Saturday, November 28, 2020
On November 1, Federal District Court Judge Cogan, of the Eastern District Court of New York, dismissed the public nuisance suit filed against Amazon in connection with its alleged unhealthy operation of the JFK8 Fulfillment Center in the context of Covid-19. I think I pretty accurately predicted the way the case would unfold in my blogpost on the dispute back on June 6. It seems clear that federal courts will reflexively defer to federal enforcement agencies, even if it is plain as the nose on your face that the agencies are not doing anything (or are doing very little). As the court noted, “The doctrine of primary jurisdiction seeks to maintain a proper balance between the roles of courts and administrative agencies.” The primary jurisdiction rationale is that courts should rely on “agency expertise.” The court went on to note that OSHA, “has the primary responsibility for setting and enforcing standards and providing research, information, education, and training to assure safe and healthful working conditions. OSHA has broad prosecutorial discretion to carry out its enforcement responsibilities under the Occupational Safety and Health Act . . .”
Thus far, only boilerplate; for the problem arises (as so often is the case in administrative law) when the agency is transparently not applying its expertise. Next, the decision moves into a phase of argument reducible to, just because the agency has not issued a Covid-19 standard does not mean it is not doing something; in fact, it did something when it decided to do nothing. (I sigh and recall Voltaire’s Dr. Pangloss). Next, the court reminds us that courts are not expert in workplace safety matters (see page 11 of the decision). But the question is whether a court trying to do something could do a better job than an agency ideologically committed to doing nothing. This is the elephant in the room. (I feel compelled to add that when I was a blue collar worker I was deeply skeptical about what OSHA was willing to do on its best days. I wonder how that question would be answered within the general community of workers if OSHA fines were expressed not in dollar amounts but as a percentage of the daily operating profit of the offending company. I think I know, but I apologize for digressing to the real point).
I will not go through the opinion line by line but I did want to mention for this audience that I said in my blog post of June 6: I suspect that the public nuisance claims of employees may eventually be barred by operation of the exclusive remedy rule. The court did not even go as far into the analysis as I thought it might.
First, the court said that “[b]oth plaintiffs’ concern and their risk [of being harmed by Covid] present a difference in degree, not kind, from the injury suffered by the public at large and thus is not actionable in a private action for public nuisance.” But even if a public nuisance claim were available, continued the court:
The New York Court of Appeals has not considered whether the Workers’ Compensation Law’s exclusivity provision preempts a suit for injunctive relief. But the broad language of the exclusivity provision and the trade-offs embodied in the law compel me to conclude that the Workers’ Compensation Law bars plaintiffs’ . . . claim to the extent it is based on past harm. The “Labor Law codification of the requirement to provide a safe place to work does not overrule, and indeed, is subject to the exclusivity provisions of the Workers’ Compensation Law.” . . . The exclusivity provision broadly states that the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee . . . It is difficult to imagine a broader phrase than “any other liability whatsoever.” If “liability” was not intended to include injunctive relief, as plaintiffs argue, then the statute easily could have substituted that word with “monetary damages,” “payment of compensation” or some other phrase. As plaintiffs note, the provision also discusses “damages, contribution or indemnity” and “compensation.” But the statute uses the broad word “liability” within an even broader phrase, and so I must conclude that it was intended to cover suits for injunctive relief in addition to suits for damages. This reading is further supported by the nature of the trade-offs embodied in the law. “Fixed compensation is guaranteed to the injured employee regardless of fault and in exchange for reducing the costs and risks of litigation to the parties.” . . . In exchange for the “security” of receiving fixed benefits, “the employee has been asked to pay a price in the form of the loss of his common-law right to sue his employer in tort.” . . . The purpose of the law therefore is not just to provide a mechanism for compensation, but also to protect employers from suit . . . Allowing plaintiffs to avoid preemption by seeking only injunctive relief would thwart the purposes of the statute and the trade-offs embodied in it.
