Workers’ Comp Hub Newsletter: Spring 2015

Dennis Whedbee

In this edition of the Workers’ Comp Hub newsletter, we draw attention to recent reports tracking the dismantling of workers’ human rights in the comp system and provide tools for taking action. We also report on the lack of worker protections in the ‘sharing economy’, the problem of workers’ comp opt-outs, and new developments in state legislation.

– Jim Ellenberger

ProPublica, NPR, and OSHA bring renewed attention to workers’ compensation

HOMER CITY, PA-September 12: Dennis Whedbee, 52, of Homer City, PA lost half of his left arm in a drilling accident in North Dakota in September 2012. (Jeff Swensen for ProPublica)

In recent weeks, a new report from OSHA and a series of investigative reports from ProPublic and NPR have highlighted how years of legislative attacks on state workers’ compensation systems have imposed tremendous suffering on injured workers in order to save employers money. Most recently, an investigation by Mother Jones has called attention to a powerful new corporate lobbying group that is already pushing to privatize and defund the workers’ comp system in Tennessee, and is setting its sights on all 50 states.

Together, the reports reveal the severe threats faced by critical public programs created to meet the fundamental needs and protect the human rights of workers. “While the situation is dire, the increasing public attention provides us a critical window of opportunity to begin to turn the tide on these abusive trends against working people,” says Cathy Albisa, Executive Director of NESRI.

The OSHA report and the ProPublica-NPR series highlight many of the problems injured workers and advocates know well: barriers to accessing health care, arbitrary and inadequate wage replacement payments, and an onslaught of indignities that add insult to workers’ injuries. They also highlight how the most vulnerable workers — including low-wage workers, immigrants, temp workers, and people with occupational diseases — bear the heaviest burdens.

The injustices that plague workers’ comp are, of course, no natural disaster. As Mother Jones makes clear, there is a concerted and very well-funded effort led by prominent corporations (including Walmart, Lowe’s, Safeway, Nordstrom, and Whole Foods) to dismantle workers’ health care and wage replacement protections in order to save employers money and increase their profits. While employers enjoy the lowest workers’ comp insurance rates they’ve paid since the seventies, and insurers see hearty profits, workers are hit with an unreasonable financial and emotional burden from workplace injuries and illnesses.

ProPublica, NPR, Mother Jones, and OSHA have brought renewed attention to workers’ comp and the denial of injured workers’ human rights. Our collective challenge as workers, advocates, and activists is to ensure this time it is different.  We must build off of their work by sustaining this story, linking workers’ comp campaigns with other struggles, and building a path to solutions. We thank and acknowledge the Public Welfare Foundation which has helped to support ProPublica’s reporting, and supports many other organizations across the country that are working to raise awareness about injured workers’ rights and to win changes to workers’ comp that make a difference in workers’ lives.  This June, the annual Worker Safety and Health Conference in Maryland, hosted by National COSH, will bring together people from all over the country to discuss strategy. And in case you missed it, NESRI pulled together a quick reference guide to help people leverage the ProPublica and NPR reporting and the OSHA report in their campaigns.

New briefing paper on systemic retaliation against injured workers

NESRI has published a new briefing paper, “Injured, Ill and Silenced: Systemic Retaliation and Coercion by Employers against Injured Workers.” The paper, available on the Workers’ Comp Hub, explores the systemic problem of employer retaliation against workers for reporting workplace injuries and illnesses and filing for workers’ compensation, and explores how an approach to workers’ compensation focused on workers’ human rights would mend gaps in worker protections, hold key decision-makers responsible, and advance larger structural changes. The paper puts forward a number of policy recommendations including shifting the burden of proving employers’ retaliatory motives off of workers; providing workers with a single point of access to make all types of workplace complaints; holding lead businesses that hire subcontractors responsible for work that they outsource to subcontractors; and publicly financing workers’ compensation through taxation instead of through private insurance as part of a larger set of programs including universal, publicly financed healthcare and other public support programs.

