Workers’ Comp Hub Newsletter: Winter/Spring 2017


This month we report on how major corporations are transforming steady employment into temp work, with dire consequences for health and safety, access to workers’ comp, and other basic labor rights. We also bring you news on first responders’ struggle for workers’ comp, as well as updates on OSHA’s new anti-retaliation rule, the ongoing controversy over workers’ comp in FL, and more. Also please note that we have changed our format slightly. We will continue to highlight one main article in each newsletter, but we are taking a new, briefer approach to additional news, directing you to articles and reports with the full story.

– Jim Ellenberger

Temporary Work, Permanent Harm

At age 21, Day Davis was excited to work his first day at a Bacardi bottling plant. A few hours into his shift, he was directed to sweep up shattered glass from under a palletizer machine. He double-checked with his supervisor for instructions, but was only told to get safety gloves. As he went underneath the palletizer with a dustpan, an employee switched the machine back on, and Davis was crushed to death.

Day Davis was placed at the plant by a temp agency. His tragic death could have easily been prevented with proper training and basic safety protocols.

Sadly, Davis’ death reveals a widespread problem in how temp work is being used in today’s economy. Companies are increasingly contracting with temp agencies to bring workers to labor in their factories and warehouses, to maximize profits while minimizing the legal obligations they owe workers. But  cost savings for companies come at the direct expense of workers and their families, who are forced to deal with unreliable work schedules, job insecurity, poverty wages, unsafe conditions, inadequate safety training and equipment, and retaliation when they stand up for their rights.

“If you even look at that board [with health and safety postings] too long, you get [put on the Do Not Return list for the company],” shared a long-time temp worker in Illinois.

The dangers and abuses facing industrial temp workers like Day Davis have been reported on by investigative journalists at ProPublica and the NJ Advance Media, among other others, and are now the focus of a new report from the National Staff Workers Alliance (NSWA) and the National Economic and Social Rights Initiative (NESRI). Drawing from temp workers’ experiences in four states, the report, “Temporary Work, Permanent Abuse: How Big Business Destroys Good Jobs,” reveals shocking abuses against temp workers. It also exposes how companies are using temp work, which exploits and exacerbates workers’ vulnerabilities, to erode protections for all workers. 

Facing threats to their safety, workers are organizing

Among the risks facing industrial temp workers are risk of bodily harm. When temp workers are injured on the job, they are not only unlikely to receive workers’ comp, they risk losing their jobs for taking time off to recover. Workers across the country tell horrifying stories of supervisors forcing them to choose between their job and necessary medical care, even in emergency situations. One man who had worked in the same New England factory for 18 years said he still “had no right to be ill one day.” When he experienced chest pain on the job, his supervisor insisted he had to stay: “If you leave there will be no more work.” Unable to afford the loss of work, many temp workers continue to tolerate painful injuries and harmful work conditions until they become disabled. Meanwhile, sub-poverty wages and chronic job insecurity combine with rampant retaliation to silence workers from speaking out about health and safety violations.

Despite overwhelming challenges, worker-led movements in several states are transforming organizing models and making promising headway towards new, landmark legislation protecting temp workers’ rights. In California, temp and direct hire workers have joined together with the support of the Warehouse Worker Resource Center and Teamsters to push for unprecedented joint union representation. In New Jersey, industrial temp workers at New Labor have started an innovative organizing effort centered around storytelling, and by sharing their stories with investigative journalists at The Star-Ledger, have shed light on abusive practices in the temp industry and built public demand for legislative action. Meanwhile, Community Labor United is pushing for a law in Massachusetts that would restore legal accountability for worker abuses by holding “lead businesses” responsible in multi-layered subcontracting arrangements. Fuerza Laboral is leading the effort to introduce similar legislation in Rhode Island. Finally, in Illinois the Chicago Workers’ Collaborative and Warehouse Workers for Justice are working with the Illinois AFL-CIO and other allies on a bill that would improve enforcement of temp worker protections.

The Rise of “Perma-Temping”

Over the past few decades, major brand name corporations including Walmart, Home Depot and Amazon have increased their profits by transforming the country’s warehouse and factory jobs from stable, full-time, and often unionized positions into precarious temp jobs. Through layers of contracting, they are exploiting a loophole in employment law that allows them to shirk their legal responsibilities for workplace health and safety, workers’ comp, and other hard-fought worker protections.

