good sport for this workers’ compensation/torts prof: my employer comes into work one day and intentionally shoots me in the leg. Discuss.
It also makes sense that states with expanded battery liability would be more likely to include horseplay instigators as well as non-instigators into the workers’ compensation fold.
The moral of the story? Hypothetical questions are cool! No, that’s not it. I know. Be careful when you kick: you may set off an entire chain of legal history!
Back to course prep!
Michael C. Duff
Sunday, August 4, 2019
My work on a Wyoming workers’ compensation treatise (submitted to the publisher two weeks ago) has emphasized a fairly stark reality: while 90% of Wyoming workers are covered by workers’ compensation only 68% of that 90% work for employers required to provide workers’ compensation coverage. From the official Wyoming report tracking these numbers: “Ninety percent (90%) or 235,278 are covered by workers’ compensation. 175,455 employees are working in required coverage or extra-hazardous occupations, with 59,823 employees working in optional coverage positions.” Furthermore, “Currently, there are 22,629 employers in Wyoming . . . 16,322 or approximately 72% of those employers are registered with Workers’ Compensation (WC) as policyholders. Of the 16,322 employers who are registered, 11,027 or 68% have required coverage and 5,295 or 32% have optional coverage.”
So 68% of 90% yields a figure of 61% of employees working for employers that are required to carry workers’ compensation (monopolistic) coverage.
Like the situation in Texas, employers not covered by workers’ compensation are usually liable in tort. Also like in Texas, there are significant groupings of employees employed by companies utilizing alternative benefit plans (Walmart is the major example). Those plans are covered by ERISA and thus generally cannot be sued by employees who have elected to participate in them (and many employees will choose participation once they realize their employer is not covered by the state workers’ compensation system). Employees working for an employer that is not covered by workers’ compensation, and has not established an alternative benefit plan, find themselves in “Texas-land.” (Texas has operated an elective, opt-in system since the inception of workers’ compensation). The difficulty of pursuing tort claims is, of course, why we have workers’ compensation in the first place and, to add insult to injury, employees routinely find themselves required to arbitrate workplace injury tort disputes, even assuming they can find a theory to evade ERISA preemption.
Much of the coverage outcome in Wyoming has been driven by the narrowed statutory jurisdiction of the Wyoming statute, which applies, uniquely, only to “extrahazardous” employment (though Illinois also still technically possesses such a statute). Explicitly included extrahazardous “employments” are rather non-transparently defined with reference to the North American Industry Classification System. It takes a good deal of digging to come to the 61% coverage figure. But, as I have said in my treatise, any workers’ compensation system—however unusual—has little to recommend it if it excludes the largest employer in the state (Walmart). As the Larson’s treatise discusses, at 6 Larson's Workers' Compensation Law § 77.01, in the context of analyzing the Wyoming Supreme Court’s opinion in Araguz v. State, ex rel. Wyoming Workers’ Safety and Comp. Div., 2011 WY 148, 262 P.3d 1263 (Wyo. 2011):
Wal-Mart had been assigned [NAICS] code 452910, indicating “Warehouse Clubs and Supercenters.” Because such classification was not defined by Wyoming statute as “extrahazardous,” Wal-Mart [is] not required to participate in the state fund. Wal-Mart maintain[s] its own privately funded workers’ compensation fund, the Wal-Mart Plan, for the benefit of its employees who are injured on the job. The employees contend that the State’s failure to provide benefits was unconstitutional and improper as a matter of law. The court indicated that it would not address the appellants’ constitutional argument as the appeal was not an appropriate avenue for resolution of such an issue.
The entire structure is evocative of the path-breaking 2012 article by Professors Spieler and Burton, “The lack of correspondence between work‐related disability and receipt of workers' compensation benefits.” In Part II of the article, Spieler and Burton observed:
. . .[W]hile exclusions mean that the common law tort system is not supplanted by workers' compensation, exclusion also means that these workers can obtain benefits only through tort litigation (in which there must be proof of actual negligence), from private sources such as employment‐based health and disability plans, or from public programs, including SSDI, SSI, Medicaid, and Medicare. Some injured workers experience “dual denial”—they are eligible neither for damages from civil litigation nor benefits from alternative programs.
