Saturday, March 28, 2020
I have recently been working on a law review article about work stoppages and strikes in the “new” economy. Some readers may not be aware that Section 7 of the National Labor Relations Act protects the right of both union and non-union employees to engage in concerted activities for their “mutual aid or protection.” The lead case involving non-union employee protection, Labor Board v. Washington Aluminum Co., concerned employees who walked off the job claiming their workplace was too cold (the facts arose in wintertime Baltimore). The employer fired the employees for striking, but the U.S. Supreme Court ordered the employees reinstated. While the employer could lawfully have “replaced” the employees during the walk-off, it could not lawfully fire them.
With increasing reports of strikes, see here, here, and here, generated when employers order employees to work amid real or imagined Covid-19 fears, the principles of Washington Aluminum are likely to become highly relevant. One of those principles is that fear of dangerous working conditions does not have to be “reasonable” for concerted work stoppages prompted by it to enjoy protection; the fear just has to be held in “good faith.” I’ve written a short piece on Washington Aluminum principles that is available here.
One complication in this area involves work disputes between companies and their putative independent contractors. Independent contractors who strike arguably violate antitrust law as a “conspiracy in restraint of trade.” As Professor Sanjukta Paul of Wayne State University Law School has observed, the threat of FTC prosecution of antitrust law violations committed by independent contractor-workers is real (it has been deployed, for example, against workers in the deregulated trucking industry). This is a very complicated area of law likely to cause great confusion. For example, I read today about a threatened strike by Instacart workers scheduled for this Monday (3/30/20) over hazard pay and safety gear. It would not surprise me to see FTC activity should that type of protest activity become widespread and I am quite concerned about the potentially severe liability relatively unsophisticated workers might be walking into. (I agree with what I understand Professor Paul to be arguing – it is high time that we reassess, once again, the relationship between antitrust and labor law. Do we really want to punish peaceful labor activity?)
Workers’ compensation is implicated in this maelstrom. Some front line employees are clearly signaling to their employers that they believe Covid-19 has rendered their workplaces ultrahazardous. If subsequent expert opinion and adjudication agrees with employees’ assessments, will employers forcing employees to work have engaged in “intentional” or “serious and willful” misconduct opening themselves up to payment of enhanced workers' compensation benefits or tort in the event of Covid-19 illness found to be work-related? One wonders if this complicated liability picture—in addition to “bubbling” wildcat strikes—was behind the decision of the Big 3 auto manufacturers to temporarily scale back auto production until March 30.
Michael C. Duff
Thursday, March 26, 2020
According to the New York Times, platform companies continue to battle AB-5 in California, “investing tens of millions of dollars in a November ballot initiative that would effectively exempt them from it . . . “[and as] the companies’ legal challenges play out, the state is failing to approve many unemployment claims from drivers, potentially leaving thousands in the lurch as their earning power collapses.”
Similar scenes are playing out in New York where it has already been determined in prior rulings “that three Uber drivers were eligible for unemployment benefits, along with all ‘similarly situated’ drivers.” Dara Khosrowshahi, CEO of Uber, of course, regrets all of this, saying that the “situation certainly demonstrates the downside of attaching basic protections to W-2 employment,” and in a letter to the president “asked that any economic stimulus or coronavirus-related legislation provide “protections and benefits for independent workers,” along with “the opportunity to legally provide them with a real safety net going forward.” The hubris and irony are breathtaking, and the line I’ve set in bold reflects the disaster capitalism/shock doctrine “way”: Use the disaster to push for (in this case) “portable benefits,” a boondoggle likely to be of epic proportions.
Fortunately, Shannon Liss-Riordan, the notable scourge of platform companies’ backflipping tactics, will have none of it, and has already filed complaints seeking to force the companies to follow the state’s new law immediately, giving drivers access to unemployment benefits and sick days. As she put it, “It is very unfortunate that such a crisis may be necessary to prompt these companies into actually complying with the law and extending employment protections to their drivers.” The moral of the story may be that crises can work in more than one direction. If a company seizes on a disaster to push its agenda before the tactical ground has been properly prepared, it may provoke a response it did not anticipate. At the moment, at least, failure to comply with AB-5 makes you a lawbreaker (though the scofflaws would like you to forget it). And, if Liss-Riordan obtains a declaratory judgment and injunction quickly, the offending companies may swiftly find themselves on the precipice of being in contempt of court.