Though labor laws technically apply to temp workers, effective enforcement in this context is practically impossible. Enforcement of every workplace protection relies on the existence of an employment relationship. Temp agencies rarely, if ever, do more than move bodies to worksites, and the companies that contract with them retain tremendous control over the conditions of work. Yet legislators, enforcement agencies, and judges, who are influenced by corporate lobbying efforts, have placed primary legal responsibility for these workers with the temp agencies. This enables corporate powerholders to degrade workplace conditions through low-bid contracting, even in violation of basic workers’ rights, with little or no risk of consequences.

At the same time, temp workers are in a precarious position that makes it much harder for them to speak up about workplace abuses. Because abuses that don’t get reported don’t get fixed, these abuses are largely hidden. Instead of rule of law, fear governs the workplace.

According to a study in Washington State, temp workers in the construction and manufacturing sectors suffered workplace injuries at twice the rate of direct hires. A ProPublica investigation analyzing millions of workers’ comp claims revealed similarly appalling results, including evidence that blue-collar temp workers in Florida are six times more likely to be injured and three times more likely to suffer an amputation on the job than permanent employees.

Between threats of retaliation and the long delays and low success rates of formal complaint processes, relatively few temp workers even file a workers’ comp claim when injured on the job. Amongst participants in the Temporary Work, Permanent Abuse survey, a mere 21% of severely injured temp workers tried to apply for workers’ comp.

Temp workers who do file a workers’ comp claim must do so through their temp agency. Not only does this complicate the process for workers, it also shields the companies for whom they labor from having workplace injuries lead to increases in their workers’ comp insurance premiums. This is additional motive for companies to use temp agencies to supply labor for their most hazardous jobs, further normalizing temp work as a permanent part of the economy and disregard for the health and safety of workers.

As companies increasingly use “perma-temping”  as a strategy to increase profits, the health and safety of workers and our broader communities are dangerously compromised and access to workers’ comp and other workplace protections breaks down. Combatting this routine exploitation requires a new framework for effective workplace enforcement that protects all workers’ basic human rights through supply-chain accountability that reaches the corporate decision-makers at the top and that empowers workers at the center of enforcement to defend their own rights.

News Roundup

During Workers’ Memorial Week, April 23-30, groups across the country commemorated workers who have lost their lives on the job. The National Council for Occupational Safety and Health (COSH) ran a series of programs to support local actions, including family involvement and outreach projects. They also released a report detailing trends in worker fatality rates, identifying employers who put workers at risk, and recommending actions to make work safer. To learn more about this year’s Workers’ Memorial Week, visit the National COSH website for outreach materials, infographics, and reports.

A corporate-funded group that promotes legislation allowing employers to opt-out of workers’ comp is bringing their lobbying efforts to the national level. Amid concern about “how responsible the Department of Labor is going to be about the concerns of working people,” this intervention from a corporate coalition is extremely worrying, says Rick Levy, secretary-treasurer of the Texas AFL-CIO.

Overturning the Affordable Care Act would have many dire consequences, including hurting coal miners suffering from Black Lung. The ACA’s Byrd Amendment, which presumed that Black Lung resulted from mining, would be reversed and ill workers would once again face unconscionably high barriers to proving their disease resulted from employment.

Obama’s last-second West, Texas safety reforms could be scuttled by the Trump Administration.

Excluded from health and safety laws, incarcerated workers suffer grisly, preventable injuries with no access to workers’ comp while imprisoned.

Willful health and safety violations and inadequate regulatory resources have led to an increase in construction worker deaths in New York over the past two years.

Iowa Republicans have passed a workers’ comp overhaul that takes away benefits from injured workers with pre-existing conditions and reduce coverage for shoulder injuries.

Arkansas considers bills to cut off workers’ payments at 450 weeks, allow employers to opt out of workers’ comp

California, whose Latino workers are injured and killed at high rates, will consider a bill to extend workers’ comp protections to day laborers, who face high safety risks and have few protections.

