Workers’ Comp Hub Newsletter: Winter 2014
With the legislative season now underway across the country, workers and allies in several states are pushing for laws to get injured workers and their families fair compensation and improved access to doctors. There are also efforts to expand workplace rights and guard against payroll fraud. In New York, the State Workers’ Compensation Board is fast-tracking an evaluation and restructuring of the workers’ compensation system.The process has excluded workers from meaningful conversations about the future of the comp system in New York, but worker groups are pushing back, organizing actions around the state to make sure workers’ voices are heard. A new Workers’ Comp Hub guest blog from Joe LaDou picks up a story from our October newsletter and the Los Angeles Times on CTE, a brain disease caused by repeat concussions that is devastating thousands of athletes but leaving many without access to workers’ comp. Finally, a summary of other workers’ comp news from across the country reminds us that immigrants, temp workers, and many other groups of workers are systematically excluded from the workers’ comp system.
– Jim Ellenberger
Rushed New York workers’ compensation evaluation excludes workers and raises questions about goals of the process
New York State has commissioned Deloitte, an industry consulting firm, to lead a “business process re-engineering” project that the State Workers’ Compensation Board calls “an agency-wide endeavor to evaluate and rethink the workers’ compensation system in New York.” The process began quietly in the fall with little prior notification, catching workers and worker groups off guard. In October, the State Workers’ Compensation Board (WCB) arranged a series of stakeholder outreach meetings with employers, insurance companies, attorneys, and healthcare providers, but workers — those most affected by system changes — were excluded from these conversations. Not until this first round of consultations was finished and Deloitte had completed its “as-is assessment” of the current state of the system did the WCB schedule its first “Injured Worker Day” to hear from workers.
While the Board says it aims to create a better system for injured workers as well as employers, its superficial engagement of injured workers betrays a focus on efficiency and cost cutting rather than injured workers’ basic needs. Injured worker days were not designed to encourage dialogue on structural problems in the system, and the short surveys presented to injured workers were generic and simplistic, posing questions that didn’t begin to get at the real issues affecting workers’ access to timely medical care and wage replacement benefits. The Injured Worker Focus Group was presented with a vague, pre-determined set of proposals, and there has been a lack of transparency around how the Board is addressing structural problems that affect the system’s ability to meet the needs of injured workers.
Despite these roadblocks, worker groups and advocates have been pushing for more transparency and worker participation. On January 10, NYCOSH held a press conference in conjunction with State Sen. Diane Savino at the WCB’s Brooklyn office to release a report documenting the stories of seven injured workers—stories that demonstrate the human cost of a broken system. They also presented the agency with a list of recommended legislative and regulatory actions to address core problems that prevent the system from meeting injured workers’ needs. Ana Hernandez, one of the workers featured in the report, spoke poignantly to the failings of the workers’ comp system, saying, “My experience with the … system was marked by physical and emotional pain and anguish, which I would never wish upon anyone.” Speaking at an Injured Worker Day in Syracuse, Rebecca Fuentes of the Workers Center of Central New York emphasized that the agency needs to do better outreach to the most impacted workers. “People in this building need to get out,” she said. “We want to see them out at events, tabling. We need to see them everywhere … we’re very concerned that especially [the voices of immigrant workers] are not being heard.”
Contact Ben Palmquist at to find out more and get involved.
LEGISLATION WATCH
Misclassification
A U.S. Senate bill currently under review by the Committee on Health, Education, Labor, and Pensions would impose stricter guidelines for posting employee status and create harsher penalties for misclassification and failure to notify workers of their employment status. The bill would also presume that workers are employees with full benefits unless there is clear and convincing evidence that they serve as an independent contractor. Misclassification — also known as payroll fraud — is an illegal practice that employers use to deny their employees’ rights, stripping them of workers’ compensation coverage, the right to organize and collectively bargain, legal rights to equal opportunity and family or medical leave, and other important workplace benefits and protections.
In New York, an amendment to state labor law will create a similar presumption for anyone performing commercial goods transportation services. By placing the burden of proof on the employer to demonstrate that workers meet the requirements for independent contractors before they can be classified as such, these measures are an important step towards ensuring workers aren’t cheated out of workers’ comp and other rights because of employer dishonesty.
Stronger laws against misclassification are especially important for construction workers, who work in an industry with rampant payroll fraud and one of the worst workplace injury rates in the country. Unfortunately, legislation on the table in Florida seems to be backtracking on this issue, making it easier for companies that have received stop work orders to resume business, and proposing reduced fines for businesses who do not carry workers’ comp insurance.
