Workers’ Comp Hub Newsletter: Spring 2018


This month we report on sexual harassment in the workplace, analyze the failure of workers’ comp and other legal protections to aid victims or prevent further abuse, and highlight organizing and policy innovations that target the root causes of gender-based violence. We also bring you news on proposed comp protections for first responders, a disturbing trend in court-ordered work sentences that deprive participants of fair wages and mistreat injured workers, and more.

– Jim Ellenberger

Responding to Sexual Harassment in the Workplace

A woman farmworker in the Florida fields, where worker-organizers have innovated effective responses to rampant sexual harassment and assault (photo credit: Coalition of Immokalee Workers).
A woman farmworker in the Florida fields, where worker-organizers have innovated effective responses to rampant sexual harassment and assault (photo credit: Coalition of Immokalee Workers).

Since news broke in October about Harvey Weinstein’s abusive treatment of women, women working in entertainment, media, sports, politics and other industries have spoken out to expose the rampant sexual harassment and assault in their fields, bringing the extent of sexual violence into the national spotlight. Though much media attention has focused on high-profile celebrities, women working in low-wage industries have added their voices to the conversation, pushing the dialogue to sectors where women “work in the shadows of society…out of sight and out of mind for most people in this country.” With decades of experience organizing for gender, racial, and economic justice, these women have led the way in calling for a systemic response to sexual violence. 

In the ongoing dialogue and partnership between labor leaders and celebrity members of TIME’S UP (a new legal fund and campaign to end gender-based discrimination and harassment), one thing stands out across all industries: sexual harassment and violence are enabled by pervasive workplace cultures that normalize and conceal abuses, creating job conditions that endanger women’s psychological and physical health. These are precisely the type of unsafe workplace environments for which workers should be able to get legal relief. Yet the primary legal mechanisms that should be kicking in when workplace harassment occurs—workers’ comp and equal employment opportunity agencies—are failing to fix unsafe working conditions and failing to ensure that survivors of harassment and violence receive the income and care they need. 

Sexual harassment and workers’ compensation have a complex history. Workers seeking workers’ comp for harassment face difficult barriers. It is notoriously challenging to prove under workers’ comp law that the emotional distress caused by harassment is work-related. Usually, if a mental harm is directly linked to a physical injury or assault, it is easier to show legally that it was caused by workplace conditions. However, so-called mental-mental injuries — psychological injuries, like PTSD, that arise from a mental stressor, such as verbal harassment and threats — are still excluded by some states’ comp laws, and where they are recognized as compensable, they must meet tighter eligibility requirements. One common test applied to these cases requires that victims are exposed to “unexpected, unusual, or extraordinary” stress. While this makes it easier to access workers’ comp for cases involving a single, highly traumatic incident, it can make it more difficult in cases involving repeated sexual comments or other inappropriate behavior which adds up over time. 

Workers are also supposed to have recourse to Title VII protections under the federal Civil Rights Act. But these cases, handled by the Equal Employment Opportunity Commission (EEOC), come with their own complications. The workers most vulnerable to sexual assault and harassment are also vulnerable to retaliation, which prevents most workers who experience sexual violence from speaking up or filing a complaint in the first place. For low-wage workers who live paycheck to paycheck and immigrant workers who fear deportation, grossly delayed and ineffective protection is cold comfort. The choice many are left with is a grim one: either endure a hostile and abusive work environment or risk job loss and further harassment if they speak up. As one temp worker shared in a chilling testimony of an all-too-common situation, “If someone didn’t respond to an [sexual] advance, you lost work. And if you responded, then you had work. If someone defends themselves, you lose work.“

Even when a worker decides to undertake the risks associated with filing a claim, hearings take years, often requiring constant struggle and effort. “Sometimes you just need money and have no time to fight. It’s really a job in itself,” says Tiana, a single mother of two, on navigating the administrative process of a state agency, adding that ‘it would be nearly impossible to keep this going‘ while working a normal schedule.

