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