Workers’ Compensation Law Prof Blog

Gig Economy Article by Keith Cunningham-Parmeter (Williamette Law School) is One-stop Shopping to Understand the Misclassification Debate Surrounding Platform-based Gig Workers

            In a new article, the author argues that the traditional common law right of control test is inappropriate, and unworkable, for analyses of whether workers in the platform-based gig economy are employees or independent contractors. See Keith Cunningham-Parmeter, Gig-Dependence: Finding the Real Independent Contractors of Platform Work, 39 Northern Illinois University Law Review 379 (2019).

            The author, Keith Cunningham-Parmeter, identifies the long-appreciated reality that the control test was developed centuries ago as the criterion of establishing whether the negligence of an agent of an enterprise, towards a third party, could be ascribed to the enterprise via respondeat superior. If control, or the right of control, existed, then the enterprise would be considered the master, the agent the employee, and vicarious liability would attach.

            This test has, over the last century, been cut-and-pasted over to areas like wage and hour protections and, of course, workers’ compensation. Certainly this describes the Pennsylvania experience and the current law, 104 years after enactment.

            But all of this, the author correctly argues, really does not make any sense. Respondeat superior is based on the idea that an entity which has the power to control a disempowered, subordinate actor presumably also has the economic wherewithal to answer for such an agent’s torts. When such control does not exist, and the agent can be viewed as economically autonomous, it makes sense for that party, a truly independent actor, to be responsible for its torts – and the enterprise protected.  

            Programs like the Fair Labor Standards Act and workers’ compensation, on the other hand, were intended to expand the responsibilities of such enterprises to workers. The control criterion does not vindicate this purpose. In the author’s view, economic autonomy, and not control, should be the controlling test when considering whether a worker is really an independent contractor.

            The author commences his article with an account of the efforts of platform-based gig enterprises – via “clever branding” – to establish their workers as independent contractors. He refers to this practice as reflecting “platform exceptionalism.” The idea here is that the gig economy presents a whole new type of business innovation that does not have employees in the first place. After all, for example, Uber is not a transportation enterprise but, instead, a technology company. The author is, rightly, suspicious of this rhetoric.

            In any event, to remedy the situation, the author argues that courts and legislatures should follow the example of the California Supreme Court in the recent Dynamex case. See Dynamex Operations, W. v. Superior Court, 416 P.3d 1 (Cal. 2018). That case, he explains, “embraced a simplified standard – the so-called ‘ABC Test’ – to determine whether contemporary workers are genuine independent contractors. Rather than engage in the … [control-dominated] multifactorial balancing – a process guaranteed to yield muddled results – the ABC test begins with the presumption that most workers who provide labor to firms are employees. If firms want to overcome this presumption, they must prove three separate elements to establish that their workers possess the marketplace strengths of legitimate independent contractors.”

            Those three elements, notably, are inquiries into whether the worker is engaged in the firm’s usual course of business; whether he or she is operating a separate business; and whether the worker is free from control of the purported principal.

            The author notes that use of this test does not necessarily mean that all platforms will be deemed employers. For example, delivery services workers (as in Dynamex) for enterprises like GrubHub may well be deemed employers, but handymen working for a “chore” platform like TaskRabbit may well be deemed independent contractors.

            The author’s footnotes feature a seemingly unabridged recounting of all the latest cases and scholarship in this area. This straightforward and well-written article is one-stop shopping for the lawyer or judge seeking out the latest arguments, pro and con, on the misclassification debate surrounding platform gig workers.

New Book on Hearing, by David Owen, is an Enriching Read for the Workers' Compensation Professional

            The late 1980s and much of the 1990s were the period of the "Hearing Loss Wars" in Pennsylvania workers’ compensation. Most lawyers and judges came to learn the basic aspects of the law and medicine of hearing loss. We knew by heart that 90 decibels was the OSHA limit for an eight-hour workday, that a worker who experienced a “temporary threshold shift” had no doubt sustained some level of permanent sensorineural loss, and we routinely heard of the 6000 to 8000 hertz “notch” of the typical audiogram. 