To mitigate delays, the EEOC uses mediation as a go-to solution for reaching faster decisions. But even with this approach, it takes an average of ten months to resolve a claim, and the resulting settlements can further silence victims’ voices as employers often make compensation contingent on employees keeping quiet. Furthermore, Title VII only protects those workers classified as employees, and companies with fewer than 15 employees are excluded. Finally, compensatory and punitive monetary awards are limited, particularly for smaller businesses, so they are seldom sufficient to deter employers that are unwilling to address — or are themselves complicit in — workplace harassment. 

Removing exclusions and limitations in both workers’ comp and Title VII remedies would be an important first-line response to help victims of sexual harassment and assault access needed care and compensation. One way to do this would be incorporating psychological injuries into workers’ comp in a more integral way, lowering the burden of proof and getting rid of provisions that require a link between mental harm and a physical injury. But the dense web of complications that works to stifle the voices of sexual assault survivors and block access to legal remedies cannot be undone without addressing structural inequalities that diminish women’s status and power in the workplace. And while power dynamics reproduce similar patterns of discrimination across drastically different sectors, we cannot ignore the fact that the economic insecurity of low-wage workers and prejudice against women of color, immigrant women, and lesbian, bisexual, and trans women compounds these individuals’ vulnerability to abuse in the workplace. Solutions need to focus on those workers who stand at the cross-section of cultural biases and economic injustice. 

Worker-led organizations have developed promising new models for workplace enforcement that use contracts with corporate buyers to ensure fair wages, basic rights, and freedom from retaliation. These programs, like the pioneering Fair Food Program created by the Coalition of Immokalee Workers, use the enormous purchasing power of corporate buyers to enforce higher labor standards in their supply chains by placing workers in charge of education, monitoring, and enforcement that holds tomato growers accountable to the workers’ code of conduct. This is a powerful and effective paradigm that has the potential to transform other industries like it has the tomato industry, impacting tens of thousands of workers. But to protect the millions of workers impacted by systemic workplace abuses, we need effective public systems of enforcement. “Co-enforcement“ approaches that pair the meaningful participation of vulnerable workers with government agencies responsible for enforcing basic labor protections is a critical part of expanding and strengthening the public enforcement system, argues Janice Fine, a professor at Rutgers University and Research and Strategy Director at the Center for Innovation in Worker Organization (CIWO). Ultimately, responses to sexual harassment need to be part of comprehensive solutions that simplify fragmented workplace enforcement systems, place responsibility and liability with the corporate powerholders whose business practices generate systemic abuse, incentivize their preventative action and ensure freedom from retaliation.

For more on what to do if you experience or witness sexual harassment, see this factsheet from Equal Rights Advocates. To learn more about workplace sexual harassment protections and what can be done to strengthen them, see this excellent report by the National Women’s Law Center.

News Roundup

In May, National COSH will launch a sexual harassment action network with a host of labor and nonprofit allies. The network will provide resources to foster leaders against sexual harassment, and bolster workplace and policy campaigns.

A bill on the table in California seeks to end discriminatory workers’ comp practices that reduce permanent disability ratings for women with job-related breast cancer if they are of child-bearing age. 

UNITE HERE and hotel housekeepers have won an important victory in California with a new state OSHA rule that aims to prevent musculoskeletalinjuries by requiring hotels to provide proper tools and training on injury risks, and ensuring workers have the right to suggest solutions for common risk factors. While such injuries are overwhelmingly common for housekeepers, it is difficult to get workers’ comp for chronic musculoskeletal conditions because they arise from repeated motions rather than a single recordable incident.