An elective workers’ compensation system like Wyoming’s may not expressly exclude (non-extrahazardous) employment from coverage; but Wyoming’s current economic downturn may ultimately render the distinction academic for a worker employed by an employer deciding to rescind its election to be covered by workers’ compensation. When profit margins become razor thin, an operator (now short term because of the onrush of events) may be willing to take a chance on a tort suit, especially if it figures out the arbitration gambit and the Supreme Court continues its FAA jurisprudence of arbitration uber alles.
Michael C. Duff
Monday, June 24, 2019
Thomas Robinson has a good post up on a recent Oklahoma Supreme Court opinion, Wells v. Oklahoma Roofing & Sheet Metal. The wrongful death opinion, very simply stated, holds that the Oklahoma workers’ compensation statute does not encompass intentional conduct. In other words, an intentional tort action against an employer for workplace injury is not foreclosed as a matter of law. I’ll broach the concept of “intentional” in a moment but will note at the outset that when state courts take on such a case, there are two basic approaches they tend to utilize. One is to take on the question of legislative supremacy directly: could a legislature constitutionally make intentional tort actions against employers unavailable to their injured employees? That approach triggers the expected equal protection, due process, remedies/open courts and special laws analyses. Another approach, however, is to employ some kind of constitutional avoidance canon: “we need not reach the constitutional question if the legislature did not intend to impinge on the right in question.” Mr. Robinson seems to think (at least my reading of his post suggests this to be his view) that the Oklahoma Supremes somewhat weakly opted for avoidance where the evidence firmly suggests the legislature “intended” to place the legislative supremacy question front and center. I’m inclined to agree with him. The conclusion of the opinion states, at ¶24:
We hold that the willful, deliberate, specific intent of the employer to cause injury, and those injuries that an employer knows are substantially certain to occur, are both intentional torts that are not within the scheme of the workers' compensation system or its jurisdiction. Plaintiff's additional constitutional arguments are thus not necessary to adjudicate this appeal. For the reasons expressed herein, the district court's order is reversed and the matter is remanded to the district court for further proceedings consistent with today's pronouncement.
As to intent generally, in law school tort classes we customarily begin our discussion of the concept of intentional conduct with the case of Garratt v. Dailey (whose holding was essentially later incorporated in various restatement formulations), in which a child pulls a chair out from under a descending woman, the woman thereafter making harmful contact with the ground. The case stands for the proposition that one is liable for an intentional tort where one engages in conduct with the purpose of causing a harmful or offensive contact with another, or where one acts with knowledge to a substantial certainty that such a contact will occur (and where the conduct does actually occur). The workers’ compensation quid pro quo is normally conceived as applying only to negligence (careless rather than intentional conduct) under the simple rationale that an intentional act, by definition, cannot be an accident. If workers’ compensation is meant to cover only “injuries by accident” then intentional torts would appear exempted. The problem with this analysis is, first, that not all statutes define workers’ compensation eligible injuries in terms of “accident” (Maine, Massachusetts, and Wyoming are examples). Second, whether an actor (in this case, an employer) “knew to a substantial certainty” that a harm would occur is a product of inference, and with inference (think, the “totality of the circumstances”) comes uncertainty and unpredictability.
Historically, the English Act allowed for employee election of a tort action in all cases (Ch. 37, 2(b) (1897)), so there was no question that workers’ compensation remedies under the original English statute were elective (and that an intentional tort court case remained available). Closer to home, the Wisconsin Act of 1911 excluded from workers’ compensation coverage the willful misconduct of the employer (Sec. 2394-4(3)), and the prototypical New York statute (shopped around the country in 1910, see my article here) upheld by the Supreme Court in 1917 covered under workers’ compensation only accidental injuries (Ch. 41, Art. 1, Sec. 3(7)). I have not fully researched all of the early statutes on the point but have reasonable suspicion that exclusion of intentional and willful conduct from coverage by the early workers’ compensation acts was the clear majority rule.
