Workers’ Compensation Law Prof Blog

Workers' Compensation in the Proposed UPS-Teamsters Agreement

I was very surprised during the pandemic at how little some unions knew about workers' compensation. I'll be keeping a close look during this period of union agitation to see what is happening in collective bargaining agreements relating to workers' compensation. Unions don't have to insist upon full blown carveouts to achieve small claimant-side "wins" within collective bargaining agreements. Here is one compensation-related provision  Download Teamsters - UPS 07.28.23-Blueline-NMA-With-All-TOKs-Final (there may be more) in the proposed UPS-Teamsters collective bargaining agreement:

Article 14. Compensation Claims

 

When an injury is reported the reference number will be given to the employee and when requested, a copy of the injury report will be furnished to the employee within two (2) working days of such request. A copy of the injury report will also be furnished to the Local Union if requested by a Local Union official.

 

The Employer agrees to cooperate and make a reasonable effort to provide the disposition of employee on-the-job injury claims within ten (10) business days. No employee will be disciplined or threatened with discipline or retaliated against as a result of filing an on-the-job injury report. The Employer or its designee shall not visit an injured worker at their home.

 

The Employer shall provide the Union Co-chair of the National Safety and Health Committee with current summaries of the essential functions of all positions covered by this Agreement. The Union shall have the right to challenge any such summary through the applicable grievance procedure. Any employee who is adversely affected by any such summary shall have the right to challenge such summary through the applicable grievance procedure.

 

Any such decisions or settlements rendered through the grievance procedure, including but not limited to, at arbitration, shall be based solely upon, and applicable to, the facts present in that individual case and shall have no precedential effect beyond that case. This stipulation is limited to cases involving or referencing essential job functions.

 

The Employer shall provide Worker’s Compensation protection for all employees even though not required by state law or the equivalent thereof if the injury arose out of or in the course of employment.

 

An employee who is injured on the job, and is sent home, or to a hospital, or who must obtain medical attention, shall receive pay at the applicable hourly rate for the balance of their regular shift on that day. Upon receiving an employee’s timely report of injury, the Employer shall not pressure an employee to continue to work, nor shall the Employer interfere with an employee seeking medical attention. When, because of such pressure, an employee spends time in a clinic after their normal finish time, the time spent shall be the subject of a pay claim through the grievance procedure.

 

An employee who has returned to regular duties after sustaining a compensable injury, and who is required by the Worker’s Compensation doctor to receive additional medical treatment during the employee’s regularly scheduled working hours, shall receive the employee’s regular hourly rate of pay for such time.

 

The Employer agrees to provide any employee injured locally immediate transportation, at the time of injury, from the job to the nearest appropriate medical facility and return to the job, or to the employee’s home, if required. In such cases, no representative of the Employer shall be permitted to accompany the injured worker while they are receiving medical treatment and/or being examined by the medical provider, without the employee’s consent. In the event that any employee sustains an occupational illness or injury while on a run away from the home terminal, the Employer shall obtain medical treatment for the employee, if necessary, and, thereafter, will provide transportation by bus, train, plane or automobile to the employee’s home terminal, if and when directed by a doctor.

 

An employee that has a change in their medical duty status shall report that change to the Employer.

 

In the event of a fatality, arising in the course of employment while away from the home terminal, the Employer shall return the deceased to the home of the deceased at the point of domicile.

Anything of note?

Michael C. Duff

Gig Economy Bigger Than Thought and Growing

For several years I have been voicing my suspicions that the Gig economy was bigger than was being admitted. A new-ish study from Upjohn Institute persuades me that my instincts have not been failing me:

We find that, upon probing, roughly one in 10 workers who initially reports working for an employer on one or more jobs (and thus is coded as an employee) is in fact an independent contractor on at least one of those jobs. Incorporating these miscoded workers into estimates of work arrangement on the main job nearly doubles the share who are independent contractors, to about 15 percent of all workers. Young workers, less-educated workers, workers of color, multiple-job holders, and those with low hours are more likely to be miscoded. Taking these workers into account substantively changes the demographic profile of the independent contractor workforce. 

I suspect that this estimate understates the situation, and that the Gig economy is a hegemonic Leviathan. The law will likely react to this development wanly by creating an intermediate category like dependent contractors, though it is also conceivable that states (local and national) will more aggressively simply carve out areas of social policy to apply to utilizers of independent contractors in the same way that they apply "employment law" to "employers" and their "employees." (See page 7 of the attached). Indeed, as someone who has written many entries on these developments I have often found myself wondering why the logical outcome of this purported deregulation won't be to more broadly regulate "labor."

Time will tell. But as I remind students in my workers' compensation classes, the course will not be needed if no one is an employee (at least not in its present form).

Michael C. Duff 

Additional Reflections on Kuciemba (the Covid 19 Liability Case)

The workers’ compensation portion of the Kuciemba case holds that workers’ compensation exclusivity does not defeat “take home” liability. The exclusive remedy bar was found not to apply to this category of cases. A tort case would in principle have been available had the Covid-19 liability not been “crushing.”

Ordinarily, an employee’s exclusive remedy against her employer for work related injury or disease is workers’ compensation. Additionally, the close relatives of employees killed by work are limited to meager workers’ compensation benefits (exclusively) and may not bring a wrongful death (torts) suit against the employers of their deceased relatives in connection with the work-related death. But that type of “exclusivity” applies only when the relative is attempting to “stand in the shoes” of the deceased employee and to bring a tort action in connection with the work related death.  We saw this play out over and over again during the pandemic—particularly in connection with meat processing plants and nursing homes.

