Wednesday, March 18, 2020

COVID-19 and Labor and Employment Law Production in Times of Historical Emergency

One of the difficulties I have teaching “younger” students about workers’ compensation (and other bodies of labor and employment law) is that the rationales for the law have often arisen from extraordinary historical times not remotely similar to any they have experienced. The COVID-19 tsunami may have instantly provided them with a comparable context of historical emergency.

Workers’ Compensation arose during an historical period in which the rate of accidents was almost unbelievably high. According to John Fabian Witt, a leading historian of workers’ compensation history (and pre-history),

By one contemporary estimate, no fewer than 42 percent of railroad workers involved in the day-to-day operation of trains in the state of Colorado were injured on the job each year . . .  The most extraordinary rates of death and injury appear to have occurred in the anthracite coal mines of eastern Pennsylvania during the 1850s and 1860s, where each year 6 percent of the workforce was killed, 6 percent permanently crippled, and 6 percent seriously but temporarily disabled. But by some measures, accident rates in many industries had increased in the intervening half-century. Indeed, the year of the Jamestown Exposition was, according to a leading historian of mining safety, “the worst year in the history of industrial accidents.” Eighteen disasters, including an explosion in a West Virginia mine that December (which killed 361 miners), produced a total of 918 mining fatalities for the year. And by comparison to the early twenty-first century, accidental death rates for the population as a whole were astronomical. In 1900 the annual U.S. accidental-death rate of 1 in 1,000 was as great as that of the most dangerous occupations a century later. John Fabian Witt, The Accidental Republic at 3.

Witt has also explained that medical improvements spurred by the Civil War “helped prompt the development of modern organizational structures in hospitals and gave rise to the modern nursing profession.” The 1870s and 1880s also witnessed the widespread introduction of germ theory and antiseptic surgery into American hospitals, fundamentally transforming medicine and improving the survival rates for surgeries so dramatically that American industrial death rates pre and post-Civil War cannot be reliably compared. Injury survival changed at a systemic level the value of accident cases because the background rule had been that tort claims died with the victim. More survival meant more potential claims meant more eventual liability. (Witt, Accidental Republic at 25). When courts and legislatures latch on for dear life to the “exclusive remedy rule” they are echoing the magnitude of the prior historical urgency behind workers’ compensation law. It can all be difficult to explain to a young student who may never have worked and has had no personal connection to workplace injury. But that same student may now understand the idea of a national emergency.

Similarly, the teaching and learning of traditional (National Labor Relations Act) labor law cannot be accomplished in depth without possessing a background understanding of the stock market crash of 1929, mass unemployment, and the resulting desperate strikes and workplace organizing of the 1930s. Then, as one moves forward in time, traditional labor law cannot be understood without grasping the tremendous (nearly hysterical) premium placed on “industrial peace” during World War II. Strikes were virtually unthinkable. Thus, we continue to receive the echoes of the urgency of “industrial peace” in contemporary labor law cases, and that may feel to a young student to be oddly out of place. Now, if I say that “industrial strife” was once deemed a potential national emergency, my words may carry more meaning.

In short, extraordinary times produce new law—in labor and employment law as well as in other fields. This is remarkable in its own right, but it is also important to keep in mind that, the further we move out in time from the remarkable events and emergencies that jump-started particular laws (or even whole areas of law), the more difficult it can be to replicate the policy urgency that gave them birth. In short, statutes age. It will be for those of us living through these extraordinary times to provide context and explanation to future lawyers of the reasons for the law production that will now emerge as we attempt to struggle with unprecedented problems by deploying heretofore undreamed of solutions.

Michael C. Duff

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