This does not address the question of whether a state could constitutionally simply eliminate intentional torts for injured workers (or anyone else, for that matter). I think the answer is “no,” though Ohio may have effectively done so by defining the “substantially certain” concept as an act “with deliberate intent to cause an employee to suffer an injury, a disease, a condition, or death.” The circularity of the definition is at once apparent to a practitioner of logic (intent=substantial certainty=deliberate intent), and I think the Oklahoma statute under consideration was trying to adopt something like the Ohio approach. But here is the thing: courts will resist, as long as they can, having to answer these legislative supremacy questions, reading the statutory text in some (any?) manner that leaves the intentional tort theory possible. It is like the White dicta, “it may be doubted whether the legislature could sweep away all such actions, but we do not think in any event that is what happened here.” Workers’ compensation itself was originally substantially upheld, after all, as a matter of federal constitutional law, under the avoidance canon. (“We assume without deciding remedies are adequate.”) There is a welter of state jurisdictional definitions of the scope of the exclusive remedy rule which, considered broadly, suggests little enthusiasm for sweeping intentional tort completely into the exclusive remedy rule. Legislatures seem generally to accept such an evisceration could lead to underdeterrence of dangerous behavior.
Michael C. Duff
Thursday, June 20, 2019
"Bodies in Seats" is the apt title of a chilling recent article in The Verge. The next time I hear debates about social media purges meant to make me safe from "speech," I'll try to remember that workers (not corporate executives) are doing that work. And, repeat after me: "FACEBOOK IS NOT THE EMPLOYER." The story is already a lead candidate for my torts and workers' compensation final exams next year. How many fact patters do you see? Workplaces are getting safer and safer? Well,welcome to the Jungle:
February, I wrote about the secret lives of Facebook contractors in America. Since 2016, when the company came under heavy criticism for failing to prevent various abuses of its platform, Facebook has expanded its workforce of people working on safety and security around the world to 30,000. About half of those are content moderators, and the vast majority are contractors hired through a handful of large professional services firms. In 2017, Facebook began opening content moderation sites in American cities including Phoenix, Austin, and Tampa. The goal was to improve the accuracy of moderation decisions by entrusting them to people more familiar with American culture and slang.
Cognizant received a two-year, $200 million contract from Facebook to do the work, according to a former employee familiar with the matter. But in return for policing the boundaries of free expression on one of the internet’s largest platforms, individual contractors in North America make as little as $28,800 a year. They receive two 15-minute breaks and a 30-minute lunch each day, along with nine minutes per day of “wellness” time that they can use when they feel overwhelmed by the emotional toll of the job. After regular exposure to graphic violence and child exploitation, many workers are subsequently diagnosed with post-traumatic stress disorder and related conditions.
Three former moderators for Facebook in North America agreed to break their nondisclosure agreements.
My initial report focused on Phoenix, where workers told me that they had begun to embrace fringe views after continuously being exposed to conspiracy theories at work. One brought a gun to work to protect himself against the possibility of a fired employee returning to the office seeking vengeance. Others told me they are haunted by visions of the images and videos they saw during their time on the job.
Conditions at the Phoenix site have not improved significantly since I visited. Last week, some employees were sent home after an infestation of bed bugs was discovered in the office — the second time bed bugs have been found there this year. Employees who contacted me worried that the infestation would spread to their own homes, and said managers told them Cognizant would not pay to clean their homes.
“Bed bugs can be found virtually every place people tend to gather, including the workplace,” Cognizant said in a statement. “No associate at this facility has formally asked the company to treat an infestation in their home. If someone did make such a request, management would work with them to find a solution.”
Bed bug ticking time bombs? Even after 13 years of teaching and 11 years of practice my hypothetical fact patterns can't keep up with the real world. The full piece can be accessed here.
Michael C. Duff
Tuesday, June 18, 2019
Workers' compensation specialists can, in my opinion, benefit by a grounding in, or a refresher on, the industrial and organized labor histories which were, and are, so formative to our field and the larger system of which we’re a part. Behemoth, written by CUNY history professor Joshua Freeman, is a book which assists in providing such education and, likely, filling in gaps in the learning of most of us. Behemoth: A History of the Factory and the Making of the Modern World (W.W. Norton & Company 2018).
Freeman's book is an account of the rise and partial fall of the great factories which were, for so many years, the centers of international – and Pennsylvania – industrial growth.