            So intense and litigated were hearing loss cases that my treatise on workers’ compensation features nearly 30 single-spaced pages devoted to the law and practice of such claims.

            Those wars are over now, likely because of the decline of manufacturing in our state. If they return, however, both the novice and the hoary veteran will want to read journalist David Owen’s new book, Volume Control: Hearing in a Deafening World (Riverhead Books 2019).

            The author, in a chatty, personal-journey type account, reports here on his investigation into hearing loss, remedies for the same, and seemingly all of its cultural manifestations. Owen, specifically, explores the mechanics and physiology of hearing loss, causation, audiograms, how such losses have been interpreted over the centuries, the experience of the deaf, the business and progress of hearing aids and cochlear implants, and regulation of noise in industry, the military, and in our personal lives.

            Owen frequently turns philosophical about hearing loss. For example, would it be better to be blind or deaf? Owen suggests that most people who have thought about the issue at length believe that deafness is much worse, as it interferes with communication and estranges the victim from society. On another issue, why is it that most of us know that exposure to loud noise can be harmless, but we ignore the hazards nonetheless? One reason is inconvenience or sloppiness, to which we probably can all attest, but it turns out that, as well, the brain actually likes certain things, like music, loud. Rock concerts (and the finales of Brahms symphonies, I would add), are not overwhelmingly loud for nothing.

            The irony, however, is that even soft noises, like the drip of a leaking faucet, can be irritating. Hearing, the author’s interviewees point out, is closely related to our emotions. The author, in this regard, might well have identified loud, unmuffled motorcycle exhaust; giant exhaust pipes on pick-up trucks; and car stereos with exaggerated subwoofers supporting vulgar lyrics. None of these noise sources probably damage hearing, but they disrupt the peace of whole neighborhoods.

            Owen’s most interesting chapters address the recent improvements in hearing aids. For many years, a few companies controlled the market, and for an aid to be adjusted required a trip to the audiologist. Now, however, regulation is loosening, and many enterprises market other devices that aid in hearing, short of being hearing aids. Owens’ chapter, “Beyond Conventional Hearing Aids,” was the most enlightening for this reader.

               In the realm of occupational noise, Owen discusses one item that was often discussed at hearing loss medical depositions, to wit, the role of loud noise in the workplace that was not shown to be in excess of the OSHA thresholds. Experts suggested to Owen that such noise may well, indeed, cause hearing loss – the OSHA standard is hardly definitive in establishing which workers have sustained occupational hearing loss and which have not. As Owen states, correctly, the OSHA standards “say that if you work in a covered industry you can legally be exposed to eight continuous hours of 90-decibel noise (motorcycle eight meters away, lawn mower), or to two hours of 100-decibel noise (New York City subway car, jackhammer, kitchen blender, snowmobile), or to thirty minutes of 110-decibel noise (car horn one meter away, chain saw) – every day of your career .…” Owen concludes, “Probably the best that can be said about the rules is that they’re better than nothing.”  

            In his final chapter, Owen nods his head briefly to the issue of law and regulation. The residents of some urban areas have revolted, in this “deafening world,” and insisted on noise regulation. But, as Owen correctly states, enforcement is a major problem. Already-overworked law enforcement personnel may be reluctant to spend lots of time doing noise control, and some urban areas are unavoidably going to be noisy. He uses the all-night garbage collection trucks of Manhattan as a familiar and persuasive example.

            Owen’s book is not heavily footnoted, but his bibliography features what seem to be excellent references, usually supported by websites, for further reading. The book would have benefited by illustrations and diagrams, but overall this new book is an enriching one for the workers’ compensation professional.

            Especially for those who missed the Wars.       

               

 

 

Principled Article by Chapman University Law Professor Lan Cao Argues for FLSA Protections for Inmates Working in the Prison Labor Industry

            In a new law review article, the author, a law professor, argues that prisoners, when undertaking most aspects of labor, should be considered employees, covered by the Fair Labor Standards Act, and receive at least minimum wage.  Limited authority surrounding this issue exists from the federal courts, but the overwhelming rule is that prisoners generally enjoy no such protections.  See Lan Cao, Made in the USA: Race, Trade, and Prison Labor, 43 N.Y.U. Review of Law & Social Change 1 (2019).