Workers and advocates push pro-worker reforms in several states
In California, there is a bill up for review again that would restore several important injured worker rights that were undermined in the 2012 workers’ comp overhaul (SB 863). The bill was conceived and pushed by Dolores Huerta, co-founder of the National Farmworkers Association, who “asked [Senator] Jim Beall to introduce SB 626 on [her] behalf to correct several injustices and drafting errors in … SB 863.” The measure would increase access to chiropractors as primary treating physicians, incorporate psychological conditions in calculating benefits, and strengthen due process by allowing the Workers’ Compensation Appeals Board to overturn independent medical review (IMR) decisions. The California Chamber of Commerce, concerned solely with employers’ cost savings, is on the offensive to paint SB 626 as a “job killing” bill, although Huerta asserts the new measures would in fact save costs for employers. The bill has found advocates in the medical professional community, where there is concern that SB 863 limits workers’ comp patients’ medical care rights.
In Colorado, New Hampshire, and Massachusetts, pro-worker reforms to increase compensation benefits are moving forward. The AFL-CIO is behind a proposal in Colorado that would provide for a significant increase in benefits if the employer disregarded safety rules. Businesses and the insurance lobby are pushing back hard, but Phil Hayes, Political Director of the Colorado AFL-CIO, says that the 1991 comp overhaul created a system weighted in favor of employers, and this bill is about bringing back some justice for injured workers and improving access to care. In New Hampshire, HB 439 would also restore benefits taken away in reforms enacted two decades ago: the bill would raise injured workers’ comp payments to the norm of two-thirds of the average weekly wage. Meanwhile, MassCOSH is pushing for The Families of Fallen Workers Burial Act, a bill that would double the burial benefits paid to the families of workers killed on the job. The current burial payments under workers’ comp are unconscionably low, covering less than half the costs for an average funeral. Bill sponsor Sen. Brian A. Joyce speaks to the necessity for more just burial benefits, saying, “When a worker loses his or her life on the job, the families left behind deserve enough compensation to put their loved one to rest and begin to heal.”
NEWS REVIEW
Backlog in courts delays and denies access to justice
The Longshore and Harbor Workers’ Compensation Act, the federal benefits program protecting those who work in shipyards and on the water, has historically been friendlier to workers than state programs. But as Public Integrity reports in a continuation of its Breathless and Burdened series, a troublesome trend shows the number of Labor Department judges nationwide falling sharply while the number of filings continues to increase, creating devastating delays for injured and ill workers. who desperately need compensation. With wait times of several years to get a decision, workers with advanced illnesses are often forced to take settlements for a fraction of the benefits owed them.
Federal contracts go to some of country’s top health and safety violators
While the federal government may be trying to crack down on misclassification with a new bill, it continues to sign contracts with companies that are known to violate labor law and commit fraud. A new congressional report has found that an astounding 30% of the country’s top federal wage and safety law violators are current federal contractors. The federal government awarded over 80 billion dollars in contracts to employers with known violations in 2012 alone. Low-wage federal contract workers recently started a petition asking President Obama to ensure that federal contract workers are paid a livable wage and to ban employers who repeatedly violate health and safety laws from receiving federal contracts. On January 28, Obama announced that he would require employees of federal contractors to be paid $10.10 per hour. Though disabled workers were initially excluded from the higher wage, disability rights activists joined with labor and civil rights allies to win the same wage for disabled workers as everyone else.
Iowa affirms workers’ compensation rights for immigrant workers
In late November, the Iowa Supreme Court unanimously affirmed that a Mexican immigrant working under an expired visa is entitled to workers’ compensation benefits. The decision emphasized that the federal immigration statute is meant to stop employers from hiring undocumented workers, not to take away labor protections after an employment contract is signed. Legal access to workers’ comp for immigrant workers is important not only for protecting the rights of an already vulnerable part of the workforce, but also for discouraging employers who hire undocumented workers from dodging safety rules. Despite the ruling, threats of retaliation and deportation remain powerful forces that keep many immigrant workers from filing for workers’ comp and reporting health and safety and wage and hour violations.
Attack on immigrant workers’ rights in Ohio
While Iowa joins the growing number of states whose courts have affirmed the right to workers’ compensation for immigrant workers, Republican senators in Ohio are pushing for legislation that would cut undocumented immigrant workers out of the workers’ comp system and strip them of all other employee rights. The bill allows injured immigrant workers to file a civil case against their employer only if they can prove the employer was at fault for the injury and knew that the employee was undocumented when they were hired. The American Civil Liberties Union (ACLU) writes that the exceptionally high legal bar for these injured workers to recover any money for their injuries essentially gives employers immunity for health and safety violations and encourages companies to ignore safety regulations.