The manufacturing facilities treated by the author range from the early cotton mills of Britain and New England to those of the Ford Motor Company, its Soviet imitators, and the modern mega-factories of mainland China. The latter, particularly the factories of manufacturer Foxconn, are those that produce cellphones, other electronic devices, and their constituent parts. Significant Pennsylvania connections exist in the realm of factory history, and the author addresses such gigantic factories as those of Carnegie and Frick in Pittsburgh and the Cambria Ironworks in Johnstown. Indeed, the Cambria Ironworks, the first in the U.S. to use the Bessemer furnace innovation, is a constant touchstone for Freeman.
Freeman's book, while presented chronologically, is not simply a linear history. The book instead treats what he calls “industrial giantism” in socio-cultural terms as well. Indeed, the author, on multiple occasions, talks about giant factories and the visual arts. Such references come up in both discussions of steel mills and auto manufacturing facilities. Even Diego Rivera and Frida Kahlo make an appearance in Behemoth – in this regard, Rivera painted a series of frescoes for Henry Ford in the early 1930s at the immense River Rouge plant that Ford built in Michigan.
The role of the worker, meanwhile, is constantly addressed, be it as a disempowered cog in a machine – or a proud union member contributing to war efforts.
The book is not a labor history per se, nor one that focuses on industrial safety. Still, given the book’s pervasive treatment of the history of factories, both of these critical aspects of industrialism are treated.
One such item was new to this reader. In the realm of how unions were received, the author observes that at first, municipal leaders were largely hostile to organized labor. This attitude changed over the decades. Indeed, Freeman includes in his book an April 1946 aerial photographic view of Pittsburgh Mayor David L. Lawrence addressing, from the steps of our courthouse, a crowd of striking Westinghouse workers.
It’s notable that every single man is wearing a hat.
I have been quite enthused about this book and, I engifted two of my top students (now lawyers) with it. A definite must-read for those who desire a holistic understanding of industrial and labor history.
In follow-up of Judge David Torrey’s kind review of my historical article on workers’ compensation adequacy (see two posts below this one on this blog), I note that workers’ compensation benefits were originally set at about 50% of the preinjury average weekly wage, with no provision for medical benefits beyond first aid for a number of days post-injury. The omission of ongoing medical benefits for work-related injuries was not broadly fixed until about 1930, and unlimited “reasonable and necessary” medical benefits were not uniformly available until about 1953. All of this is nicely chronicled in Somers and Somers, Workmen’s Compensation 83-87 (1954). But note the contemporary dissatisfaction of the same authors on the state of affairs by the mid-1950s (at page 191):
At present, even when a claimant litigates, the liability of the employer is, of course, limited to the benefits allowed under workmen’s compensation. Labor has been showing increasing restiveness with the “exclusive remedy” principle, which except in a few instances prevents the injured worker who is eligible for workmen’s compensation from suing, no matter how grave the employer’s negligence or how inadequate, or even non-existent, the compensation benefits.
This has been particularly distressing in States where permanent-total and death benefits are still rigidly limited, or in cases involving disfigurement or occupational diseases in some States, where workmen’s compensation coverage prevents common-law action without providing any corresponding benefit. The benefits of compensation recipients are now, in certain circumstances, so inadequate that they have clearly lost more than they gained by giving up the right of legal damage suit.
The authors go on to note (see Somers and Somers pages 191-193) that commentators of the day were proposing a kind of tort-workers’ compensation hybrid of a type I’ve heard proposed fairly recently.
Although, as Professor John Burton interpreting old NCCI data has explained, statutory benefits significantly increased in the 1960s, 1970s, and the first half of the 1980s, we also know that the very reason the OSH Act created the National Commission in 1970 (headed by Professor Burton) in the first place was that workers’ compensation benefits had become “inadequate” throughout the 1960s. According to the Congressional findings (see "transmittal letter" here at page 3):
[I]n recent years serious questions have been raised concerning the fairness and adequacy of present workmen's compensation laws in the light of the growth of the economy, the changing nature of the labor force, increases in medical knowledge, changes in the hazards associated with various types of employment, new technology creating new risks to health and safety, and increases in the general level of wages and the cost of living.
Perhaps to no one’s surprise, the Commission found, as stated on the cover letter of its report to the President and to Congress, “the protection furnished by workmen's compensation to American workers presently is, in general, inadequate and inequitable. Significant improvements in workmen's compensation are necessary if the program is to fulfill its potential.”