            The author’s advocacy follows her long investigation into what she says is a trend of private companies contracting with federal, state, and private prisons to employ prisoners as labor in the provision of services and the manufacture of goods.  She shows that use of prisoners by for-profit enterprises has long been a matter of tension, particularly where such work, which is often at nominal or no wages, creates an advantage over enterprises that employ free labor at prevailing (or even minimum) wages.  In the last few decades, however, with the rising prison population, such employment has also risen, with private companies contracting with federal and state agencies for inmates to undertake such things as manufacturing apparel and answering calls at call-in centers. Cao cites several muckraking stories on this issue, referencing articles in Mother Jones, The Christian Science Monitor, and an investigation by Pro Publica.  

            Cao argues that the idea that work by prisoners is solely “penological” and rehabilitative is a fiction.  She asserts, on this point, that no research supports the proposition that inmates who work actually experience a lower recidivism rate.  A better policy in this area, she says, would be for inmates to receive wages and develop savings, which in turn would facilitate an easier return to society after release from confinement.

            Cao notes that some laws provide that prison work is not to be undertaken in a manner that would create unfair competition.  However, she states that such rules are often flouted, and that the federal government has outsourced policing of such laws to an industry group.  She in effect asserts that the chickens are guarding the hen-house.  The author throughout depicts the prison labor industry in such negative terms. Her most acid commentary addresses the industry’s cynical attempt to depict American prisoner labor as part of the “reshoring” of manufacturing and as a part of the “Made in the USA” movement.

            Cao does not discuss at length the role of workers’ compensation, but if inmates are considered neither employees of the prison or of the contracting for-profit company for which they labor, they are not going to have FLSA, unemployment, or workers’ compensation protections.  She does quotes one entrepreneur as indicating that he prefers prison work for his company because he avoids the burdens of such benefit costs. (Ironically, some employers also like inmates as workers because their absenteeism is lower.)  She also identifies California as a state where an inmate can receive workers’ compensation, but only upon release from confinement.  Notably, though not mentioned by Cao, the federal government, at 18 U.S.C. § 4126, maintains the Inmate Accident Compensation System, characterized as “the equivalent of a prison inmate’s workers’ compensation program,” which is “the exclusive means of recovery against the Government for a federal prisoner’s work-related injuries, and bars suits for damages for such injuries” under the Federal Tort Claims Act.

            In Pennsylvania (my state), WCJ and Board decisions exist where prisoner attempts at securing workers’ compensation have been rejected. The leading case is by Judge Bruce Doman (Allentown), who rejected the proposition that a prisoner could be conceived of as providing services to another for a valuable consideration. See Paar v. State Correctional Institute (May 28, 1993), filed May 28, 1993 (Doman, WCJ) (“‘Work’ in the claimant’s prison environment is a rehabilitation tool for the claimant’s benefit, rather than a service for the employer. Volunteering for work in a prison cannot be equated with voluntary acceptance of employment for a free citizen, because the inmate’s alternatives are limited…. The Act was first passed in 1915. In the 78 years since, no case has reported an award of Workmen’s Compensation to an inmate and for good reason. A duly sentenced inmate cannot be considered to be an employee of the institution that confines him. Employment and imprisonment may share some characteristics, but they are plainly not the same.”).    

            Professor Cao, of course, knows all about this type of reasoning but asserts that such analysis should not be valid when taking into account the for-profit motives of the prison labor industry.  

            In any event, if limited, or absent, state workers’ compensation remedies exist, what of tort law?  One scholar has argued that the Eighth Amendment, which proscribes “cruel and unusual punishments,” should be applied to prisoners injured while laboring at their jobs in prison industries. She argues, specifically, that such prisoners should be deemed to have claims based on this proviso when they suffer their injuries on machinery that prison officials know is defective, malfunctioning, and dangerous. In addition to her constitutional analysis, she summarizes briefly the various state workers’ compensation laws as they address the compensability of prisoner injuries. The variety of approaches is indeed quite remarkable. She finds them too scattered and ineffective to cause prison officials to be leveraged to safe workplace practices. In her view, only by way of threat of a viable constitutional claim can this purpose be fulfilled. Dougherty, The Cruel and Unusual Irony of Prisoner Work Related Injuries in the United States, 10 University of Pennsylvania Journal of Business & Employment Law 483 (Winter 2008).