Sharing economy threatens to erode access to workers’ comp Two lawsuits determining whether Uber and Lyft workers are employees or independent contractors will go to jury, according to a March 11 decision by two California judges. As the app-based job sector grows, workers see their hard-won protections threatened. New companies are eager to take advantage of the ambiguities created by the emerging “sharing economy”, while workers’ comp and other systems meant to protect workers have failed to follow workers’ needs as the job market evolves. ‘‘Those workplace protections were put in place because of lessons that we’ve learned, and we don’t want to revert back to a time where they didn’t exist,’’ says Mary Vogel, Executive Director of the National Council for Occupational Safety and Health. With so much at stake over how workers are classified, it is worrisome that many of the most dangerous jobs fall to independent contractors, temp workers, and others outside the classic employment model, making it increasingly apparent that workers’ comp must adapt to the changing economy and meet all workers’ needs regardless of the nature of their employment.  
Workers’ comp opt-outs violate workers’ fundamental rights A bill that would allow Tennessee employers to opt out of the state workers’ comp system to create their own private compensation programs has been sent to the Senate Commerce and Labor Committee. The bill, as Mother Jones reports, is being pushed by the powerful corporate lobbying organization ARAWC, whose members include retail giants Wal-Mart, Macy’s, Nordstrom, Kohl’s, Lowe’s, Safeway, and Whole Foods. Alternative private comp programs designed by employers are subject only to very minimum requirements and oversight, leaving workers vulnerable to abuse and neglect. The Tennessee bill would also exempt employers from having to pay for many medical necessities for their employees, including artificial limbs, hearing aids, home care, funeral expenses, or disability modifications to a home or a car for injured workers.

In Oklahoma, where a law passed last year allowing employer opt-outs, injured workers are already paying the price. In February, attorneys representing two injured workers filed a lawsuit asking the Oklahoma Supreme Court to declare the state’s opt-out option unconstitutional. Michael Clingman, Director of the Oklahoma Coalition for Workers’ Rights, explains that opt-outs are particularly problematic under Oklahoma’s new law because while injured workers “have no access to the procedures…set up to protect their rights [in a state workers’ comp system]…the opt-out law also bars [their] right to sue an employer under tort laws.” While Tennessee’s law would allow employees to sue their employers, employees would be required to “prove negligence of the employer or of an agent or servant of the employer,” a bar that would be very difficult for workers to clear even if they are able to take their cases to court.
State legislation Right-wing legislators are pushing for a workers’ comp overhaul in Wisconsin that critics worry would replace the current system with a highly politicized model. In Illinois, the Chamber of Commerce is backing several proposals that would roll back workers’ rights in the comp system, including making it harder for injured workers to prove work-relatedness in order to receive compensation. A bill in Arizona would make it more difficult for workers to file bad faith claims when insurance agencies wrongly deny their original comp claims, while in Kansas the use of harsher medical guidelines to rate how much injuries are compensated will greatly reduce payments to injured workers. Check out NESRI’s legislative trends fact sheet and ProPublica’s interactive 50-state graphic on workers’ comp reforms for more on how these pieces of legislation fit into larger anti-worker trends.


The Dire State of Workers’ Comp 

ProPublica and NPR have published a joint investigative report on the state of the workers’ comp system.

Increasing Inequality

OSHA released a report highlighting the inadequacies of the workers’ comp system and demonstrating how workplace injuries and illnesses exacerbate the income gap.

Retaliation and Coercion

NESRI’s new briefing paper tracks employer retaliation against workers who report workplace injuries and illnesses or file workers’ comp claims.


Workers Memorial Day 2015 is approaching! On April 28th, organizations across the country will honor workers who have fallen on the job. Find an event near you.

On May 5 there will be a Lobby Day in Albany, NY to support the New York Health Act to create a universal, publicly financed health care system in New York. The Act will explore options to align or integrate workers’ comp with universal health care.

National Worker Health and Safety Conference, Baltimore, MD, June 2-4. Hosted by National COSH, the conference will include a workers’ comp session hosted by NESRI and allies including Labor for Single Payer Health Care and USMWF