Many of the readers of this blog know the story from there: some improvements (as defined by the National Commission) on the national scene for a decade—probably under threat of feared federal intervention—followed by ongoing retrogradation. I think we have just knocked out a number of decades in which workers’ compensation might have been thought (by modern readers) to be adequate but was probably not. The Supreme Court has never defined adequacy, and I suspect readers of this post would have differing opinions as to what the concept even means. Perhaps we ought to get that straight first. The conversation has been going on for a long time.
I will note in passing that I have always doubted the possibility of federal intervention (whether judicial or legislative) as a guarantor of whatever political consensus of adequacy may develop among the states. More plausible, it seems to me, is a reworking of the current federal-state balance on employee benefits in which ERISA preemption will be substantially scaled back. The state “laboratories” that will emerge may be thought of as better or worse, though this writer has some clues as to where he (at any rate) might prefer to be a rat. Will the labs have any legal boundaries? That question continues to define my research agenda.
Michael C. Duff
Monday, June 17, 2019
A New "Intermediary" Theory of Joint Employment in the Realm of the Franchisor-Franchisee Relationship
In a renowned 2015 Pennsylvania case, a Philadelphia franchisee of the fast-food chain “Salad Works” had failed (illegally) to insure, and its employee, having sustained an accident, was unable to secure workers' compensation benefits. He sought, as a result, to cast the franchisor as his "statutory" employer. While the Pennsylvania Appeal Board accepted that argument, and imposed such liability, the Commonwealth Court (the appellate court which takes state agency appeals) reversed.
The court declared, with some irony, that Salad Works, as franchisor, “is not in the restaurant business or the business of selling salads.” Salad Works, LLC v. WCAB (Gaudioso & UEGF), 124 A.3d 790 (Pa. Commw. 2015).
I was intrigued by the dispute (not to mention the court's ironic, and perhaps unsatisfactory, declaration), especially in light of Dean Weil's characterization -- in his illuminating 2014 book -- of franchising as often reflecting a type of "fissuring of the workplace" that leaves highly leveraged those at the bottom of the employment hierarchy. The injured worker in the Gaudioso case seemed to be such a person. See generally David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can be Done to Improve It (Harvard 2014) (Chapter 6).
In a new article, the author, like the injured worker's lawyer in Gaudioso, is interested in a legal argument that would cast what she calls “the all-powerful brands – the franchisors” as employers – in her case with responsibilities under the Fair Labor Standards and National Labor Relations Acts. She asserts, in this regard, that “franchisor brands, not their franchisees, set industry-wide standards and, thus, have the ability to offset rising wage inequality and improve working conditions.” Kati L. Griffith, An Empirical Study of Fast-Food Franchising Contracts: Towards a New “Intermediary” Theory of Joint Employment, 94 Washington Law Review 171 (March 2019). See also https://works.bepress.com/kati-griffith/20/.
The author, a professor at Cornell Law School, has studied forty-four contracts between fast-food franchisors and their franchisees. She asserts that her “contractual analysis reveals a new theory of joint employment via franchisor influence over franchisees’ managers. Unlike prior foci on franchisor-franchise relations, and franchisor-crew member relations, [I bring] a new party to light: franchisees’ supervisorial managers.”
She concludes, “In sum, the theory developed from this rare dataset postulates why some Goliaths of fast food may indeed be ‘employers’ with legal obligations to the workers in their franchised restaurants….”
Sunday, June 16, 2019
Recent court cases have highlighted how some states, in this era of business-friendly workers’ compensation reform, have cut back on disability benefit levels. In Alabama, Florida, and Kansas, courts have all reviewed benefit levels (duration limits are frequently an issue as well), and declared them inadequate. Other courts, however, reflecting a traditional hands-off-economic-legislation approach, have indicated that benefit levels are instead appropriately addressed by the legislature.
A pervasive inquiry surrounding benefit adequacy is whether a compensation program is constitutionally legitimate if the benefits provided are so miserly that they cannot be said to fairly substitute for workers’ surrender of their tort rights.