            In crafting her legal argument about the FLSA, Cao sets forth one admonition at the outset: any right under the law must be based on that law and not under constitutional precepts. In this regard, it is sometimes forgotten that the Thirteenth Amendment does not proscribe slavery as to convicted prisoners. It states, “[n]either slavery nor involuntary servitude, except as punishment for crime whereof the party has been duly convicted, shall exist in the United States, or any place subject to their jurisdiction.”

Pennsylvania Judge Cohn Jubelirer Writes on Appellate Judging, Pennsylvania's Commonwealth Court, and Workers' Compensation Appeals

            Commonwealth Court (Pennsylvania) Judge Renee Cohn Jubelirer, in a new law review article, posits that her court’s codified Internal Operating Procedures, norms, and traditions, all contribute to an effectively-operating court where communication makes for better decision-making and lack of personal tensions among the judges.  The judge’s article is a rare offering: a longstanding sitting judge’s sometimes behind-the-scenes account of how a court operates.  See Renee Cohn Jubelirer, Communicating Disagreement Behind the Bench: The Importance of Rules and Norms of an Appellate Court, 82 Journal of Law & Contemporary Problems 103 (2019). 

            Commonwealth Court is the unique Pennsylvania appeals court that takes appeals from agencies, like the Workers' Compensation Office of Adjudication, and trial courts, outside of criminal cases, when the Commonwealth or some other governmental agency has been a party.

            As a prelude to her must-read discussion about the Commonwealth Court, the judge discusses several aspects of the nature of appellate decision-making. She sets forth, for example, what perhaps we all know intuitively: the idea of having a multiple-member court, on appeal, is basically that two (or more) heads are better than one: “The appellate design assumes that judges working together will communicate and consider different points of view, which increases the probability of reaching a better decision than would a single judge.”  The design is “‘specifically structured to promote a collaborative form of decision making," which presumably improves the quality of accurate decisions, free of bias, and consistent with precedent.  

            And, indeed, as the judge shows us, a significant literature, mainly centered on the federal courts, has addressed the behavior of appellate judges, seeking to ascertain whether this assumption works in the trenches. Judge Richard Posner, for example, has remarked on such issues in his book How Judges Think (2008). Apparently not everyone accepts the common wisdom that multi-member appellate courts will necessarily engage in constructive, collaborative decision-making.    

            Judge Cohn Jubelirer is at odds with such naysayers, and believes that Commonwealth Court, for its part, achieves the related goals of collegiality and collaboration.

           The judge’s review of her own court commences with a brief history of that body, a note on its unique original jurisdiction, and a review of the Internal Operating Procedures and other rules that guide how the panels receive their assignments, vote, and, if necessary, conference on disputed issues. The judge insists that the court’s (1) tradition of placing a premium on collegiality and, famously, (2) policy of having all members vote on every case, leads to a minimum of unnecessary friction, avoids gratuitous (my word) dissents, and helps to ensure consistency of the law. On this latter point, Commonwealth Court has a goal of “polic[ing] itself to maintain consistency of precedent and development of the law….”