San Bernardino victims and Pulse first responders denied workers’ comp

Survivors of last year’s San Bernardino terrorist attack have faced a prolonged struggle to access the medical care they need in the wake of the shooting. The attack is considered a workplace incident, meaning the victims, all employees of San Bernardino County, must seek coverage under workers’ compensation rather than private insurance. Yet the county has denied many necessary procedures for shooting victims, as well as mental health treatment for those suffering PTSD, citing the state’s strict workers’ comp guidelines. Many of the workers injured and/or traumatized are speaking up, calling out the county’s unconscionable delays and inaction. Given the gravity of the incident and its unprecedented nature, they say, the county has a responsibility to approve procedures important to victims’ recovery, even if they don’t fall under standard guidelines. They add that the claims process should consider the professional opinions of the doctors treating them rather than referring decisions to a bureaucratic ‘utilization review’ by a doctor who never sees patients face-to-face.

In Florida, first responders to the Pulse Nightclub shooting have also struggled to access workers’ comp for psychological trauma. The state’s comp law doesn’t cover mental conditions unless they can be traced to a physical injury or ailment. Many police officers and other first responders have suffered from debilitating PTSD since the attack, requiring both medical treatment and time off that should be covered by workers’ comp.

Injured workers’ rights threatened in Illinois

In Illinois, Governor Bruce Rauner continues to push hard for workers’ comp deforms that would significantly increase barriers to care for injured workers. The Governor and other right-wing voices have been ramping up efforts to gain support for his plan, which would force injured workers to prove that their condition was at least 50% caused by employment. As we reported previously, this conditional causation clause would submit injured workers to an unfair and arbitrary standard of proof in what is supposed to be a no-fault system. Proponents of the bill have emphasized three main talking points: reduced costs for taxpayers, the need to attract employers and compete with neighboring Indiana, and the assertion that obesity, smoking, and general aging are contributing to higher rates of workers’ comp claims. In truth, Illinois has a rate of compensable injuries lower than both the national average and its neighboring states, and this narrow definition of cost ignores the enormous uncompensated costs borne by injured workers, families, and public health care and social insurance systems. Moreover, the current causation standards are in fact the same as Indiana’s, deflating Rauner’s claim that “the workers’ compensation system has been forced to absorb the growing costs of obesity, heart disease, diabetes and other degenerative conditions.” In their opposition to the Governor’s plan, Democrats have suggested legislators instead turn their attention towards insurance companies, which have profited greatly since the state’s 2011 reforms, but have not passed these savings on to employers. Meanwhile, the Illinois Single Payer Coalition has responded to the state’s workers’ comp debate by emphasizing that a universal, single-payer healthcare system would provide better access to timely, guaranteed healthcare for injured workers, whose health and recovery is often at the mercy of profit-hungry private insurance companies.

OSHA anti-retaliation reporting rule moves forward despite challenge from insurance industry

On December 1st, OSHA’s new workplace injury and illness reporting rule went into effect after clearing a final challenge from the insurance industry and big business. Several industry and insurance trade groups and a major insurance company attempted to stop the rule’s implementation by requesting an injunction, a court order meant to prevent an action which invades the legal rights of others. In its decision on the case, a U.S. District Court in Texas denied the request and said the plaintiffs failed to show the rule would cause them harm or that stopping it would not be a disservice to the public. The rule creates important requirements for employers’ policies on reporting injuries and illness, helping to protect against retaliatory measures, unreasonable time limits, and other barriers to reporting a workplace incident.

Human rights commission backs immigrant workers

In December, the Inter-American Commission on Human Rights (IACHR) found the United States guilty of violating two immigrant workers’ human rights by failing to protect them against workplace discrimination and retaliation. Over a decade ago, both workers suffered serious on-the-job injuries, but instead of receiving workers’ compensation they found themselves shut out of the system and unable to pay for medical care because their employers reported their immigration status as soon as they filed claims. On behalf of these workers and millions of others who face the same threats, the American Civil Liberties Union, National Employment Law Project, and University of Pennsylvania Law School’s Transnational Legal Clinic filed a petition with IACHR, citing failure to provide equal remedies for workplace injuries in Pennsylvania, New York, Kansas, and Michigan, as well as New Jersey’s limited protections against workplace discrimination for undocumented immigrants. In its long-awaited decision, the Commission made several recommendations to strengthen U.S. anti-discrimination laws. These include eliminating distinctions in labor and employment law based on documentation status once employment has begun; allowing undocumented workers to delay deportation until after workers’ comp cases have been resolved and medical issues treated; and prohibiting employers to look into workers’ documentation status after they have filed claims or otherwise asserted workplace rights.