Look closely for other disaster maneuvers. Folks have asked me over the years why I’m so focused on workers’ compensation opt-out and mushrooming application of compulsory arbitration across legal regimes. It’s because this formerly-blue-collar professor knows how the game is played and who is playing it. Opt-out is a shock doctrine maneuver: the economy gets really bad, really fast (the Black Swan) and "players" start making arguments for dismantling liability. All you need is a social bankruptcy blueprint (and, as this bankruptcy teacher well knows, such blueprints are amazingly political). Once we've determined that you are a "secured" creditor and the other fellow isn't, the rest is easy. And rust never sleeps--those unsuccessfully seeking special treatment in the past will be back.
Along these lines, consider that in the new stimulus bill Gig workers’ unemployment relief appears to have been included. While this is an outcome I applaud (for the sake of workers), consider that companies that have never contributed a dime to the unemployment funds are, in effect, being publicly subsidized at a higher rate than those that did. Socialize risk. Privatize benefits. Just imagine if Uber was the last entity standing.
Michael C. Duff
Tuesday, March 24, 2020
I have great concern that the end of the pandemic will be rife with confusing politics. No sitting president wants a paralyzed economy leading into the election for a second term. Furthermore, that president's adversaries may be seen as having a motive for over sensationalizing the scope and depth of the emergency for political purposes (such thoughts would not be thought in normal times, but these are not normal times). As usual, workers are caught in the middle.
Potential problematic scenarios will abound. Suppose the economy is "re-opened" but employees have doubts about whether it is in fact safe to return. Or suppose the employee does in fact return and becomes sickened by coronavirus. The traditional increased-risk causation analysis would hold that coverage is not established unless the risk of obtaining the illness in the workplace exceeds the background risk of the general public (or something to that effect depending on the law of a particular state). There has been a good deal of discussion as to whether increased risk jurisdictions and/or insurance carriers should simply relax causation standards in these situations in favor of coverage where causation is at least arguable. (See here behind paywall).
Or suppose the employee can establish that the virus was contracted on the way to (or returning from) work. Normally we would say the resulting illness was not compensable by operation of the going and coming rule. But in a positional risk jurisdiction, or in an increased risk jurisdiction possessing something like the street risk rule, the situation is likely to become more complicated. In this regard, I was struck this morning by a FECA (the workers' compensation-type statute covering federal employees) memo written by the Department of Labor in connection with the garden-variety flu (I'm not sure when it was written/updated). While making clear that the flu is not automatically covered and that work causation must be established (FECA operates mainly under positional risk principles), the memo went on to state: "In the event of a pandemic situation where only certain essential personnel are required to come to work, it is conceivable that an employee's circumstances could be considered a special mission, thus bringing them under the coverage of the Act during their commute to and from the office." (The DOL has written another memo specifically addressing COVID-19 -- that memo does not seem to include the special mission language and suggests an increased risk requirement for COVID-19 coverage).
This all makes me think of dangerous return to work scenarios. I anticipate claimants compelled to return to work may be arguing for some time that their commutes are "special missions" because the commute is not normal and exposes them to risks in excess of those to which the general public is exposed (especially in the context of scenarios in which there are societal disputes about whether continued quarantine is warranted). In general, a special mission is defined as a situation in which an employee takes an off-premises trip that would normally be outside the course of employment. Then the trip may be brought within the course of employment for any number of reasons including (for purposes of this discussion) a special inconvenience or hazard exceeding a normal commute.
One should also bear in mind that on some accounts the flu epidemic of 1918 did not really end until 1920.