Oklahoma Supreme Court rules controversial workers’ compensation law constitutional
Oklahoma will move forward for now with enacting its recent workers’ compensation overhaul, which includes controversial measures that allow employers to opt out of workers’ comp plans. On December 16, the Oklahoma Supreme Court rejected a recent bipartisan challenge to the bill’s constitutionality, but the ruling was close and left room for future contentions. Three of the justices expressed explicit concern about the opt-out provision in the new law, pointing out that requirements for companies that opt out “do not provide adequate due process protections” for employees, violating injured workers’ right to a fair and participatory process.
Troubling trend for growing temp sector
According to a recent five-state ProPublica study analyzing millions of workers’ compensation claims, the risk of on-the-job injury is up to 72% higher for temp workers than for regular employees. With no financial obligation to pay for on-the-job injuries and little regulation or oversight, companies that hire temp workers are less careful about safety, regularly sending workers into dangerous situations with inadequate experience, equipment, or training. The quickly growing reliance on temp work puts workers at high risk of occupational injuries and toxic exposure, and is part of a larger trend toward precarious work. Since employers aren’t required to provide workers’ comp for temp employees, companies don’t have the same financial incentives to protect workers. Moreover, when claims are filed, temp agencies and companies often fight over who is responsible, creating delays that can have devastating effects on injured workers in need of emergency medical care.
Oregon hospital workers face high safety risks with little protection from OSHA
Recent studies have emphasized the health and safety risks to health care workers, showing that these workers are injured at rates similar to farmers and hunters. Yet in Oregon, a Lund Report review points to evidence that regulators are actually de-emphasizing attention to employee safety at the state’s hospitals. , most of which have not been inspected by the Occupational Safety and Health Division in years — and when inspectors find occupational hazards, Oregon’s OSHA office usually levies the lowest level of fines.
Fatalities increase dramatically in oil and gas industry
A hiring spike in the oil and gas industry has brought jobs to many blue-collar workers, but at a terrible cost. The 23% increase in industry jobs from 2009 to 2012 was accompanied by an over-100% increase in worker fatalities, placing the fatality rate for oil and gas workers almost eight times higher than the overall national rate.Those who have worked in the field report a money-over-safety mentality that encourages workers to rush through tasks and sacrifices crucial job training. The result is a lack of safety that not only makes the industry one of the most dangerous for workers, but also creates a high risk of catastrophic environmental disasters that threaten entire communities.
West Virginia chemical spill endangers entire community, raises questions about chemical regulation
The chemical spill that left over 300,000 West Virginians without a clean water supply bears striking similarities to last April’s chemical explosion in West, Texas, highlighting the appalling ongoing deficiencies in state and national regulation.Both disasters stunned the nation as indications emerged that while ample warnings were present, no preventative action was taken. While regulators at the Chemical Safety Board made safety recommendations in 2009 to Kanawha Valley, West Virginia, where the spill occurred, there was no concerted effort to follow up and enforce better safety practices.
Chemical industry pushes bill that would curtail legal rights of toxic exposure victims
The industry-backed Chemical Safety Improvement Act (CSIA) threatens to leave many victims of toxic exposure without legal recourse to receive compensation for their injuries and illnesses. The bill would give the Environmental Protection Agency (EPA) the final word in determining what chemical uses and levels are “safe”, forcing courts to consider the EPA’s safety determinations as final and preempting them from considering all other evidence that may prove otherwise.Tort law has traditionally seen safety regulations — notoriously slow and difficult to change with updated research — as a minimum requirement for companies. The CSIA would change this, creating a dangerous precedent that essentially exempts companies from accountability when dangerous chemical use leads to worker injuries and illnesses.
Proposed OSHA rule to strengthen reporting requirements for occupational injury and illness
OSHA has proposed a rule that aims to improve the woefully inadequate methods for reporting occupational injuries and illnesses. While new obligations to electronically submit injury and illness records to OSHA will hopefully help in tracking, prevention, and transparency, employer retaliation and threats of blackballing or deporting immigrant workers remain barriers to accurate reporting.
OSHA finds a way around outdated exposure limits
An OSHA case involving the chemical Styrene has found a way around the agency’s deplorably outdated permissible exposure limits (PELs). The process to amend PELs remains notoriously slow, but OSHA has developed a resource charting independent organizations’ updated exposure limits. OSHA has used these independent sources as evidence that the company Fiberdome, Inc. violated the general duty clause, which holds that a company must provide a work environment “free from recognized hazards … likely to cause death or serious physical harm”.OSHA Director David Michaels insists this isn’t indicative of a new strategy or trend, but coming on the tail of OSHA’s publication of annotated exposure limit tables and its statement that its own PELs are based on decades-old research and do not represent safe levels, the case demonstrates that given the anti-regulatory environment and powerful business lobbies, it is necessary to use other means to protect worker safety. Unfortunately, as Fiberdome’s challenge to the citation evinces, relying on the general duty clause invites expensive and time consuming legal cases for an agency already stretched far too thin.
