Saturday, July 1, 2017
In reading Judge Torrey’s insightful review of Peter Rousmaniere’s excellent work on non-claiming, I was reminded of conversations about workplace culture that I have had with my students here in Wyoming. As a former blue-collar Teamster working in a very dangerous environment on the airport tarmac (a somewhat unusual background for a law professor), I was part of a work group that valued, and even insisted upon, the reporting of workplace injuries to our employer. The culture was, in part, a product of worker solidarity—we really cared about each other—but it also had something to do with a certain self-interested, Philadelphia–laboring mindset that I have often thought was beautifully encapsulated by a passage from a labor law opinion, authored by Judge Learned Hand in the 1940s, explaining that when workers:
in a shop make common cause with a fellow workman over his separate grievance, . . . [they] know that by their action each one of them assures himself, in case his turn ever comes, of the support of the one whom they are all then helping . . .
In short, I will support you in your grievances—including the filing of a workers’ compensation claim—if you, one day, help me in mine. Of course, this kind of sentiment is most compelling when there is a high likelihood of injury in the future. But even when that is not the case, workers may be motivated by a situation described analogously by the ADA as “direct threat”: “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” If I am hurt, and cannot perform my job properly and safely, I may wind up hurting you. Much of this is common sense in a reasonably-sophisticated industrial workplace. “Bravado,” or culturally based “lawsuit-avoidance,” would make few inroads on an informed, cohesive group of employees that has been thoroughly exposed to the impacts—both medical and legal—of not reporting workplace injuries.
Even where employees are not culturally bashful about suing, the specter of retaliation is present, and I think fear of retaliation predominantly explains non-claiming. My co-workers and I (this is purely anecdotal, I realize) knew benefits existed, were not especially put off by the prospect of a legal battle, and were not involved in benefit coordination calculations. We feared being fired. As union density has eroded over the last few decades, the claim-protecting mechanism of a collective bargaining agreement has eroded with it. When I worked out on the tarmac, I could not (without cost to my employer) have been discharged for filing a workers’ compensation claim, because an arbitrator would likely have reinstated me under the just cause provision of the collective bargaining agreement regulating my workplace. Outside the confines of the Railway Labor Act, Section 7 of the National Labor Relations Act protects concerted activity in non-union workplaces. During my time as an NLRB agent, I was involved in a number of interesting cases in which employees effectively made workplace safety and injury complaints in a concerted manner, thereby gaining some anti-retaliation protection under the NLRA. In fact, the old chestnut of the non-union “concerted activity” cases, Washington Aluminum, involved workplace safety: employees who engaged in a work stoppage to protest a very cold workplace. The employees, who had been discharged for insubordination, were ordered reinstated by the Supreme Court. In short, subject to narrow exceptions, employees fired for complaining concertedly about working conditions are entitled to reinstatement and backpay under the NLRA. I suspect there are a good number of employees and even lawyers who are not aware of this principle.
I always believed as a blue-collar worker that workplace rights-claiming was an act of worker self-defense; and as a claimants’ lawyer I made the point of reminding my Maine worker-clients that they had likely been paying for their own workers’ compensation insurance for years through lower wages. That realization affected them. In the end, informed worker engagement may be the ultimate pragmatic counterweight to the business interests that Judge Torrey correctly observes are not in the business—nor would we expect them to be—of promoting claims.
Michael C. Duff