In a recent article, stylish and in rich prose, Professor Michael Duff goes back to the origins of the system and tries to determine what the founders of state systems of compensation believed was adequate. Michael C. Duff, How the U.S. Supreme Court Deemed the Workers’ Compensation Grand Bargain “Adequate” Without Defining Adequacy, Workers’ First Watch, p.27 (WILG Winter 2018), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3238456.
More importantly, he examines the benefit levels which were a feature of the New York act, upheld by the U.S. Supreme Court in the landmark case New York Central R. Co. v. White (U.S. 1917). That case, of course, recognized the quid pro quo of the workers’ compensation scheme, and famously suggested that a law abolishing a cause of action is only legitimate if the replacement is a reasonably just substitute.
Duff establishes that the progenitors of U.S. workers’ compensation laws were highly influenced by the European models of the program, especially those of industrial powerhouses Germany and Great Britain. (In this portion of his article, he reviews the role of lawyer/lobbyist P. Tecumseh Sherman – yes, son of the Civil War general – who was to be a major commentator on the nascent Pennsylvania legislation.)
Germany and Great Britain, notably, established less-than-full-wage replacement for weekly disability payments, brief waiting periods, and caps on the duration of benefits. Groups in the U.S., having studied these laws, proposed weekly benefit levels ranging from 50% to 2/3 of weekly wages for both total and partial disability benefits, subject to a weekly maximum.
It was such a law that was under consideration by the U.S. Supreme Court in the White case. Of course, the pivotal issue in that case was whether the imposition of no-fault liability on employers constituted a denial of due process. The court held that it did not, but along the way at least suggested (in a doctrinal tease that has endured for over a century) that a system which abolished common law rights was only valid if the remedy placed in its stead was reasonable. Duff suggests that perhaps the benefit levels provided by the New York law under consideration might be regarded as a “floor” to what was, at least at the time, reasonable. Still, his more definitive opinion is that the court was aware of the expert consideration which had informed the creation of the law, and that it in effect deferred, to these creators of the system, the determination of what was reasonable – and adequate.
Importantly, Duff comments, “The difficulty with the Court’s approach is that little has been left to posterity explaining what scale of employee benefits the Court might have deemed inadequate or unreasonable as an exchange for employee tort damages. The pregnant silence on federal constitutional boundaries continues to impact current discussions on limits to legislative reductions of workers’ compensation benefits.”
Duff makes the point that the issue of what was adequate and fair was alive and well at the time workers’ compensation laws were created. This proposition is overwhelmingly supported by the experience of the Pennsylvania system. In our state, our original 1915 enactment was notoriously miserly, a point immediately identified by national leaders, and thereafter debated for decades. When benefit levels were increased in 1937, the law was struck down, in Rich Hill Coal Co. v. Bashore (Pa. 1939), as violative of the state constitution’s admonition that a workers’ compensation law must only provide for “reasonable” benefits. Only in 1972, when benefit levels were raised above poverty levels, did inadequacy cease to be an issue. (Inadequacy is still a practical issue for those workers permanently disabled with a less-than-35% impairment; such workers are limited to a maximum of 11.6 years of disability payments.) In any event, taking the long view of the Pennsylvania experience, Duff’s analysis of adequacy, in its historical context, rings familiar and true.
Recent commentaries, and another Florida challenge, have raised the question of whether maximum compensation payable, a ubiquitous feature of state laws, are constitutional under the quid pro quo/White analysis. On this point, Duff seemingly answers the related inquiry – where did maximum compensation payable come from in the first place? The answer apparently lies in the German and British examples. In Germany, under the 1911 law, temporary and permanent total disability was subject to a cap of 3 marks (71 cents) per day; and in England, under the 1907 law, weekly disability was subject to a cap of £1 ($4.87) per week. Maximum compensation payable may be unfair and leave high-paid workers in the lurch, but Professor Duff’s adequacy article establishes that it is profoundly historical.
Tuesday, June 11, 2019
Any member of the workers' compensation community who missed the intriguing saga of the Oklahoma “opt-out” law – which culminated in the 2016 demise of the innovation – would be well-served by reading a newly-published account. Daniel E. Walker, Opt-Out and the Fourth Era of Workers’ Compensation: Has Industry Left the Bargaining Table?, 41 Western New England Law Review 111 (2019), https://digitalcommons.law.wne.edu/cgi/viewcontent.cgi?article=1813&context=lawreview. It's a brisk, readable, and accurate review of the affair.
