Thursday, November 19, 2020

Covid Culture Wars and Workers – Stuck in the Middle Again

A frozen yogurt dealer in Durango, Colorado offered customers discounts for not wearing masks. Someone in town thereafter apparently got upset and busted out the dealer’s front window. He, in response, apparently affixed a sign to his establishment: “I shoot to kill.” As an aside, workers work in that shop.

According to the Iowa Capital Dispatch, “[a] wrongful death lawsuit [against Tyson Foods] tied to COVID-19 infections in a Waterloo pork processing plant alleges that during the initial stages the pandemic,”

  •  In mid-April, around the time Black Hawk County Sherriff Tony Thompson visited the plant and reported the working conditions there “shook [him] to the core,” plant manager Tom Hart organized a cash-buy-in, winner-take-all, betting pool for supervisors and managers to wager how many plant employees would test positive for COVID-19.
  • John Casey, an upper-level manager at the plant, is alleged to have explicitly directed supervisors to ignore symptoms of COVID-19, telling them to show up to work even if they were exhibiting symptoms of the virus. Casey reportedly referred to COVID-19 as the “glorified flu” and told workers not to worry about it because “it’s not a big deal” and “everyone is going to get it.” On one occasion, Casey intercepted a sick supervisor who was on his way to be tested and ordered him to get back to work, saying, “We all have symptoms — you have a job to do.” After one employee vomited on the production line, managers reportedly allowed the man to continue working and then return to work the next day.
  • In late March or early April, as the pandemic spread across Iowa, managers at the Waterloo plant reportedly began avoiding the plant floor for fear of contracting the virus. As a result, they increasingly delegated managerial authority and responsibilities to low-level supervisors who had no management training or experience. The supervisors did not require truck drivers and subcontractors to have their temperatures checked before entering the plant.
  • In March and April, plant supervisors falsely denied the existence of any confirmed cases or positive tests for COVID-19 within the plant, and allegedly told workers they had a responsibility to keep working to ensure Americans didn’t go hungry as the result of a shutdown.
  • Tyson paid out $500 “thank you bonuses” to employees who turned up for every scheduled shift for three months — a policy decision that allegedly incentivized sick workers to continue reporting for work.
  • Tyson executives allegedly lobbied Iowa Gov. Kim Reynolds for COVID-19 liability protections that would shield the company from lawsuits, and successfully lobbied the governor to declare that only the state government, not local governments, had the authority to close businesses in response to the pandemic.

The company vigorously disputes the allegations. It has raised a Defense Production Act defense that should not succeed (but provided a basis for the company to remove the case to federal court). But Iowa passed a civil immunity law last June that “covers businesses that include meatpacking plants, hospitals and nursing homes. It limits suits by employees, customers and family members to cases involving coronavirus-related hospitalizations or deaths. They can also sue if they can prove a business owner intended to make people sick.” Colorado rejected such a law last summer, but a number of states have enacted them. (We’ll see if those “shields” stay in place once the body politic has a better idea of where the costs of illness have been shifted).

How do I like the Iowa wrongful death suit? Technically, I think employees intentionally injured by their employers are not covered by the exclusive remedy rule of the Iowa Workers’ Compensation Act. Brcka v. St. Paul Travelers Companies, Inc., 366 F.Supp. 2d 850 (S.D. Iowa 2005). (For a discussion of the difficulties workers face proving causation in Covid-related workers' compensation claims see here). On the one hand, I found an Iowa case this morning that somewhat incredibly held that the exclusive remedy rule applied in the case of a supervisor who killed an employee by punching him in the chest after becoming angered that the employee had revealed alleged sexual indiscretions between the supervisor and a co-employee of the deceased employee. Estate of Harris v. Papa John Pizza, 679 N.W.2d 673 (Iowa 2004). Technically, the deceased employee had consented to the “chest shot,” but how in the world could a nineteen year-old employee in such a power dynamic imbalance effectively have consented? So, no, I do not like the idea of these Iowa wrongful death claimants being caught up in the murky world of “intent” and "wantonness/willfulness" based on the little I have seen of Iowa law. And, of course, just because you "escape" workers' compensation exclusive remedy does not mean you will escape the Iowa civil immunity law.

The point? To be an “ordinary,” little-person worker in the employment jungle that has been emerging over the last two decades is generally a very dangerous thing (regardless macropolitical events on the national stage). To be an ordinary worker in the land of Covid, without realistic hope of legal or administrative remedy, is some significant order of magnitude more dangerous. My boss invites customers not to wear masks and takes bets on whether I will survive. Would any rational person enter into this kind of social contract? Do not laugh at me when I invoke the Constitution. This is simply appalling.

Michael C. Duff

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