But if an employee brings home a substance (like asbestos) or a virus on his or her clothing and a household/family member becomes sick or injured and sues in tort, the household/family member is not seeking “derivative” damages for the employee’s work-related injury or illness (the “transporting” employee need not in fact be injured or sick at all). Rather, the household/family member is seeking an independent remedy for her own injury or illness. Kuciemba did not change this principle and in fact reaffirmed it.   

The essential idea in Kuciemba—that Covid-19 tort liability would crush business—appears over and over again in tort law. This morning I reread Strauss v. Belle Realty Co., 482 N.E.2d 34 (N.Y. 1985). In that case a blackout in New York City (among other things) disabled electric pumps in many apartment buildings, which prevented water in some of those buildings from reaching upper level apartments. An old man wandered from his apartment to the building’s basement to get water (the blackout occurred in July 1977, so it was hot). The man fell on defective steps and sued the apartment building and the utility company for costs arising from his injuries. It had been established in prior related cases that the utility company in question was grossly negligent. Nevertheless, the man was denied recovery from the utility because of the potential for “crushing” liability being imposed on utility companies (as an aside, rules in this area vary from state to state—the rule is not universally nonliability). When I read this case in law school, I was “encouraged” to see utilitarian arguments in a particular way—utility companies and reasonable rates are necessary for all (!). But by then I had already known too many actually crushed people who had fallen down steps. The people who will suffer from the Kuciemba rule are very foreseeable. In the end, I am with the Strauss dissent that a wrongdoer should have to prove (convincingly) that liability would crush it before we allow escape from the consequences of wrongful conduct. I know without doubt who will actually be crushed under business as usual rules.

Michael C. Duff

My Review of Stephanie Bornstein's Article, "Confronting the Racial Pay Gap"

My review of Stepanie Bornstein's Confronting the Racial Pay Gap,  75 Vand. L. Rev. 1401 (2022), has just been posted on the Jotwell (Journal of Things We Like Lots) website. For those who may not know, Jotwell publishes timely reviews of excellent emerging legal scholarship:

Stephanie Bornstein’s illuminating article, Confronting the Racial Pay Gap, performs an almost shockingly useful math exercise for legal theorists. First, Professor Bornstein recounts statistics on the racial disparities between White families and families of color. “Recent estimates show the median net worth of an average White family is nearly ten times that of an average Black family” (in 2016, $171,000 compared to $17,100) “and nearly seven times that of the average Latinx family” (in 2019, $142,180 as compared to $20,765). (P. 1405.) She observes that “despite gains in the perceived social and economic status of Black and Latinx Americans, racial wealth gaps are worse than they were thirty years ago.” (P. 1416.)

Professor Bornstein then highlights the astounding details of the racial pay gap. Using the metric of comparing only workers who work full-time, year-round, in 2019, the average Black worker earned 73.5 cents and the average Latinx worker earned 74.6 cents on the dollar to the average White worker. While there was some improvement prior to 2000, these racial pay gaps are now larger than they were four decades ago. Before commenting upon some of the underlying findings in this global result, I want to pause here to consider what these two conclusions tell us in particular about the economic dynamics at play in White/Black relations in the United States. Here comes the math. White families have ten times the wealth that Black families possess and the gap cannot be closed with wages.

I also comment on facts that may be relevant to workers' compensation:

Occupational segregation—the distribution of workers by race and gender in different industries and occupations—calls into question original wage setting functions. I find it interesting when jobs are considered “good jobs” until women and people of color begin to obtain them. Somehow at that point they become less good. Occupational segregation causes me also to think about the extent to which Black workers have over time been shunted into dangerous work, even before the pandemic. Professor Bornstein’s article usefully makes me more suspicious of such “accidents” and additionally causes me to question the “neutrality” of all wage-based benefits systems.

Michael C. Duff

Earnings Disparities and Workers’ Compensation Issues Connected to Race and Ethnicity

Many employee benefits systems, including workers’ compensation, are pegged in a purportedly neutral fashion to earnings. Thus, in workers’ compensation we might say that a benefit is based on 66 2/3% of the preinjury average weekly wage capped at the state average weekly wage for a statutorily defined number of weeks. But embedded in this structural approach to benefit delivery is the reality that earnings themselves are demonstrably negatively impacted by race and ethnicity. The Office of Federal Contract Compliance Programs tracks these wage disparities by state. How does your state fare?

Aside from the structural wage issues I’m underscoring, more work is needed to investigate rates of injury and workers’ compensation claiming as impacted by race and ethnicity. A 2023 study I found through PloS One in the National Library of Medicine/National Center for Biotechnology is titled “Racial and ethnic disparities in workers’ compensation claims rates.” The study is authored by Caroline K. Smith, Sara Wuellner, and Jennifer Marcum.  Here is the abstract:

Workers of color experience a disproportionate share of work-related injuries and illnesses (WRII), however, most workers’ compensation systems do not collect race and ethnicity information, making it difficult to monitor trends over time, or to investigate specific policies and procedures that maintain or could eliminate the unequal burden of WRII for workers of color. The purpose of this study is to apply a Bayesian method to Washington workers’ compensation claims data to identify racial and ethnic disparities of WRII by industry and occupation, improving upon existing surveillance limitations. Measuring differences in risk for WRII will better inform prevention efforts and target prevention to those at increased risk.