The author, a lawyer for the Oregon State Fund, creatively characterizes the lobby of large companies, particularly retailers, for opt-out, as reflecting the “fourth era” of workers’ compensation.
What were the first, second, and third? The first, he says, was the early 20th century reform period when virtually all states enacted such laws. The second, meanwhile, was the 1970s and early 1980s, as the National Commission recommendations that states update their laws with liberalized coverages and rates above the poverty line led to increased premiums and other enhanced system costs. The third was the reaction to the second – to wit, nationwide retractive reform during the 1990s and onward, aimed at lowering the costs of the system.
Even as such retractive reforms have generally achieved their goals, the fourth (and current) era of workers’ compensation reflects employers seeking to completely escape regulation by opting-out of state-run programs via the device of setting up internal, ERISA-governed plans – and obliging injured workers to arbitrate any dispute.
The fourth era unfolded with the convergence of at least two factors. Texas, on this point, played, and plays, a significant role. There, workers’ compensation has never been mandatory and employers have long been able to decline to opt-in to the system. They could, and can, avoid coverage and, as a result, expose themselves to potential tort liability. Such avoidance of workers’ compensation costs was seemingly never a popular strategy until large Texas employers discovered the innovation of creating their own work accident plans, seemingly governed by ERISA (a complex concept, as ERISA excepts workers’ compensation-like programs), and, cunningly, obliging workers to arbitrate any disputes over the same.
By this device, large employers could avoid workers’ compensation liability and tort liability at the same time. The author explains:
[T]hese arbitration agreements are possible in Texas because the Texas courts have held that "when [what amounts to] a pre-injury waiver of common law claims is included in an arbitration agreement, the [Texas] statutory prohibition against pre-injury waivers is preempted by the Federal Arbitration Act (FAA)."
As the popularity of opt-out in Texas spread, employers in Oklahoma, particularly, became intrigued by the idea of freedom from both workers’ compensation and tort liability in the event of employee injury. Soon, the legislature had passed a law authorizing an opt-out system which explicitly preserved in the employer the protections of the exclusive remedy.
Walker, after explaining this genesis, effectively recounts Vasquez v. Dillard’s, Inc., 381 P.3d 768 (Okla. 2016), the legal action which spelled the downfall of the statute. The Oklahoma Supreme Court in that case, of course, struck down the entire opt-out structure as violative of the “special law” prohibition of the state constitution.
The author correctly states that the Vasquez drama took the winds out of the sails of the opt-out movement. He believes, however, that the fourth era of workers’ compensation – as heralded by the Texas development and its stunted Oklahoma spawn – will continue. He is, in this regard, impressed that employers are no longer interested in making workers’ compensation operate fairly through the traditional horse-trading between interest groups that was thought to generate balanced systems.
Instead, as foreshadowed by the title, industry, which has such powerful leverage in the present day, may well have permanently “left the bargaining table.”
Sunday, June 9, 2019
In a new article, appearing in the review Animal Law, the author argues that workers in slaughterhouses should have access to workers’ compensation benefits if they fall victim to the mental trauma of killing animals all day. Vanessa Hemenway, The Wages of Blood, 24 Animal Law 457 (2018).
The author correctly explains that in many states, mental stress causing mental disability cases are not cognizable, as physical animus must always precipitate mental disability. In other jurisdictions, however, like California, Colorado, and New York, such claims may be cognizable. Even in those states, however, workers with repeated mental trauma from work in slaughterhouses would face an uphill battle with their claims. For example, she identifies California as a state where “actual” emotionally-traumatic events must be “predominant as to all causes combined [regarding] the psychiatric injury ….” Meanwhile, court precedent establishes that “predominant as to all causes” means “50% or more causation.”
These roadblocks to relief are, in the author’s view, unfortunate. She sets forth the findings of research that show that slaughterhouse workers are at risk for mental issues arising out of the uniquely distressing nature of their work. The author’s thesis, in this regard, seems highly informed by a 2008 article by Jennifer Dillard, A Slaughterhouse Nightmare: Psychological Harm Suffered by Slaughterhouse Employees and the Possibility of Redress Through Legal Reform, which appeared in the Georgetown Journal on Poverty Law & Policy.