            The judge’s discussion of “Judicial Conference,” convened on cases where significant disagreement exists, will perhaps be the most revealing for most readers. When this writer was a clerk at the court, first for Judge Craig and then for Judge Barry, we were not allowed into such sessions:

***

            A central feature of the deliberative process is our judicial conference. If four judges disagree with the majority opinion, the opinion cannot be filed, and the matter is sent to judicial conference, where all the judges gather and discuss those cases. Judicial conferences are held in person nine times a year during argument sessions…. At conference, the judge who wrote the majority opinion speaks first and explains why the majority opinion is correct on the facts and the law. The other judges can, and do, ask questions about the factual record, the parties' arguments, legal precedent, and reasoning. Then, if there is a dissent, the dissenting author explains why that opinion is correct, and, again, the judges can, and do, ask questions. If there was no dissenting opinion, the objecting judges explain their objections. There is a discussion during which any judge can speak without regard to seniority as many times as needed. At the end of the discussion, the president judge holds a vote, with the newest judge voting first…

***

           Many perhaps knew of this process. The judge further shares with us, however, that Judicial Conference can become fairly animated:

***

All the judges prepare for judicial conference, many as if for oral argument. Some judges strategize in their preparation. Prior to conference, a majority writer may think long and hard about whether to withdraw the opinion and rewrite when five or more judges voted in opposition to the majority opinion. The judges [who I interviewed] all felt that the effort costs are worth the benefits of conference…. There is an expectation that disagreements will be honestly aired at a conference that is “always heated and wonderful,” where the judges “really care and battle it out.” ….

***

            And the Conference has objectively proven successful: “Minds are changed when knowledgeable judges participate in discussion, even though they were not on the panel. Because everyone participates, and has at different times been a majority writer as well as an objector or dissenter, it is not personal…. . Judges listen to their colleagues and may change their minds.”

            In a special insight, Judge Cohn Jubelirer notes, “Conference gives all the judges a voice in the decision, so everyone can be heard and then accept the decision. There is a sense that if some judges did not have input into the precedent, they might try to diminish it by distinguishing it in subsequent opinions.”

            Cohn Jubelirer completes her analysis with a nod towards empiricism. She seeks to determine, for the 304 workers’ compensation appeals adjudicated in the year 2007, whether the make-up of the various panels (on the criteria of political affiliation) yielded any meaningful difference in whether employer or injured worker prevailed. Though acknowledging that the data set she is using is small, she discerns, in the end, no bias. The welcome results of her study, she states, “support that there are no real panel composition effects based on political party.”

            With some luck, that is the result, in material part, of the judges effectively collaborating and seeking, wherever possible, a reasonable and accurate consensus.      

New Novel by Andrew Miller, "Now We Shall be Entirely Free," Animated by Brutal Child Labor of Early 19th Century England

            The first phase of the industrial revolution unfolded in England during the late eighteenth and early nineteenth centuries.  The early cotton mills of that period were known for being sweatshops and dangerous to life and limb.  They were typically manned by women and children, the latter often working in brutal, virtually slave-like conditions. These were the types of environments, of course, that inspired Dickens as he wrote Oliver Twist and David Copperfield. 

            Notably, before workers and reformers ever lobbied for safety, for changes to tort law, and then for workers’ compensation, they argued for restrictions on such labor.                    

            This environment comes alive, if only briefly, in a new historical novel by British author Andrew Miller.  In Now We Shall be Entirely Free (Europa Editions 2019), the protagonist is a young army officer (Lacroix) who has fought against Napoleon in the British effort to ally with Spain in trying to repel (unsuccessfully) the French invasion.  Unfortunately, the British are routed at the Battle of Corunna (1809) and, during the retreat, LaCroix is put in charge of a group of stragglers, wounded, and ne’er-do-wells.  Mentally and physically overwhelmed, in the end he is unable to prevent his soldiers from committing atrocities against Spanish villagers. 

            Back in England, Lacroix seeks to find himself, journeying to rural Scotland, but he is pursued by a pair of assassins charged by both the British and Spanish to exact revenge for the massacre. 

            As it turns out, the lead assassin, a British corporal, is a sociopath who developed his violent instincts while working in an early cotton mill, brought in from London as an orphan boy to undertake forced labor.  Calley (yes, that’s his name) relates that unforgiving work – fourteen-hour days – to his colleague as they traverse the English countryside in pursuit of Lacroix. 

            For a boy, Calley relates, to fall asleep in the final hours of the day, brought beatings “without pause” from the overseers, but this punishment was not as hazardous as the unshielded moving machinery: “There was a girl called Lizzie ….  She had ginger hair for a start.  Anyway, the dozy cow slipped when she was under the machine and the belt caught her hand and took off her arm at the shoulder.  She was nine….  She lived.  They gave her a job running messages, one arm being enough to carry a piece of paper with.” 