This is well worth a read and warrants further discussion.

Michael C. Duff

Implications of Reshoring for Workers’ Compensation Systems?

I’m not entirely sure what “reshoring” or “Bidenomics” mean, and I don’t think I’m alone. (See Brooke Sutherland’s Bloomberg piece of 6/30/23). According to a June 1 CNBC article, however:

• A new “reshoring” trend is set to upend global supply chains as firms look to source products — such as clothes and computer chips — closer to home, turning away from manufacturing powerhouses like China.
• Mentions of “re-shoring” in S&P 500 earnings transcripts were up 128% in the first quarter against the same time a year ago, according to Bank of America — seeing higher growth than mentions of “AI”.
• Moving some production closer to home is vital for sectors such as apparel, according to industry veteran Bill McRaith, who said the current supply chain model “should be destroyed”.

Here is my thought experiment. Suppose manufacturing increases and that at least some of the increased activity involves human, in addition to robot, employment (a point the Biden folks seem to be counting on). Unless one thinks the industry returning has been made safer during its sojourn abroad (my sense is it was often the opposite), maybe risk is returning. That is, in addition to the increased need for domestic shipping (which might be playing a part in recent Teamster “chippiness”) maybe we will see “re-dangerous” manufacturing—with all that the increased danger would portend for workers’ compensation.

Michael C. Duff

Sick Workers, Sick Families, Employer Immunity: California Picks a Pyrrhic Victory in Kuciemba

Nero fiddled, and I really don’t know how white powder made its way into the White House. But I do know that the California Supreme Court just issued an opinion in Kuciemba v. Victory Woodworks that will be incredibly hurtful to the working class during the next pandemic. I wonder how the California legislature will react. Workers’ compensation exclusivity would not prevent one spouse from pursuing a negligence claim against the other spouse’s employer when the subject of the first spouse’s suit is independent from the work-related injury or disease of the second spouse. How could it? (See Kuciemba, slip op. at 19-20). But the California Supreme Court nevertheless said that the first spouse can’t bring a negligence suit for her own injuries for “policy reasons.” (See Kuciemba slip op. at 1-2).  The facts are simple:

On May 6, 2020, Robert Kuciemba began working for Victory Woodworks, Inc. at a construction site in San Francisco. About two months later, without taking precautions required by the county’s health order, Victory transferred a group of workers to the San Francisco site from another location where they were probably exposed to the virus. After being required to work in close contact with these new workers, Robert became infected. He carried the virus home and transmitted it to his wife, Corby, either directly or through her contact with his clothing and personal effects. Corby was hospitalized for several weeks and, at one point, was kept alive on a respirator. Victory has been determined to have no liability for its negligent actions. It’s not just that Corby cannot prove she was made sick by Victory. Rather, Corby has been determined to have no right to attempt to prove she was made sick by Victory’s conduct.

It comes down to this. Imagine you are one of those unfortunate essential workers (often of color, by the way) compelled to work (not from home) during the next pandemic (which, trust me, is coming). Your employer negligently exposes you to the next virus (is this difficult to imagine? It represents the facts of this case). You bring the virus home. If you get sick, you are left with an inadequate workers’ compensation remedy (assuming you can even prove the workplace “caused” your contraction of the virus). If you get your family and everyone else in your household sick (with or without your becoming sick), their illness is damnum absque injuria (damage without any injury action).

What does this really mean? To the majority in Kuciemba the business community has been spared the risk of “unlimited” liability. As I teach my torts classes, there has never been expansion of tort law that was not accompanied by the business claim that liability had effectively thereby been “infinitely” increased. In some eras the argument has been successful; in others it has not. The message now being conveyed by the courts to employees seems to be that (in an array of workplace contexts under various statutes) workplace safety must be obtained outside the confines of existing general law. I suspect that unions will take notice and that collective bargaining over safety may look very different in the near future. I also wonder—as I have said—what impact such judicial conclusions will have on future lawmaking.

Somewhat more subtly, the continuous development of liability immunity transfers the costs of injury (which, like energy, can never be destroyed, only transformed) from employers and other large corporations to the general citizenry. Those costs will either be “picked up” by the national government (in the form of taxes—Covid-style or otherwise) – or will manifest in other ways. Those “working from home” may not immediately notice. But as every dystopian novel fan knows, eschewed rescue invites danger.

Michael C. Duff

Justia's Workers' Compensation Laws: 50-State Survey

Hat tip to my research assistant Alexa Benson for alerting me to the Justia Workers' Compensation materials (especially the 50-state comparative survey). I plan to begin aggressively exploring with my RAs this summer open source workers' compensation comparative materials. Hopefully we can begin developing some bottom line comparative charts helping to illuminate the justice considerations in post injury indemnity benefits of injured workers. I continue to be astounded at how "scheduled" partial disability benefits are pulled out of thin air - a subject I've previously written about in detail.

Michael C. Duff   

On the Workers’ Compensation Quid Pro Quo and the Racial Wage Gap

Some obvious things take their time to hit me in just the right way that I take notice. I spend a lot of time thinking and writing about what I perceive as the inherent unfairness for all workers embedded in the workers’ compensation quid pro quo – the historical trade of tort remedies for workers’ compensation benefits. But lately I have also been thinking about whether statutory wage-based benefits necessarily carry within them racial injustice. To put it as simply as I can, if wages are inherently racially biased, any wage-based benefit (including workers’ compensation) must also be biased.