Michael C. Duff
Saturday, March 21, 2020
Damon Silvers, my classmate at the Harvard Law School a long time ago (we were 1Ls in 1992), and now Special Counsel to the AFL-CIO and professor, has a thought provoking piece up on the UCL Institute for Innovation and Public Purpose blog (via the Medium). Here is an excerpt:
In the United States, platform workers are generally not eligible for unemployment insurance. And so, what the coronavirus pandemic exposes is that: rather than gig economy jobs feeling modern, these workers are much more like dock workers or a farm labourer in the 19th century, if they are too sick to work, they don’t get paid.
Perhaps nothing is more telling in this regard than the contrast between how Uber is treating workers they admit are their employees and how they are treating their drivers. Uber employees have paid sick days and are being told to work from home. While, drivers are offered unspecified financial support if they are actually sick but are clearly expected to keep driving until they get sick.
Throughout the San Francisco Bay, the centre of the greatest accumulation of technology-related wealth and expertise in the history of the world, hundreds of thousands of people are suddenly living in a kind of Dickensian fear, the fear of no work and nothing to fall back on as the economy contracts around them.
Last week, as it became clear that we were not going to contain the coronavirus in a handful of locations in the United States, something else became clear as well. That we had designed our economy, or had allowed it to be designed, as a kind of ideal incubator of an epidemic. Because we are an economy whose health insurance systems have all been redesigned to make sure the patient pays first dollar. In our privatised health care system most health insurance plans, including those offered through the Affordable Care Act (“Obamacare”) require workers to pay an amount in health care costs before the insurance coverage begins (“deductibles”) and to pay some of the cost of each health care treatment (“co-pays”). And we are an economy where a sizable percentage of the workforce doesn’t have paid sick days. So, millions are seriously incentivised not to seek medical treatment when they are not feeling well, and to go to work sick as long as they can.
The rest of the piece us here.
I think it is fair to say that Damon and I share many views on the problems besetting the modern economy. But I also think we have some profound differences as to the solutions to those problems. But that is a long conversation for another time. It is perhaps enough to say that I have limited confidence in the long term viability of world super-states. I think something else is coming.
Michael C. Duff
Thursday, March 19, 2020
Stephen A. Woodbury, senior economist at the W.E. Upjohn Institute for Employment Research, has posted a very encouraging short post on possible relief for Gig workers:
Disaster Unemployment Assistance would make these self-employed workers, contract workers, and gig workers eligible to receive UI benefits. It is almost certainly the most effective fiscal policy tool available to the federal government to quickly blunt the economic damage resulting from the COVID-19 pandemic.
DUA is normally paid to workers who lose their jobs, but do not qualify for regular UI benefits, following natural disasters such as hurricanes, floods, tornadoes, and geological disasters like earthquakes and volcanic eruptions. The program is initiated by a Presidential disaster declaration and administered by the state UI agencies, which in turn are overseen by the U.S. Department of Labor.
DUA requires no new congressional legislation—it is authorized by the Stafford Act of 1988—and the administrative structure needed to make it run already exists. Because DUA is funded by the Federal Emergency Management Agency, it side-steps the eligibility problem faced by self-employed workers under the regular state UI program.
Michael C. Duff
From the New York Times:
The coronavirus pandemic is exposing the fragile situations of gig economy workers — the Uber and Lyft drivers, food-delivery couriers and TaskRabbit furniture builders who are behind the convenience-as-a-service apps that are now part of everyday life. Classified as freelancers and not full-time employees, these workers have few protections like guaranteed wages, sick pay and health care, which are benefits that are critical in a crisis.
While gig economy companies like Uber and DoorDash have promoted themselves as providing flexible work that can be lifelines to workers during economic downturns, interviews with 20 ride-hailing drivers and food delivery couriers in Europe and the United States over the past week showed that the services have been anything but that.
Instead, as the fallout from the coronavirus spreads, gig workers’ earnings have plummeted and many have become disgruntled about their lack of health care. Many others are also feeling economic pain from the outbreak — layoffs have hit workers in retailing, airlines, hotels, restaurants and gyms — but even as public health agencies have recommended social isolation to insulate people from the virus, gig workers must continue interacting with others to pay their bills.