Both Dillard and Hemenway, notably, argue for recognition of a PTSD-type syndrome from which slaughterhouse workers may suffer. “Research,” Hemenway states, “suggests that [such] workers may suffer from ‘Perpetration-Induced Traumatic Stress (PITS) as a form of [PTSD]’ which occurs in situations where the perpetrator inflicts violence that causes PTSD in his victims. PITS sufferers include ‘people such as combat veterans, executioners, and Nazis.’ Dillard frames [the] constant killing as ‘creating an employment situation ripe for psychological problems.’”
Hemenway concludes her article with a call for more research on the mental health of slaughterhouse workers.
The author of this passionate note identifies herself as an attorney for the Bronx, NY Family Court – and adds to her brief biography that, as to diet and lifestyle (no surprise) she is Vegan. Her essay is short on establishing that any crisis in this area of recovery exists, but it is valuable for identifying this overlooked issue and providing footnotes full of the critical research references. If this writer (an ALJ) is assigned a slaughterhouse-worker mental disability claim, I’ll be ready.
Friday, June 7, 2019
I’m back and mostly recovered from a family vacation in Edinburgh, Scotland, UK. While walking through the cemetery where Adam Smith was interred, my family was surprised to see homeless persons encamped there. A lively discussion with my teens ensued. We also explored the ruins of tenements in the “old town,” where a cry of Gardyloo! (watch out for the “water”) was once required of residents before launching garbage and excrement from the upper floors of tenement houses, where it would remain in the streets long enough to generate odors and disease. Imagine such a thing – human excrement in the streets! Lamentably, we can perhaps once again more than imagine it. The highlight of the trip for me was to have access to materials on, and to visit some of the haunts of, my intellectual hero, David Hume, to my mind one of the clearest thinkers who has ever lived.
Gardyloo! Watch out for legislative “water” events. In Ohio, a recent bill would, among other things, require workers’ compensation applicants to disclose their immigration status as a condition of benefit eligibility. (see here behind paywall). Advocates attack the requirement. It sounds like bad policy, for a number of reasons that are being articulated by advocates: workers won’t apply; the risk pool is shrunk; there is under-deterrence of dangerous workplace practices. You know all these arguments. And in fact similar arguments were advanced and countered (in a different statutory context) in the still-seminal Supreme Court case, Hoffman Plastic Compounds. The problem is that Hoffman Plastic involved conflict between federal laws, which makes it a tenuous precedent when considering the interplay between state law implicating immigration and federal law. It is a problematic opinion for all parties in such cases if used either as a sword or a shield. This does not mean that parties (and courts) don’t try to do so; it just renders the attempts clunky, unpersuasive, and vulnerable. The issue has too much federalism in it to be resolved so easily.
Ultimately, the discussion starts where it always must: the limits of legislative power. What prevents a legislature from doing whatever it wishes? What renders a legislature “non-supreme”? The answer, of course, is a constitution—whether federal or state. To crystallize the specific question here, as a matter of law (not policy), why can’t a state legislature require a workers’ compensation applicant to disclose immigration status in order to be eligible for state benefits? Is it, for example, an illegal search? Perhaps the requirement violates the Doctrine of Unconstitutional Conditions attached to benefits. If a claimant with standing were to challenge the requirement on unconstitutional conditions grounds, I’d probably suggest beginning with Sherbert v. Verner. (I don’t think it is “just” a religious exercise case).
The answers to the “what prevents” question, if there are any other than “nothing,” are probably to be found in the 14th Amendment of the U.S. Constitution or, in this case, the Ohio constitution. I have written recently on why the Equal Protection clause of the 14th amendment is almost always a non-starter, and I think that is probably true here. What about substantive due process? Next week, I’ll write a little about substantive due process and review the difficulty posed by the “No Set of Circumstances” test. One thing is clear, a judge (and eventually a group of them) will want someone to point to something in a constitution that says the legislature can’t do what it just did. Elementary? Certainly. But occasionally I find it useful for someone to explain things to me like I’m a two year old.
Michael C. Duff