A “racial pay gap” is not as widely known or discussed as the gender pay gap, despite its being both larger and more resistant to improvement over time. Using the metric of comparing only workers who worked full-time, year-round, in 2019, the average Black worker earned 73.5 cents and the average Latinx worker earned 74.6 cents on the dollar to the average White worker. While there was some improvement prior to 2000, these racial pay gaps are now larger than they were four decades ago. Now, you can have your own views about why these gaps exist. If you hum to yourself the tune, “That’s Just the Way it Is,” what I say next will not make much sense to you. But suppose you see things somewhat differently. I’m reading Professor Stephanie Bornstein’s lucid and eye-opening forthcoming Vanderbilt Law Review article, “Confronting the Racial Pay Gap,” and find myself agreeing with the data and arguments underlying her assertion: “In the 1980s, as unemployment rose and unionization rates fell, the Black-White wage gap increased.” Bornstein goes on to summarize economist Elise Gould’s work:

In the 1990s, with an increase in the minimum wage and strengthening labor markets generally, the gap declined for a period of time, stall[ed] . . .  in the early 2000s . . . In the two decades since, the Black-White wage gap has increased in all wage quartiles for workers of all education levels. . . The average overall Black-White pay gap increased from 21.8% in 2000 to 26.5% in 2019, with marked increases at every level of education: from 15.3% to 18.3% for high school, 17.2% to 22.5% for college, and 12.5% to 17.6% for advanced degree holders. That means that, in 2019, Black advanced degree holders earned on average 82.4 cents to the dollar of White advanced degree holders. Even a multiple regression analysis that controlled for not only education level but also age, sex, and geographic region of workers revealed a significant, and worsening, gap from 10.2% in 2000 to 14.9% in 2019.

There are similar such gaps between Hispanic and White men; and the even more dramatic gaps involving women of color are doubly impacted by gender and race. Additionally, “[w]hen compared to the earnings of White women . . . the racial pay gap for Black and Latinx women has also increased. Black women went from earning 92.1% of what White women earned in 1979 to 80.1% in 2019 and Latinx women from 82.5% to 70.4%.”

I don’t care to discuss the existence of such gaps. I would refer the reader to Professor Bornstein’s fine article and ask you to assume that I consider their existence irrefutable—though the cause of the gaps is, as I have already suggested, open to debate. A critical sentence in Bornstein’s article is that “scholars have documented that ‘observable’ or ‘explained’ factors like education, work experience, and geography fail to account for between one-third and two-thirds of racial pay gaps.” Furthermore, “. . . the vast racial pay gap does not account for the additional economic inequality wrought by excess unemployment and mass incarceration of Black and Latinx Americans.” If anything, the racial wage gap overstates the economic “progress” of, in particular, Black men.

Back to workers’ compensation. On the one hand, the system is neutral: however wages became what they are, workers’ compensation tries to repair (badly in my view) destruction of that earning capacity. But there is a very serious discussion of the demographic concentration of workers of color in low paid and more dangerous occupations that needs to be undertaken. I link you here to the Center for American Progress’s article, “Occupational Segregation in America.”

If I play around in the “tool” accompanying the article, I find that the top ten occupations for black men (in terms of frequency or prevalence) are: barbers; industrial truck and tractor operators; refuse and recyclable material collectors; security guards and gambling surveillance officers; bus drivers; baggage porters; dishwashers; cleaners of vehicles and equipment taxi drivers; and laborers.  

For black women, the top ten occupations are: home health aides; nursing assistants; personal care aides; food servers; postal service mail sorters; maids and housekeeping cleaners; “other” health care support workers; licensed practical and vocational nurses; postal service clerks; and laundry and dry cleaning workers.

I hypothesize that a much higher injury rate than average exists among workers of color who frequent these occupational categories. And if, as the Center for American Progress argues, “Race-based occupational segregation has its roots in slavery,” inadequate work injury remedies become harder to characterize as a mere “accident” of history. A person of color is more likely to have been channeled into injury prone occupations and then compensated for injury based on a wage scale that is itself rife with racially disparate elements. This is not, by any means, my final word on the workers’ compensation connection to such issues. But for now it seems enough to say that the idea that workers’ compensation is somehow immune from this type of analysis is not persuasive.

Michael C. Duff

Wefel Center Conference: Fifty Years After 'Inadequate and Inequitable'

We will be having a conference at the Saint Louis University School of Law on workers' compensation on Tuesday, October 11:

In 1970, Congress noted in its prelude to enactment of the Occupational Safety and Health Act that “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.” In reaction to these developments Congress established a National Commission on State Workmen’s Compensation Laws to “undertake a comprehensive study and evaluation of State workmen’s compensation laws in order to determine if such laws provide an adequate, prompt, and equitable system of compensation.” The Commission formed by President Nixon was tasked with providing a “detailed statement of the findings and conclusions of the Commission, together with such recommendations as it deems advisable” no later than July 31, 1972. That report was made, about fifty years ago. The Commission’s ultimate conclusion was “that State workmen’s compensation laws are in general neither adequate nor equitable.” The purpose of this Conference is to reflect upon the significance of the report as a moment in the legal history of the treatment of workplace injury. To aid in the reflection, we discuss what workers’ compensation is, the justice it attempts to effectuate, what happened leading up to the 1970s, and the system’s uncertain future.