And buried in another Times article about qualifying for unemployment benefits:
Gig workers are also unlikely to qualify because they’re largely considered self-employed. But certain self-employed people may end up being eligible for a refundable tax credit, depending on what lawmakers in Washington decide to do.
I think we’re about to get a crash course on just how big the Gig economy is and on some deeper implications of a no-employee world. I hope that solutions forged in the current disaster capitalism won't permanently sacrifice employee status for millions as the quid pro quo for affording critical, but in the end, temporary benefits.
Michael C. Duff
Wednesday, March 18, 2020
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
Sunday, March 15, 2020
Last month, DoorDash made news when thousands of the company’s worker-“Dashers” decided to pursue misclassification claims in arbitration, one-by-one, a concept known as “swarming.” (Companies appear to be popping up to assist plaintiffs’ counsel in setting up swarming practices). This maneuver apparently so overwhelmed the “platform”-- after all, most of these cases are supposed to just go away when claimants become disheartened by being forced into arbitration -- that when the Dashers put up their 1.2 million dollars in filing fees, for arbitration of 6,000 individual claims, management blanched at the prospect of plunking down its 11 million dollar share of filing fees under the arbitration agreement. Eventually the delay forced AAA—the “chosen” arbitration outfit—to cancel the arbitrations. Amusingly, the Dashers then sued DoorDash in federal court to compel arbitration. (The hearing transcript in which DoorDash’s counsel was required to explain why arbitration should not be compelled—after no doubt having made the argument repeatedly in his career that low-wage workers’ arbitration agreements must be enforced—is a gem, and I recommend every word of it to you).
The gist of what seems to be going on in this new twist in the arbitration-shenanigans wars is that new methods of advocacy appear to be arising that may improve the odds of workers winning in arbitration. The plaintiffs’ counsel in the DoorDash arbitrations has suggested (see here at pages 17-18) that many of the 6000 cases are very strong. (Several look to me like they have problems, but most don’t). The Gibson Dunn firm (or, rather, its client DoorDash) was apparently in no position to individually arbitrate 6000 claims. At one point—again, somewhat amusingly—DoorDash suggested that the arbitrations be put on hold because of the pendency of a related court class-action suit. Got that—efficient arbitration should wait for inefficient class action litigation(!). Judge Alsup (District Court for the Northern District of California) was not pleased.
This all has me thinking about the arbitration of workers’ compensation cases. There is simply no question that employers could compel employees to arbitrate workers’ compensation claims if they wanted to do so. If anyone wants to call me on the phone and argue the point I’ll happily engage in a “live” debate (well, probably from home since I’m presently in a spring-break/virus “pause”). But read Kindred Nursing Centers first. The point I want to make is that at some juncture the efficiency of arbitration—even for those writing the rules—may break down. At some point, AAA fees may get so expensive that your transaction costs get out of whack, and your local workers’ compensation board looks like a pretty good deal. Furthermore, even if you win or achieve positive outcomes in most cases, you won’t win them all, and eventually the swarm may come to town.
Postmates finds itself in a similar bind. As reported in JD Supra, “Judge Saundra Brown Armstrong of the United States District Court in Oakland has refused to stay her order requiring Postmates to conduct more than 5,000 individual arbitrations, which Postmates argued would require it to pay more than $10 million just in arbitration filing fees.” One management-side firm estimates that fees for an individual arbitration are typically about $60,000. In my neighborhood, $60,000 x 5000 = $300,000,000. Think it will all settle?
I suppose I should also mention that DoorDash has decided not to retain AAA any longer and has enlisted a cheaper arbitration outfit. As explained in the American Prospect, “Now the International Institute for Conflict Prevention & Resolution, known as CPR, was the forum of choice. And the new forum was offering a whole new program: Plain-vanilla arbitration was available to the Dashers, as it always had been. But so was something called the “CPR Employment-Related Mass Claims Protocol.” Judge Alsup would really like you to know about it (see page 26 of the transcript). You really can’t make this stuff up. Well, you could, but it wouldn’t be as entertaining.