One might criticize the federal court’s sojourn into New York state law to answer an undecided question (under state law) once it had reached an adequate ground of decision on federal primary jurisdiction. It is also curious why the court considered the question of whether public nuisance claims are subject to workers’ compensation exclusivity. After all, the court concluded there was no public nuisance. Why go further? But then, after going further, the court does not really address the critical question. As the court observes, the workers’ compensation scheme serves “in place of any other liability whatsoever” for an employer to an employee. The question is whether legislatures ever considered imposition of injunctive relief as a “liability” to which workers’ compensation exclusivity applies. As the decision implicitly acknowledges, plausible textualist arguments work both ways, and it seems to me resort to deep legislative history is unavoidable. I do not think you could find such history discussing the application of exclusive remedy to public nuisance, and I have discussed elsewhere the prickly doctrinal problems in trying to do so (see also here at Section 5.3). In any event, you do not have to reach that question if public nuisance cannot be established, so I am not sure why the court did. But if a court were to find that the harm, or risk of increased harm, or fear of harm or risk of increased harm, suffered by plaintiffs exceeded that suffered by the general public so much that it became a different type of harm, you could have a public nuisance. In that case, the question of conflict with exclusivity would have to be much more carefully considered.
The plaintiffs have appealed the case to the Second Circuit. My guess is that, given the new political dynamics, the Circuit will uphold on the primary jurisdiction question and find ruling on the state questions “unnecessary.”
Michael C. Duff
Thursday, November 19, 2020
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
Tuesday, November 17, 2020
I have arrived at the point in my torts course when we discuss the distinction between “employees” and “independent contractors.” The first thing I will be asking my students is what happens if a California Uber driver negligently, grossly-negligently, or even intentionally runs into their car. By this point in the course they have a working understanding of principles of vicarious liability, so they will tell me they would sue both the Uber driver and Uber itself. I’ll explain that deregulating the rideshare sector in California, after an unprecedented 200 million dollar corporate campaign (ultimately financed by venture capitalists), means not only that a broad swath of drivers is not covered by employee statutes but also that tort liability has been severely compromised – which sounds like a great idea until someone you happen to know has been rendered quadriplegic by an assetless Uber driver. I will explain that under Restatement agency principles a “principal” is almost never liable for the torts of its “independent contractor.” (Though I suspect that the Gig economy will now force more and more exceptions to the rule). I will explain that they will have a lot less writing to do on their torts final examination if I give them a fact pattern that has an Uber driver slamming into another driver. They may be able to argue that the hypothetical plaintiff would not pursue the claim because the negligent driver will not have pockets deep enough to finance the litigation. I might let them get away with this analysis: no need to discuss pesky issues of respondeat superior, duty, breach, causation, and harm. No need to discuss compensatory damages. Perhaps they could discuss cost-shifting for extra credit (after all, someone will pay – a constant refrain in my torts class).
When discussing the Proposition 22 development in my workers’ compensation course next semester, I will explain distinctions between the different employee tests around the country and point out that there is no reason to think that corporate deregulation campaigns will stop in California, or with any particular job function (why stop at drivers?), or with any particular body of law (why not include workers’ compensation?). How much corporate money would it take, for example, to engineer a campaign to classify half the workforces in Oklahoma or Tennessee as non-employees? How much corporate money would it take to persuade voters in Indiana that workers’ compensation is “so 20th century.” (No need for pesky workers’ compensation insurance because there is nothing to insure: no carriers, no lawyers, no workers’ compensation boards). Much less than 200 million dollars I would imagine. You really don’t have to be a weatherman to know which way the wind is blowing (everyone always complains about the weather but nobody does anything about it!). Just keep your eye on the ball as you see some of the chief Gig-hustlers scurrying over to the Biden transition team. Of course, we all know where this ends – the law of liability-imposing agency has its roots in the Roman law of two millennia ago, for God’s sake. And for all the known reasons (your liberty is limited by my security). The horrific “accident” that is a bridge too far always comes, but what a tragedy that we must (apparently) fight all these battles again. And some will claim they were not warned.
Michael C. Duff
Friday, November 13, 2020
Kentucky Supreme Court Upholds Governor's Emergency Covid Executive Actions Including Creation of Workers' Compensation Presumptions
WorkCompCentral has a good story here. (behind a paywall).
