Workers’ Comp Hub Newsletter: Summer 2015
This summer we celebrate recent victories for nail salon workers in New York and farmworkers in New Mexico, and look at the barriers to workers’ comp faced by those with occupational illnesses. We also report on threats to injured workers’ rights in Texas and Illinois, and on greater protections for farmworkers in New York State and workers in the “app economy.”
– Jim Ellenberger
Nail salon workers win new protections in New York Legislature
Nail salon workers celebrated an important victory in June, when the New York State Legislature passed a bill establishing new health and safety regulations and creating a Nail Salon Industry Task Force that will work to recover lost wages and ensure salons are following the law. The win comes after months of activism by the New York Healthy Nail Salons Coalition, the New York Coalition for Occupational Safety and Health (NYCOSH) and others, whose work led to a recent swell in media attention on the dire health conditions and appalling wage theft in New York nail salons. In the month since the law passed, many workers have received raises, overtime pay, and lunch breaks that would have been unimaginable before. As one worker from Queens testified, the law has created legal protections that “are critical for workers like me whose health and ability to provide for our families are threatened every day by low wages and poor conditions.”
But as we reported in our winter newsletter, no relief is in sight for workers who have already been made ill by toxic exposure. It is extremely difficult for nail salon workers to access workers’ comp. The barriers begin when, to save costs, many nail salon employers misclassify their workers as independent contractors, leaving them ineligible for compensation when they are made ill. Even workers who are covered by workers’ compensation insurance are required by state laws to meet an irrational and unjust burden of proof to demonstrate the precise cause of their illness, an impossibility given the nature of disease. Though researchers have clearly linked the so-called “toxic trio” of formaldehyde, dibutyl phthalate, and toluene to many of the health conditions nail salon workers face, including multiple types of cancer, miscarriages, birth defects, and damage to the nervous system, 90% of chemicals remain untested, the accumulated effects of and interaction between chemicals is poorly understood, and no one person’s disease can ever be traced to a precise cause with certainty. Backed by business-friendly legislation, workers’ comp insurance companies are quick to exploit any uncertainty in a worker’s case to have their benefits reduced or their entire claim dismissed. The nail salon industry exploits its overwhelmingly immigrant-women-of-color workforce who, because of language barriers and fear of deportation, are vulnerable to misclassification, misinformation, employer retaliation, and other obstacles to workers’ comp.
There is still work to be done to ensure that nail salons follow through on the law’s new health and safety regulations, but despite ongoing challenges, workers and advocates are celebrating a major step forward and building momentum for further reforms. Charlene Obernauer, Executive Director at NYCOSH, explains, “Today, we celebrate this historic victory for nail salon workers, confident that we are one step closer to creating healthy, just salons in New York State and all across the country. But tomorrow, and the next day, and for years to come, we will continue working to transform the industry–so that nail salon workers can go home at the end of the day knowing that their rights, and their work is respected.”
New Mexico court rules exclusion of farmworkers from workers’ comp unconstitutional
The New Mexico Court of Appeals ruled unanimously in June that the state’s exclusion of field and ranch workers from the workers’ compensation system is unconstitutional. The ruling makes New Mexico the 13th state to require workers’ comp coverage for all farmworkers. While New Mexico farmworkers, most of whom are immigrants, continue to face dangerous working conditions, wage theft, and other abuses as well as exclusion from adequate housing and health care, the ruling is a big step toward work with dignity. Congratulations to the New Mexico Center on Law and Poverty. For more, listen to the Nuestra America podcast on this victory.
New York lawmakers consider greater protections for farmworkers
The Farmworker Fair Labor Act (S. 1291/A. 4762) seeks to ensure basic protections for farm laborers, including the right to collective bargaining and greater eligibility for workers’ comp. Employers would be required to post a notice about workers’ comp coverage in both English and Spanish, and to provide workers with forms for a comp claim if they are injured on the job. New York State Senator Adriano Espaillat, the bill’s lead sponsor, emphasized that “farmworkers labor under hard conditions for hours to feed all of us, yet they lack basic protections and rights afforded to just about every single employee in our state.” To learn more and take action, check out the resources from the New York AFL-CIO and the “Except Farmworkers” campaign.