Michael C. Duff
Thursday, March 12, 2020
UPDATE: They've apparently heard the complaint, as reported in Business Insider.
Thought provoking piece in today’s The Guardian highlighting yet another dimension of the fissured workplace. If you are a “contract” worker, you might have to show up for work at the Google office during the Coronavirus. Say what?:
The day before, Google had asked all its North American employees to begin working from home due to the coronavirus – a policy that has since been expanded to the rest of its global workforce. But [Josh] Borden, a triage analyst who has worked for Google for about four years, is one of the approximately 135,000 people who make up Google’s “extended workforce”: temps and subcontractors who perform work for, but are not technically employed by, the $830bn company. And though Borden and his co-workers perform computer-based tasks that could just as easily be completed from home as those of other technical workers, Google does not allow them to access their work from home.
“The FTEs [full-time employees] almost all seem to be heeding the recommendation to work from home, while we are sitting here in the Petri dish, with the choice of not getting paid, or maybe getting sick and then putting our family and friends at risk too,” Borden said. “I’ve heard from multiple people that they feel like we’ve been forgotten and abandoned – and that our health and safety is clearly less important than the Googlers’.
“Our second-class status now has literal health implications,” he added.
If I were to turn this situation into a workers’ compensation law school essay question, I would expect some discussion of causation. The risk of contracting coronavirus might be viewed as neutral under general principles of workers’ compensation causation—neutral because the contract worker at the Google offices may have no greater risk of contracting the virus than a member of the general public. But the Petri dish analogy in the article excerpt is interesting. If the employer de facto constructs a Petri dish and then inserts (or allow to be inserted) contract employees into the dish, perhaps we shift back along towards the increased risk pole of the workers’ compensation causation continuum.
Indeed, I’m reminded of my law school days (c. 1993-1995), when I clerked for the Commonwealth of Massachusetts Department of Industrial Accidents Reviewing Board. During that stint, I became familiar with Section 28 of Chapter 152 of the Mass General Laws: “If the employee is injured by reason of the serious and willful [sic] misconduct of an employer or of any person regularly intrusted [sic] with and exercising the powers of superintendence, the amounts of compensation hereinafter provided shall be doubled.” I had a case one year involving an employer that repeatedly (and clearly knowingly) exposed its employee to mercury. Bad things happened to the employee. Section 28 was applied.
Of course, none of this matters if the worker is not an employee—he or she will not be covered by workers’ compensation. But, if you go sticking workers in Petri dishes, you might appreciate having recourse to the exclusive remedy rule.
Michael C. Duff
Tuesday, March 10, 2020
I was quoted the other day in Bloomberg News on the subject of “portable benefits”—benefits paid to “gig workers” in lieu of “real benefits” because, well, it’s better than nothing. It may not surprise you to learn that, contrary to the positive tone of the article, I said I thought the entire idea smacked of statutory evasion and obfuscation. The trade of well-defined statutory benefit coverage for portable benefits is no grand bargain—and how many grand bargains do we have to have? Heck one of the ones this audience is familiar with has probably been inadequate for years. You want to bargain to a point below that?
The argument that is supposed to cause me to accept in principle the desirability of portable benefits consists essentially of the following steps:
- A new type of work has surfaced that is fundamentally different from all work that has heretofore existed – gig work.
- Because gig work is so different, workers who perform it are unclassifiable as “employees” or “independent contractors” or, in any event, are not classifiable as “employees.”
- Because gig workers are not employees, they are not entitled to employee benefits.
- Because gig workers are not entitled to employee benefits, we must invent new types of benefits that the gig workers can carry around with them from gig to gig.