            The brutality of the cotton mill, particularly in the punishment of young girls, is to have a direct effect in the Spanish atrocity.

            Andrews has the special skills of creating atmosphere and making the reader care about his characters.  The fan of historical fiction will be engrossed by this dark, unusual account of human suffering in the early days of the industrial revolution.   

New Labor History by Greenhouse is a Tour de Force, Recommended for Teachers and Students Alike

            Journalist Steven Greenhouse’s new book is a tour de force history of the labor movement, particularly as it has unfolded since the New Deal.  See Beaten Down, Worked Up: The Past, Present, and Future of American Labor (Penguin/Random House 2019).

            And the book is, indeed, a history of labor and not simply of unions. The author, in this regard, treats the remarkable phenomena of fast-food workers campaigning for equitable pay in the “Fight for $15” movement and immigrant tomato harvesters fighting for humane working conditions in Florida. These are workers who were not, and are not likely to be, laboring under the auspices of a collective bargaining agreement. The same can be said of the Amazon and Wal-Mart workers he discusses, who have connected via Facebook and other Internet vehicles to work towards better pay and working conditions.

            While this new book discusses all aspects of labor, front and center is the unavoidable account of the decline of union power and influence. Greenhouse, in this regard, sets forth the familiar, shocking statistics: only 6.4% of workers in the private sector enjoy union protection, with only 10.5% of the workforce, overall, unionized. He explains the many reasons for this phenomenon, which in fact seems to have been a long time coming, ever since the Taft-Hartley Act made it harder for workers to unionize. More recent developments are the changing nature of employment and industry, labor’s own bad image, the remorseless efforts of corporations to fight unionization, and the Citizens’ United effect of allowing millions of business-interest dollars into political campaigns.  

            For those sympathetic to labor, the Greenhouse book is a grim read. On hopeful notes, he identifies recent successes, such as the remarkable influence of Culinary Workers’ #226 in Las Vegas, which brought collective bargaining to most of the resort casinos; and the rebellion of underpaid public-school teachers in West Virginia and Oklahoma, where even Trump-supporting educators joined with their union colleagues and successfully demanded fairer treatment. Still, Greenhouse asserts that major changes in the National Labor Relations Act, and in how unions imagine and run themselves, will be required before most workers gain true voice and are treated and paid fairly.        

            The issues of workplace safety, and compensation for the same, are part of the story, if only on the periphery. In the present day, he observes, employment sites where worker representation is absent often feature significant hazards to health (he sets forth, among others, an utterly plausible account of a dangerous recycling plant). Meanwhile, gig labor platforms like Uber establish their workers as independent contractors, often disavowing responsibility for safety and compensation. And, in a return to the roots of the modern labor movement, the author sets forth a portrait of the redoubtable Frances Perkins, who was animated by the Triangle Shirtwaist Factory fire to devote her career to workplace safety, workers’ compensation, and other forms of social insurance.

            An account new to this writer: Martin Luther King, Jr. was famously (and fatefully), in Memphis in 1968 in support of the momentous sanitation workers’ strike. An unhappy situation had long been simmering, but the workers became truly disaffected, prompting, in part, the strike, when two of their colleagues died in a mishap caused by chronically malfunctioning vehicles. According to Greenhouse, “neither Cole nor Walker had workers’ compensation coverage because of a loophole in the law. That meant no death benefits for their families. Nor were Cole and Walker able to afford the life insurance the city offered. The families were left in penury, receiving just one month’s salary and a special $500 special payment – not even enough to cover burial expenses….”   

            Greenhouse, with his top-notch new book, is treating issues that have been in the headlines the last few decades. The attentive reader will find his topics familiar. However, the author skillfully brings the whole story together, fills in gaps in one’s knowledge, and offers recommendations for what he asserts is much-needed change. This writer wasted not a moment in reading this epic treatment of labor in the present day and recent past.