New data on workplace fatalities

Fatal on-the-job injuries were the highest they’ve been in seven years in 2015, according to a recently released census from the Bureau of Labor Statistics. Workplace fatalities were especially high among workers over 65 and Latino workers, who are concentrated in high-risk jobs. The census data also shows that construction continues to be one of the most dangerous industries. Many fatal construction injuries result from falls and being struck by heavy machinery, underscoring the need for preventive safety practices and tight regulation of workplace hazards.

Florida judge declares insurance rate hikes illegal

In Florida, a Circuit Court decision has stopped the workers’ comp insurance industry from pushing through a 14.5% rate hike. Judge Karen Gievers ruled the planned rate increase void because of the lack of transparency in the review process, which violated the state’s “sunshine law”. The National Council on Compensation Insurance had multiple closed-door meetings with the Office of Insurance Regulation, already reaching an agreement on the proposed rate before a public hearing was scheduled. Mark Touby, president of Florida Workers’ Advocates, called the ruling a “tremendous victory for Florida businesses and the workers they employ.”

As we’ve reported before, Florida’s Supreme Court ruled last summer that unreasonably low limits on workers’ comp attorney fees are unconstitutional, violating injured workers’ rights to due process. The ruling has stirred up significant controversy over the state’s workers’ comp system as legislators reconsider components of the 2003 reforms that severely limited benefits and access to the comp system for injured workers.

NFL players continue fight for workers’ comp

A group of former NFL players has sued for workers’ compensation for chronic traumatic encephalopathy (CTE), a degenerative brain disease they developed as a result of traumatic head injuries while playing for the NFL. Last year, the NFL settled a class action suit for $1 billion, benefiting retired players with brain damage and families of those who died from CTE. However, that case did not address future compensation for the debilitating condition and the NFL continues to deny and downplay the overwhelming evidence connecting repetitive head injury with CTE. This latest lawsuit, filed on November 21st, aims to set a new precedent, not only seeking compensation for the 38 plaintiffs, but also requesting that both state workers’ comp laws and the NFL’s collective bargaining agreement specifically list CTE as a compensable disease.

Number of opt-out employers drops in Texas

The number of Texas employers who have opted out of state workers’ compensation has decreased significantly in the past two years, according to the Division of Workers’ Compensation’s latest report, which attributes this decrease to lower insurance rates. Still, an estimated 82,260 Texas employers remain ‘non-subscribers,’ leaving over 400,000 employees uncovered for a work-related injury in 2016. Moreover, the report notes that many of the companies that opt out of workers’ comp fail to comply with reporting requirements, limiting transparency and access to data on workplace injuries.

Take Action

Sign this petition in support of National COSH’s Don’t Cut Job Safety Campaign.If you live in New York, sign this petition against the the Business Council’s proposed workers’ comp benefit cuts.


“Temporary Work, Permanent Abuse: How Big Business Destroys Good Jobs”

National Staffing Workers’ Alliance and NESRI have released a report on systemic workers’ rights abuses in the temp sector and the innovative ways worker-led movements are fighting back (featured in this newsletter).“Protecting Lives and Limbs: An Agenda for Action”

This new report from National COSH outlines an eight-point agenda for protecting worker health and safety, including recommendations for executive, congressional, and state action.

“Dirty Dozen”

This report by National COSH commemorates Workers’ Memorial Week and calls out employers who put workers and communities at risk.

“Compensation not Open to Interpretation”

Injured workers in New York are often deprived of essential interpretation services during workers’ comp hearings, shows this report by the National Center for Law and Economic Justice.

“Deadly Skyline”

NYCOSH reveals rampant safety violations at New York construction sites in a new report on construction fatalities.

Black lung and the ACANPR reports on the essential protections Obamacare has provided for coal miners suffering from black lung, warning that plans to overturn the Affordable Care Act would jeopardize their access to care.

On the job fatalities

The Bureau of Labor Statistics has released the latest census on fatal workplace injuries, revealing the highest rates in seven years.