Several proposed laws would create important workers’ comp protections for first responders. Florida extended medical coverage and wage replacement benefits for first responders diagnosed with PTSD, in a bill supported by the CODE 9 Project, a nonprofit that raises awareness about post-traumatic stress disorder (PTSD). In New Hampshire, similar legislation is on the table to include PTSD under workers’ comp and establish a committee to look at how better to protect against PTSD among police officers, firefighters, and EMTs. Professional Firefighters of New Hampshire is also pushing for legislation that would make cancer a compensable illness for firefighters, who face a heightened risk for the disease from repeated exposure to smoke. Finally, in Virginia a bill is advancing that would expand firefighters’ access to workers’ comp for cancer by taking the burden of proof off employees, who under the current law must often spend years tracking down data to prove their disease is job-related.

Courts are sending hundreds of men, many not yet convicted of anything, to work camps that charade as addiction treatment and rehabilitation centers while increasing profit margins for the private corporations that pocket these workers’ wages. Touted as a prison alternative, the programs force participants to work without pay, under threat that they will go to prison if they don’t cooperate. And because workers are considered “clients” instead of employees, they aren’t eligible for workers’ comp. A Reveal investigative report has found that one such program, founded by poultry plant executives, has refused to give injured workers proper care, intimidated them into working with serious injuries, and filed comp claims on their behalf only to pocket the payouts.

The meatpacking industry regularly contracts out one of its most dangerous jobs, night-shift cleanup, to companies that pay a mostly immigrant workforce a meager third of what day-shift workers earn. While the meatpacking industry has been under scrutiny for health and safety in recent years, conditions in sanitation work still go under the radar because companies are exempt from reporting contractors’ injuries to OSHA. Meanwhile, workers who are injured on the job are more likely to be fired than receive compensation, and most are too intimidated by threats of deportation to file claims for either workers’ comp or retaliation.

In Kentucky, where black lung rates have gone up 40% just in the past four years, a new law restricts black lung diagnoses for compensation cases to a handful of pulmonologists, most of whom work for coal companies. 

In an uphill battle all too common for coal miners made ill on the job, retired miner Bethel Brock fought over 14 years for black lung benefits, with his claims repeatedly blocked by his former employer Westmoreland. When the Labor Department finally awarded Brock benefits last November, he thought the battle was finally over — until he received a bill telling him he had to repay benefits he received between his initial diagnosis and the company’s first appeal. The Labor Department also decided not to provide back-benefits for the years that Brock spent fighting his former employer, failing to hold the company accountable for its dishonest tactics.


Workers’ Memorial Week

From April 23-30, groups across the country will commemorate fallen workers and build awareness to promote healthy and safe workplaces. For events and more about organizing an action, including media outreach tools, reports and resources, see the National COSH site.

Workers’ Rights in the Gig Economy

On April 27-28, Cornell University ILR School will host a conference bringing together government agencies, labor organizations, and scholars to discuss new policy and organizing strategies that promote workers’ rights in the on-demand economy. Learn more and register here


“#MeTooWhatNext: Strengthening Workplace Sexual Harassment Protections and Accountability”

This report by the National Women’s Law Center outlines failures in the laws and systems meant to combat workplace sexual harassment and advances recommendations for policy initiatives to strengthen protection and enforcement.

“‘Now the Fear is Gone:’ Advancing Gender Justice Through Worker-driven Social Responsibility”

This report looks at abusive conditions for women farmworkers and highlights the Coalition of Immokalee Workers’ Fair Food Program as a solution for gender-based violence.

“Broken Bodies, Fighting Spirits: Life after a Workplace Injury”

This report from Arise Chicago documents injured workers’ struggles with the comp system and gives recommendations for other workers.

“The Demise of the Grand Bargain: Compensation for Injured Workers in the 21st Century”

Videos and final papers have just been  published from this academic symposium examining workers’ comp under changing labor, legal, and  political conditions

Dying on the Job in Mississippi

In this report, the National Employment Law Project examines how inadequate labor protections have led to one of the highest workplace fatality rates in the country

Benzene Collection

This database contains over 4,000 documents produced in a civil lawsuit against Shell Oil Company in 2008 about benzene exposure in the workplace