The “brisk” 92-page opinion is reducible for my purposes to two propositions. First, the executive generically has broad emergency powers. Second, under Kentucky law the legislature has specifically delegated the executive broad emergency powers.
The delegation portion of the opinion may not stand as the Governor's foes have vowed to effectively strip the delegation by legislation. The question of the limits of Executive Orders/Unilateral Action would be more intellectually interesting if it arose in a context other than a pandemic-level emergency. It is hard to say what diminished level of emergency would trigger separation of powers pushback by state courts. Under federal law, of course, the U.S. Supreme Court said the Korean War wasn’t enough of an emergency to justify Harry Truman’s seizure of the steel mills (which, of course, is distinguishable because it involved the unambiguous deprivation of private property).
I suspect that many state courts will react similarly to Kentucky in concluding that Covid is enough of an emergency for the executive to act unilaterally in certain traditionally legislative areas without legislation. And, in the case of employers'/carriers' liberty/property 14th amendment challenges focused on workers' compensation Covid presumptions established by executive order, I suspect the federal courts would apply deferential rational basis review to executive actions. As we know, this is the traditional "police power" mode of judicial review by federal courts of most state workers’ compensation legislation, which is deemed historically an exclusive matter of state law. I would expect the federal courts to have a similar attitude concerning all state workers' compensation law, whether the product of legislation or executive action. (I don't always agree with this reflexive approach, but it is undeniably customary). Obviously, this is just a surmise, and in the new 6-3 reality at the U.S. Supreme Court I'll be betting my primary residence on nothing.
Michael C. Duff
Sunday, November 8, 2020
I was pleased to participate in this panel back on October 27. I actually snuck the phrase "bursting bubble presumption" into the conversation. I'm warming up for taking over my law school's Evidence course next semester (for the second time). Here's the Ametros website summary:
To learn how the pandemic has disrupted workers’ compensation, we have presented webinars with regulators, physicians, Administrative Law Judges and pharmacy experts. In this webinar recording we are featuring what the academic legal community is thinking. In this webinar discussion, two distinguished law professors will share their views.
Joining Paul H. Sighinolfi, Ametros' Senior Managing Director will be Professors Michael Duff and John Lazzara. Professor Duff is a graduate of Harvard Law School, a prolific writer, including a text on workers’ compensation, and commentator. He teaches at the University of Wyoming Law School. Judge Lazzara distinguished himself as a former Judge of Compensation Claims in Florida. He was a founding member of The National Association of Workers’ Compensation Judiciary where he was elected to the Board and served as president. He now teaches as an Adjunct Professor at the Florida State University College of Law.
The panel discusses:
Efforts states have taken to adjust workers compensation to the COVID-19 pandemic including legislative, regulatory, and executive actions introducing compensability presumptions into the law
What is a presumption, how do they work, and why should they apply to certain categories of workers and not others?
Should there be a more comprehensive national disability option addressing incapacity caused by a virus?
The link to the video is here.
Michael C. Duff
Friday, November 6, 2020
NASI's annual "costs and benefits report" is just out and is updated to include 2018 data (the most recent available). Yours truly and Pennsylvania Workers' Compensation Judge David B. Torrey--co-editors of this blog--are members of NASI's workers' compensation data panel, which advises NASI policy analysts tasked with creating the report. From the summary:
The 23rd annual report produced by the Academy on Workers' Compensation: Benefits, Costs, and Coverage (2018 Data) provides the only comprehensive data on workers' compensation benefits, coverage, and employer costs for the nation, the states, the District of Columbia, and federal programs. Drawing on a unique combination of data from state workers’ compensation agencies, A.M. Best, and the National Council on Compensation Insurance, the report is guided by a Study Panel of experts with diverse research, policy, and practice experience. While trends in this five-year study period (2014-2018) largely continue those presented in the past few reports, expanded discussions about who pays for workers’ compensation, which similar programs might belong in future analyses, and other social insurance and safety-net programs that complement workers’ compensation protections, offer new insights and timely information in the context of the current COVID-19 pandemic.
The Report is here.
Michael C. Duff