Of course, I reject the very first premise upon which the three that follow depend. I invite those thinking about these issues to closely scrutinize the nature of the so-called gig work. If it looks like the workers are taxi drivers, it is probably because they are taxi drivers. If those workers delivering your food look like delivery people ultimately under the control of the “platform” for whom they are delivering, that is probably because they are. Compel discussants to explain, in excruciating detail, the nature of the “new” work (that has never before existed in the history of humanity and which is apparently under no one’s control but the poor schmuck who is in physical motion) and then ask yourself why that work can’t be subject to a straightforward control test. Or at least ask yourself why the IRS (despite all protestations) will continue to use its 20-factor control test, thank you very much. I’ll bet you already know why.
Did the world of work change much between 1911 (when we instituted workers’ compensation systems) and, say, the first ten years of the 21st century, when the gig economy magically arose? Of course it did, but we still found it possible to classify most of that century of work as “employment.” My brother-in-law once was a bona fide “coder” who worked for companies where he was very clearly “gigging.” (He has for the last few years very clearly been a managerial employee). As an experiment, I used to subject his description of his duties to the traditional, 10-factor test. He came out an independent contractor every time because he was one. So, no, I don’t blindly accept tautological notions that a gig worker is a gig worker. I think almost all of it is a scam perpetrated by deadbeats. I simply don’t believe we even have a clear idea of a gig worker. Harsh? You bet.
Now some might say – so what? If you can put a buck of benefits in a worker’s hand right now that buck is worth more than the two bucks staying in the bush while this battle is fought out repeatedly in litigation. It’s bread and butter. I suppose that if I’m robbed I’d rather get half my money back than none. (A 2018 Edison Marketplace research poll showed that workers whom the publication defined as being “Gig workers” were off the charts in terms of economic anxiety). The answer to this objection, of course, is that public policy does not deal solely with a current rash of theft but also with underlying processes of thievery. Temporary relief from theft can be pretty unsatisfying, and seems at odds with the whole idea of a stable safety net. (Remember that phrase?)
Still, I suppose I could play along. Please tell me—with precision—the value of benefits that will be provided by statute to this unfortunate twilight group (soon the majority of workers?) We can't presently provide substantial benefits, lament the Gig companies. That, in itself, would prompt litigation because we would look like employers. Then, I answer, how are we supposed to have this conversation? You want to create the twilight category first on the representation, ipse dixit, that protection from litigation will lead to comparable benefits? Sorry, that's not a negotiation, it's -- a romantic song? Also assure me that states’ attempts to provide portable benefits in excess of some future federal model will not be preempted by substantively empty federal law. (You know that grift). Tell me that a mechanism will be provided allowing workers wrongfully deprived of their defined statutory benefit to recover any shortfall (and it would be nice if the mechanism included allowance for funded attorney representation). And, while you are at it, tell me how benefits for work injuries could even fit into the model since, as we all know, litigation on causation and extent of incapacity—among other things—is part and parcel of workers’ compensation reality. Tell me, more broadly, how any benefit requiring regular adjudicated entitlement will be determined in this brave new world of portability. I’ll wait.
Michael C. Duff
Saturday, March 7, 2020
A bill has been proposed in the Wyoming Senate that would provide first responders with workplace mental injury coverage. I support the bill, but it does seem at least problematic on “special laws” grounds. As Professor Justin Long at Wayne State has written:
Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general laws” that would apply equally to all members of the regulated class.
Readers may recall that the Oklahoma opt-out law was struck as unconstitutional on special laws grounds (and no others).
In Wyoming special laws are unconstitutional under Article 3, Section 27 of the State constitution. Board of County Commissioners v. Geringer, 941 P.2d 742, 748 (Wyo.1997). “We also know that ‘[a]ll laws of a general nature shall have a uniform operation.’. . . This rule demands that these statutes be applied uniformly throughout the state, * * *.”