The conference link is here. 

Michael C. Duff

Workers' Compensation and the ABA Journal of Labor & Employment Law

I am so grateful to be a new co-director of the Wefel Center for Employment Law at the Saint Louis University School of Law! I also now share duties as co-editor of the American Bar Association's Journal of Labor & Employment Law with SLU Law Professor (and all around all-star) Marcia McCormick. (The Journal is hosted by SLU Law). Professor McCormick has been extremely supportive of my interest in workers' compensation. To that end, I want to encourage writers of analytical workers' compensation articles to submit to the ABA Journal of LEL. It is sometimes difficult to determine where to submit pieces on tricky workers' compensation issues. The main purpose of this post is to ask that you consider sending them our way! Submission information is here.

Michael C. Duff    

Tyson Losing Defense Production Act Covid Cases As Predicted

As we predicted here, the Defense Production Act defenses in the worker death cases by Tyson went nowhere. From Bruce Rolfsen at Bloomberg:

 

A Trump administration executive order doesn’t protect Tyson Foods Inc. from workers’ Covid-19 death and injury liability lawsuits, the US Court of Appeals for the Fifth Circuit decided Thursday.

 

The Fifth Circuit 3-0 ruling is similar to a decision issued by the US Court of Appeals for the Eighth Circuit on Dec. 30 that also found Trump administration actions didn’t shield the poultry processor from two lawsuits involving workers in Iowa.

 

The decision could open the door for workers’ cases to be heard by Texas state courts where the lawsuits were filed before Tyson sought federal review.

 

Unfortunately, state law is now unlikely to be kind. I suspect that the Texas cases may be covered by arbitration and the Iowa cases may well be subject to the exclusive remedy rule given cases floating out there like  Brcka v. St. Paul Travelers Companies, Inc., 366 F.Supp. 2d 850 (S.D. Iowa 2005). (For a discussion of the difficulties workers face proving causation in Covid-related workers' compensation claims see here). But we'll see.

 

Michael C. Duff

 

 

New Article, in ABA TTIPS Journal, The Brief, on the 1972 National Commission Report

American Bar Association, The Brief, Volume 51, No. 3, p.8 (Spring 2022).  

     The year 2022 marks the fiftieth anniversary of the publication of the Report of the National Commission on State Workmen’s Compensation Laws.*  That 1972 Report was the culmination of a year-long effort by a large panel – supported by a small army of researchers and consultants – which set forth, among other things, nineteen essential recommendations for a modern state workers’ compensation program. 

     The Commission did not, as sometimes represented, recommend federalization of the system.  To the contrary, the Commission favored state administration, but called for Congress to enforce the essential recommendations after three years in the event that the states did not comply and adopt them.

     While federal action did not, in the end, unfold, the Report has remained an enduring and influential force in the community of lawyers, academics, and others involved in the understanding and assessment of workers’ compensation programs.  So comprehensive, thoughtful, and expert is the Report that, to this day, no analysis of the system can competently be undertaken without reference to this pivotal study.

     The latter phenomenon is due at least two factors.  First, despite the passage of a half-century, the basic principles and objectives of the system have not changed.  Second, the Chairman of the Commission, John F. Burton, Jr. (an economist with a law degree) in the years following the Report emerged as the nation’s uncontested authority on workers’ compensation – and an untiring exponent of the Commission’s broader vision.  Burton, along with Executive Director Peter S. Barth, have consistently revisited the Report with retrospectives and public addresses, challenging system participants to reflect on whether the promise of workers’ compensation is being vindicated in practice.  A third factor must be added: the Report is a literary masterpiece and a pleasure to read. 

     The Commission’s Chief Counsel, John Lewis, has characterized the Commission and its Report as marking a turning point in workers’ compensation.  The Report “provided a critically needed analysis, one that ought to be constantly reviewed and renewed, rather than being left as a historical document.”  

     Toward that end, this writer has published an article in the ABA periodical, The Brief, which sets forth a fiftieth anniversary briefing on the Commission and its Report.  The article sets forth the background and substance of the Report, its aftermath, its impact, its attitude towards lawyers, and thoughts regarding this remarkable document’s enduring relevance.

***

* Nat’l Comm’n on State Workmen’s Compensation Laws, The Report of the National Commission on State Workmen’s Compensation Laws (1972) (hereinafter Nat’l Comm’n Report), http://workerscompresources.com/national-commission-report/.

Justices Overturn Washington Workers’ Compensation Law On a Strict Reading of Intergovernmental Immunity

My SCOTUS blog analysis of the Supreme Court's opinion in U.S. v. Washington is here.

Michael C. Duff

U.S. v. Washington #2 - Post on the Oral Argument

I have posted a recap of the Hanford oral argument on the SCOTUS blog.

 

It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers’ compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.

 

The state’s old law, H.B. 1723, was aimed at federal contract workers who got sick after helping clean up the Hanford nuclear site in southern Washington. It created a presumption that certain conditions suffered by those workers were “occupational diseases.” The new law, S.B. 5890, expanded the presumption beyond federal workers; the presumption now applies to “all personnel working at a radiological hazardous waste facility.” Because the merits of the case concern whether Washington can constitutionally discriminate against federal contractors by utilizing a causation standard making it easier for those employees to obtain workers’ compensation awards (with the federal government as de facto self-insurer of the awards), a problem of mootness arose. Discrimination — if that is what it was — ceased to exist as soon as the new law took effect on March 11, 2022.