Public hearings approach for updated silica rule
An extended public comment period has just ended for OSHA’s long-awaited silica rule, and the first public hearings are scheduled to begin on March 18 in Washington, D.C. The construction industry and right-wing economists have already lobbied strongly against the rule, basing their complaints on faulty assumptions and concerns over cost efficiency, with no consideration for the cost to human lives caused by continued use of silica at unsafe levels.
Mississippi workers’ compensation policies deny formerly incarcerated workers the right to work
Many workers’ compensation insurance policies in Mississippi bar employers from hiring formerly incarcerated workers, a direct denial of people’s right to work. The Associated Press reports that with the State considering a set of recommendations on Mississippi’s prison system released by a State task force in December, Democratic Rep. Willie Bailey is calling on fellow legislators to eliminate the hiring discrimination written into workers’ comp policies.
New Mexico farm workers win equal access to workers’ compensation
The New Mexico Court of Appeals has upheld the 2011 decision that abolishes the exclusion of farm and ranch laborers from the state’s workers’ compensation program. Farming is one of the most dangerous occupations in the country, and the industry’s widespread use of immigrant labor means that farmworkers are already among the state’s most vulnerable workers.The Sargent Shriver National Center on Poverty Law, the New Mexico Center on Law and Poverty, the National Center for Law and Economic Justice, and Sin Fronteras Organizing Project have been at the forefront of the fight for New Mexico farmworkers’ right to workers’ comp, and are committed to monitoring the State Workers’ Compensation Agency to ensure that they begin robust enforcement of the law for agricultural workers. Watch a video about the effects that discriminatory workers’ comp laws have had on farmworkers in the state.
A mixed bag for New York rescue workers
On December 16, Governor Cuomo announced that World Trade Center (WTC) workers — paid or volunteer — who performed rescue, recovery or clean-up on and after 9/11 have new protections for workers’ comp ensation benefits.The deadline for filing claims has been extended to September 11, 2014, and late claims, including those that were barred in the past because they were not filed on time, will be considered. Five health conditions including diseases that develop in the future will now qualify rescue and clean-up workers for compensation. Former NYCOSH Executive Director Joel Shufro points to the law’s importance for workers who contracted occupational illnesses with long latency periods, for whom symptoms may not have arisen until the filing period was over. Other rescue workers in the state weren’t so lucky: Cuomo vetoed two bills that would have added protections for first responders, including A.400, a provision that would have increased access to medical coverage for volunteer rescue workers.
| Take Action Join the call for transparency, accountability and participation in New York State’s workers’ comp system. To get involved, contact Ben Palmquist at |
Reports
Hydrogen Fluoride: A Toxic Chemical in Your Backyard?
The Center for Effective Government provides information and a mapping tool for hydrogen fluoride, a toxic gas that has caused at least 129 incidents resulting in worker death, injury, or evacuation over the past 15 years.
Construction Workers’ Crystalline Silica Exposure
Canadian occupational health and safety research organization IRSST and the University of Montreal have released a study showing that most construction workers exposed to silica dust will develop occupational disease in the long term.
Fatal Work-Related Injuries — United States, 2005-2009
The Center for Disease Control (CDC) report on occupational fatalities calculates a national rate of 3.7 workplace deaths per 100,000 workers. The report also shows that Latino and foreign-born workers are significantly more likely to die on the job.
Non-Fatal Work-Related Injuries — United States, 2010
The CDC has also released a report on non-fatal workplace injuries, showing that nearly a quarter of all Latinos in the U.S. are employed in high-risk occupations.
Workers’ Compensation Insurance: A Primer for Public Health
A new report by the National Institute for Occupational Safety and Health (NIOSH) and the CDC explores how workers’ comp insurance records could help develop preventative action to protect workers from on-the-job injuries and illness.
Public Integrity has assembled a digital newsbook of investigative reporting that probes how inadequate regulation and irresponsible corporate behavior contribute to a devastating 4,500 workplace fatalities and 50,000 deaths from occupational disease each year.
As part of its series “Temp Land: Working in the New Economy,” ProPublica has published a report featuring five stories of workers who suffered fatal workplace accidents while on temp jobs.
The Role of Health and Safety Evidence in Regulation and the Civil Justice System: Preserving Protection of the Public
The Center for Progressive Reform has published an issue brief detailing how the chemical industry-backed Chemical Safety Improvement Act (CSIA) would strip workers of their ability to present evidence proving causality between occupational injuries and illnesses and toxic exposure in the workplace.