Injured workers’ rights go from bad to worse in Texas
On June 12th, the Texas Supreme Court unanimously ruled that workers whose employers have opted out of the state workers’ comp system cannot seek compensation for on-the-job injuries if they are aware of the safety risks that led to their injury. The employee’s knowledge of these safety defects essentially “eliminates the employer’s liability,” according to the decision. Workers’ rights advocates say the law is a terrible blow to injured workers in the state, but the ruling left workers with some hope by stating that they could still seek compensation under a separate negligence law that has rarely been used previously in injured worker cases.
The apparent immunity of negligent Texas employers extends beyond the state’s borders, as one Mexican worker’s tragic story shows. Rosa Moreno, the recipient of Public Justice’s “Illuminating Injustice” award, has spoken out about the broken system that left her penniless after her Texas-based employer refused to give her compensation when she lost both hands while operating machinery that cuts metal for flat-screen television parts.
Federal and Illinois workers face possible benefit cuts
The Labor Department has proposed a flattened wage replacement rate for injured and ill federal workers. The new rate would raise compensation for those with no children but lower it for those with families, creating a hardship for workers who must continue to support a household but are unable to work. Those in favor of the cuts hold that higher benefits disincentivize a quick return to work, but ninety percent of injured Federal employees already return to work within two years, and those who are unable to return to work would be punished.
In Illinois, meanwhile, Governor Bruce Rauner has placed workers’ comp at the center of his so-called “Turnaround Agenda”, proposing significant cuts to workers’ comp benefits in the name of economic competitiveness and job growth. His proposed legislation would not only cut medical payments and reduce benefits for traveling workers, but also raise the standards for proof of work-relatedness, requiring that more than 50% of the injury originate in the workplace. Such standard-of-proof laws create an easy opening for insurance companies to battle workers’ claims and, by shifting the burden onto workers to prove that their injuries or illnesses are work-related, deny workers’ rights to timely and guaranteed medical coverage and wage replacement. Workers have rallied to protect their rights, filling out ‘witness slips’ at the state capital to testify against Gov. Rauner’s proposed measures. “If the goal is to maintain a reasonably fair system of compensation for injured workers,” says workers’ comp expert Emily Spieler in her testimony, “then [the proposed measures] are seriously flawed.”
Good News for Uber Drivers and the “App Economy”
As Uber and other “app economy” companies expand, increasing numbers of workers are stripped of their rights—including their right to workers’ compensation—as these companies label them independent contractors instead of employees. However, in a June 3rd ruling, the California Labor Commissioner’s Office said that Uber often acts as an employer, and ordered the company to reimburse the plaintiff over $4,000 for her work expenses over the past year. While Uber has succeeded in maintaining that its workers are independent contractors in five other states, this case has the potential to set a precedent for other cases in California, where there are pending class-action lawsuits that would have much further reach.
Florida overturns decision that ruled the comp system unconstitutional
Last fall, we reportedon the significance of Miami-Dade Circuit Judge Jorge Cueto’s ruling that declared Florida’s workers’ comp system unconstitutional because benefits had been cut so much they no longer provided a reasonable alternative to a civil lawsuit. On June 24th, a Florida Appeals Court overturned Judge Cueto’s ruling based on a procedural technicality, but did not address the merit of the constitutionality question. The Workers’ Injury Law & Advocacy Group and Florida Law Advocacy, both of which joined the case as additional plaintiffs, have successfully used the case to raise awareness and start a dialogue about how the state’s workers’ comp system fails to protect injured and ill workers. But the fight is not over yet: there are two cases still pending in the Florida Supreme Court that also pose challenges to the workers’ comp system.
Failing to protect workers
The Center for Effective Government has published six charts that document the decline of workers’ compensation.
The Center for Public Integrity released a report on the dangers of silica and other toxic substances that threaten millions of workers.
Worker rights in NY nail salons
The New York Times published a multi-part investigative report on wage theft and health and safety abuses in New York’s 3,000+ nail salons.
Demand equal rights for farmworkers! Tell your senator to pass the Farmworker Fair Labor Standards Act and find more information and advocacy tools from the “Except Farmworkers” campaign.