 

Still, as discussed at length during Monday’s argument, the two statutes might not be coextensive in the benefits they offer to covered workers. As Justice Clarence Thomas observed, some statutory beneficiaries under the old law might prefer its protections. Some workers engaged in arguably less hazardous work may have been covered under that law but not under the new law. If some workers’ compensation claims remain live under the old law, then the case might not be moot after all. But Tera Heintz, arguing for Washington, assured the justices that the new law eliminates that possibility because it applies retroactively. The result, Heintz said, is that the 66 pending claims and 140 closed claims are now governed exclusively by the new law. To the extent the United States seeks declaratory and injunctive relief from the old law, no such relief could be available.

The rest of the post is here.

Michael C. Duff

Workers' Compensation at the Supreme Court - The Hanford Reservation & Disease Causation

I've been retained by the SCOTUS blog to do a preview, oral argument recap, and eventual opinion analysis in the case U.S. v Washington that will be aegued in the Court this coming Monday morning. The case is full of issues likely to be of interest to workers' compensation afficiandos. I'll let my post speak for itself:

Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.

 

A 1936 federal law waives federal immunity from state workers’ compensation laws on federal land and projects. Congress passed the law after the Supreme Court held that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver authorizes state workers’ compensation authorities to “apply [state workers’ compensation laws] to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and property in the State and belonging to the Government, in the same way and to the same extent as if the premises were under the exclusive jurisdiction of the State in which the land, premises, projects, buildings, constructions, improvements, or property are located.”

 

The original purpose for the extension of state workers’ compensation to federal land and projects was to ensure that non-federal workers involved in “federal work” would be covered by some form of workers’ compensation. Without this extension of coverage, the workers might be left without such protection and be forced to rely on a long, expensive civil tort case to obtain a remedy for workplace injury or disease.

 

Workers’ compensation laws and regulations provide workers with periodic cash benefits and payment for medical treatment for diseases and injuries suffered while working. Diseases have historically been very difficult to cover under workers’ compensation because of causation requirements. Many diseases may have both work and non-work causes. United States v. Washington implicitly contemplates such situations.

 

The underlying dispute in the case is whether the federal government must continue to pay the workers’ compensations claims of certain workers employed by private federal contractors. These workers were and continue to be at high risk of contracting diseases caused by workplace exposure to radioactivity and toxins on the Hanford nuclear reservation, a federally controlled tract of land located on the Columbia River in the state of Washington.

 

The Hanford reservation is a large, 586-square-mile facility with a storied history. Built in 1943 as part of the Manhattan Project, the site contained the first full-scale plutonium production reactor in the world. Plutonium produced at the site was used in the atomic bomb detonated over Nagasaki. The reservation, which also played a role in the Cold War, was decommissioned in 1989 and is being cleaned and remediated, in substantial part by the contract workers that are at the center of the case. It is obviously an ultra-hazardous place to work. Hanford’s cleanup is expected to take decades, and many workers are likely to become very sick during the effort. Some will die. Their workers’ compensation claims are likely to be very expensive, which raises the stakes in the case.

 

The federal government, reimbursing the costs of certain of its Hanford contractors, paid the claims of the workers without objection until Washington modified its workers’ compensation law in 2018 to make it easier to prove disease causation in Hanford-related claims than had been the case under prior law.

 

You can read the rest of the SCOTUS blog post here.

Michael C. Duff

Employee Status: Not a New Problem

Fresh off a presentation on the Gig economy at an ABA function, and in preparation for a lecture I will be delivering to my students this week, I am inspired to reproduce the language of a decades-old U.S. Supreme Court labor law case:

The argument assumes that there is some simple, uniform and easily applicable test which the courts have used, in dealing with such problems, to determine whether persons doing work for others fall in one class or the other [i.e., independent contractor or employee]. Unfortunately this is not true. Only by a long and tortuous history was the simple formulation worked out which has been stated most frequently as ‘the test’ for deciding whether one who hires another is responsible in tort for his wrongdoing [i.e. Restatement 2nd of Agency Section 220]. But this formula has been by no means exclusively controlling in the solution of other problems. And its simplicity has been illusory because it is more largely simplicity of formulation than of application. Few problems in the law have given greater variety of application and conflict in results than the cases arising in the borderland between what is clearly an employer-employee relationship and what is clearly one of independent entrepreneurial dealing. This is true within the limited field of determining vicarious liability in tort. It becomes more so when the field is expanded to include all of the possible applications of the distinction.

It is hardly necessary to stress particular instances of these variations or to emphasize that they have arisen principally, first, in the struggle of the courts to work out common-law liabilities where the legislature has given no guides for judgment, more recently also under statutes which have posed the same problem for solution in the light of the enactment's particular terms and purposes. It is enough to point out that, with reference to an identical problem, results may be contrary over a very considerable region of doubt in applying the distinction, depending upon the state or jurisdiction where the determination is made; and that within a single jurisdiction a person who, for instance, is held to be an ‘independent contractor’ for the purpose of imposing vicarious liability in tort may be an ‘employee’ for the purposes of particular legislation, such as unemployment compensation .  . . In short, the assumed simplicity and uniformity, resulting from application of ‘common-law standards,’ does not exist. . . N.L.R.B. v. Hearst Publications, 322 U.S. 111 (1944).