The reason the special laws issue occurs to me is that under the proposed Wyoming law there would be an unusual tripartite legal structure applicable to so-called “mental-mental” workplace injuries (mental disability produced by strictly mental workplace stimuli). The default rule under §27-14-102(xi)(J) is that mental-mental injuries are excluded from coverage. But because of the categorical workers’ compensation exclusion of such injuries, and in light of the Wyoming’s constitutionalization of the workers’ compensation quid pro quo (Art. 10, Sec. 4 of the Wyoming constitution), those suffering from mental injuries tortiously inflicted by an employer are not bound by the exclusive remedy rule. Collins v COP Wyoming, 366 P.3d 521 (Wyo. 2016). If the new PTSD bill is enacted, first responders may be entitled to coverage for “mental-mental” workplace injuries. Under the text of the bill, a covered injury does not include:
(J) Any mental injury unless it is:
(I) Caused by a compensable physical injury, it occurs subsequent to or simultaneously with, the physical injury and it is established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist, or licensed clinical psychologist or psychiatric mental health nurse practitioner meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. In no event shall benefits for a compensable mental injury under this subdivision be paid for more than six (6) months after an injured employee's physical injury has healed to the point that it is not reasonably expected to substantially improve;. or
(II) Experienced by a first responder and established by clear and convincing evidence, which shall include a diagnosis by a licensed psychiatrist, licensed clinical psychologist or psychiatric mental health nurse practitioner meeting criteria established in the most recent edition of the diagnostic and statistical manual of mental disorders published by the American Psychiatric Association. The mental injury shall not be considered a compensable injury if the mental injury is directly attributed to disciplinary action, work evaluation, job transfer, layoff, demotion, termination or similar action taken by an employer . . . (Emphases supplied)
Thus, three different categories of claimants would be established under this statutory structure. Those who are first responders (potentially covered by workers’ compensation), those who are not first responders, but who are negligently injured (potentially covered in tort), and those who are neither first responders nor negligently injured (no recovery under workers’ compensation or tort).
This structure jars me. It may be rational, but it seems at a minimum to require transparent justification. Although I have not done a close study of how many states have attempted to implement PTSD coverage in this fashion, I think that moving from categorical mental-mental exclusion to coverage of PTSD for first responders (only) is a more difficult road for a legislature than moving from law that already provides general mental injury coverage for all claimants (even if subject to strict causation requirements) to PTSD coverage for first responders. In the latter types of jurisdictions, the primary legal obstacle may be how to deal with PTSD as a potential gradual injury where the statute in question requires “accidents.”
Michael C. Duff
Thursday, March 5, 2020
Was Worker Safety Advocate Pressured by ABA to Withdraw from Conference Panel After Releasing Report Critical of Amazon?
The story, authored by Eli Rosenberg, ran in yesterday's Washington Post:
A workers advocate faced pressure to withdraw from an American Bar Association conference panel on worker safety in the weeks after she helped author a report critical of Amazon, a sponsor of the conference, according to emails obtained by The Washington Post.
Debbie Berkowitz, a former federal regulator who now works for the National Employment Law Project, received an email in early December from Jonathan D. Karmel, a labor lawyer who is co-chair of the ABA’s Occupational Safety and Health Law Committee, asking whether she would serve on the panel to balance the views of another speaker, Heather MacDougall, who is Amazon’s vice president of worldwide employee health and safety. Berkowitz was listed on a draft of panelists, and she was told the ABA could pay for her hotel.
Within a few weeks, she learned her appearance was drawing opposition from others involved in the conference. In an interview, Berkowitz said Karmel told her that one of his co-chairs was concerned her appearance could upset Amazon. The emails obtained by The Post identify the objecting co-chair as Steven R. McCown, a corporate lawyer. The emails show that organizers were discussing whether they should run concerns about Berkowitz by MacDougall.
Facing McCown’s opposition, Berkowitz was asked whether she wanted to switch panels, and she declined. Feeling she was under pressure, Berkowitz withdrew altogether, she said.
The rest of the story is here.
As someone who is perpetually and reflexively hostile to Amazon (and to anyone else I believe intends to harm workers as a matter of course), I would count it as a badge of honor to be disinvited to corporate programs masquerading as open discussion. I'm scheduled to appear at an ABA workers' compensation event in New Orleans at the end of this month. I doubt that I'm important enough to generate opposition from powerful interests, but perhaps I should have considered refundable tickets since I have a habit of speaking my mind.
Michael C. Duff