 

So, put your thumb on whatever side of the scale you like, but please don't pretend you are acting in accord with "settled" principles of law. Employment policy is tough and brutally fact-dependent. And if you eviscerate employment law the social policies previously delivered through the medium of that law will likely be transferred elsewhere, and who knows how?

 

Michael C. Duff 

Fifty More Years of Ineffable Quo?: Workers' Compensation and the Right to Personal Security

Here is an abstract of my most recent academic article on workers' compensation:

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its findings in 1972 and concluded that American workers’ compensation was neither fair nor adequate. The Commission made nineteen “essential recommendations” for the system’s improvement. The federal Department of Labor shifted into high gear to monitor state compliance with the recommendations under implicit, but vague, threat of workers’ compensation federalization if progress was not achieved. In what is perhaps the most interesting part of the story, nothing changed. Today, the Department of Labor no longer monitors workers’ compensation’s attainment of any benchmarks, although some organizations monitor workers’ compensation “trends.”

 

Lost in discussions of workers’ compensation is any sense of a baseline. Why does this matter? Because workers’ compensation was conceived as a “Grand Bargain” or “quid pro quo,” in which workers surrendered tort rights for adequate statutory benefits. This article contends that the absence of investigation as to whether workers’ compensation benefits are too low has effectively unmoored workers’ compensation from the faintest echoes of the tort rights for which it was exchanged. The article seeks to provoke discussion of what it means, as a matter of both policy and constitutional law, for a state to dispossess injury remedies by converting workers’ compensation from a reasonable substitute remedy for tort to a pale, anti-destitution law relegated to functioning as a form of “welfare.” The article explores the phenomenon of permanent partial disability benefits paid to workers for injuries according to bizarre schedules that are not to any degree based on workers’ lost earning capacity nor on any rational criteria that anyone can identify. Permanent partial benefits—the largest component of workers’ compensation indemnity benefits—are arbitrary.

 

In its essence this article is about whether state legislatures have carte blanche to annihilate meaningful remedies for workers wrongfully injured in the workplace. Furthermore, to the extent that state legislatures pursue such objectives, the article presses for recognition of a Blackstonian “absolute” right to personal security. Evisceration of remedies not only makes workers poorer, but also leads to their insecurity because they work for actors with insufficient incentives to act safely. The solution to the problem is for legislatures to be more transparent about the relationship between workers’ compensation benefits and foregone negligence remedies—particularly because the original Grand Bargain was struck at a time when negligence affirmative defenses would instantly defeat tort claims, a situation that no longer obtains. The time for benefit inscrutability and ineffability is over.    

A link to the full version is here.  (Full pdf is now available)

Michael C. Duff

 

January 2022 Rand Report on Workers' Compensation and COVID is Highly Recommended!

          The Rand Corporation last month published an educational white paper on COVID and workers' compensation that is educational in the extreme for the workers' compensation professional. The lead author is an economist, and his remarks about insurance, in particular, are enlightening.

 

***

Michael Dworkin & Bethany Saunders-Medina, COVID-19 and Workers’ Compensation: Considerations for Policymakers (White Paper, Rand Corporation, January 2022), https://www.rand.org/content/dam/rand/pubs/perspectives/PEA1300/PEA1346-1/RAND_PEA1346-1.pdf. 

          

         In this white paper, economists at the Rand Corporation broadly examine workers’ compensation and its role in the COVID pandemic.  

 

The authors accurately depict the workers’ compensation program in general, and then, pertinently, note that many state statutes (though not that of my state, Pennsylvania) exclude “diseases of everyday life.”  Yet, they correctly point out that, despite difficulties of proof of causation (which is likely why such maladies are excluded):

1. Some state laws have been amended, via the adoption of causation presumptions (they vary widely), to make it easier for certain workers to make COVID claims; and

2. Even without the aid of presumptions, many claims by workers have in fact been voluntarily paid.  (Others, certainly in Pennsylvania, have, in the face of insurer denials, been litigated by workers and their dependents.)

          The authors are persuaded by studies that indicate that African-Americans, Hispanics, and modestly-paid workers are more prominently at risk of occupational exposure to, and illness from, COVID.  This is so given their employment in certain essential jobs.  Such essential workers are “less likely to be able to work from home than white essential workers …[.] [Also,] essential workers who cannot work from home have lower incomes than those who can work from home.”   
 

          The authors strongly suggest that compensating COVID infections, as matter of law and practice, is advisable.  Prompt no-fault payment may keep workers beneficently at home during their infections, thus protecting not only themselves but the rest of the workforce.  On the risk management side, wide acknowledgment of COVID as compensable should, at least in theory, prompt employers to undertake safety efforts to avoid claims. The authors, indeed, suggest that employers which engage in systematic, proactive efforts to avoid contagion in the workplace (like providing personal protective equipment and installing improved ventilation systems) should receive premium discounts.
 

          Of note, still, is the authors’ point that, in the face of a pandemic claims, imposing premium increases for those with a disadvantageous experience (lots of claims) does not make sense:
 

Part of the usual justification for [such] insurance pricing is that safe employers should not be forced to cross-subsidize the costs incurred by more-careless employers in the same industry.  This makes sense for injury risks that are largely under the employer’s control.  In the pandemic, however, community spread undercuts this fairness argument: Employers that do everything right still face some possibility that their workers will become sick and file claims.
 

As a result, the authors point out, rating bureaus like NCCI and the PCRB currently “have adopted regulations excluding COVID-19 from experience rating.”  (As for the Pennsylvania Rating Bureau policy, see https://www.hendersonbrothers.com/wp-content/uploads/2020/05/Pennsylvania-Workers-Compensation-Rule-Changes-due-to-COVID.pdf.) 

          Of course, a jurisdiction which legally recognizes occupationally-acquired COVID-19 as compensable will likely impose increased premium costs on employers.  And employers, they say, must be ready for the potential that a worker who has successfully claimed work-related COVID may, in fact, have incurred the infection somewhere else.   

 

The authors, as if to ease the harshness of this observation, follow-up this unremarkable proposition by observing: “Economic research has shown that workers – not employers – ultimately pay for mandated benefits like workers’ compensation via reduced wages ….”  (Citing Jonathan Gruber & Alan B. Krueger, The Incidence of Mandated Employer-Provided Insurance: Lessons from Workers’ Compensation Insurance, 5 Tax Policy and the Economy, pp.111-143 (1991)).  Yet, they in turn further explain: “[T]hese findings reflect long-run labor market equilibrium; it is plausible that employers will have to pay higher total compensation costs in the short run until wages adjust.”

New, Accessible Cal-Berkeley Law Review Article Treats the "Fissured Workplace," Argues for More Rights for "Non-entrepreneurial" Independent Contractors

    Next month, Professor Duff and I will (after a two-year delay), present, for the ABA New Orleans CLE, on the gig workforce and workers' compensation.  In reviewing the absolute latest literature, one broad treatment of the issue stood out most prominently for me: Tanya Goldman & David Weil, Who’s Responsible Here? Establishing Legal Responsibility in the Fissured Workplace, 42 Berkeley Journal of Employment & Labor Law 55 (2021).

    In that new article, the authors propose a re-conceptualization of employment, vis-à-vis work rights and social welfare protections, in light of what they call the “fissured workplace.” This term -- coined by co-author Dean David Weil in his enlightening 2014 book -- refers to the decline of the familiar employer-employee model of work, and the corresponding rise of non-entrepreneurial independent contractorship, franchise arrangements, and the like.  The authors explain this trend, revisiting in critical aspect Weil’s 2014 account.  (As for the original book, see David Weil, The Fissured Workplace: Why Work Became So Bad for So Many and What Can Be Done to Improve It (2014)).

    The article, a concise and fluidly-composed tour de force, is an excellent primer (or refresher) on the thorny issue of employment and the rights and benefits associated with the same.  And, notably, the authors are attentive to one key benefit enjoyed by employees but not by independent contractors: workers’ compensation.

    In summary, a “common repercussion of fissured workplace business models," the authors posit, is “that they release the organizations that most directly benefit from contracted work from obligations to follow standard employment and labor laws.  In other words, many businesses now treat workers like employees (specifying behaviors and then closely monitoring outcomes) but classify workers as independent contractors (engaging them at an arms-length and depriving them of the rights and benefits tied to employment).”   Indeed, as in the original Weil book, the authors depict the fissured workplace as a hazard for workers, who have lost, or stand to lose, critical rights, social insurance protections, and other benefits which have, by tradition, been tied to employment.

     The authors also make a simple, critical point which is sometimes forgotten: “Independent contractors are no longer primarily entrepreneurs with skills and bargaining power who do not need significant legal protections; instead, they are often the most vulnerable and underpaid workers.”

    The authors’ employment-and-rights reconceptualization, analyzed for the most part on a philosophical level, advocates for rights being tied not to employment (and its century-old, but inapposite, “control” criterion) but, instead, to work. 

    They reject, notably, the idea that a third category of worker, lying somewhere between employee and independent contractor (the “dependent contractor”) should be created.  They assert that such a designation could further erode labor standards and would be a step in the wrong direction.  They state, among other things, that categorizing rideshare drivers in such a manner “would only decrease their rights, including rights to a minimum wage and access to workers’ compensation.”

    Instead, they say, rights and benefits tied to work should be analyzed in three categories, which they depict as “a concentric circle framework of rights, protections, and responsibility at the workplace.”

    The first, and most inner, circle, possesses the greatest breadth, and constitutes rights that all workers should possess, regardless of how, in the past, they might have been categorized. “The Inner Circle,” they explain, “includes prohibitions on discrimination and retaliation; affirmative rights to work in a safe and healthy environment; requirements that work be appropriately compensated; and freedom of association and the right to engage in acts for mutual aid and protection.”

    The second, or middle, circle of rights, protections, and responsibilities “are those already linked to employment status, but with a presumption and test that enhance those protections.  These include, for example, the right to overtime under the FLSA, the right to organize and be represented through collective bargaining under the NLRA, and safety net protections including access to workers’ compensation and unemployment insurance.”  

    The third, outer, circle “would include a set of rights, protections and responsibilities that workplace policies incentivize but that employers are not legally required to provide to legitimate independent contractors.  In particular, it would include two social safety net benefits: workers’ compensation and unemployment insurance.  The Outer Circle would also include access to currently non-mandatory benefits such as paid family and medical leave, retirement savings, and training and skill development funds for both employees and independent contractors.”

    The authors’ advocacy is mostly compelling to this writer, though the current political scene and the weakness of worker interests do not favor this framework prevailing anytime soon.  Still, the authors point out that, historically, with a number of enactments, Congress and other lawmakers have in fact shown themselves capable of enacting broad, and needed, employment protections.