Originally published on Workers' Compensation Law Prof Blog. Reprinted with permission.
Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all.
For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Those experts' work set American workers' compensation baselines. The oddity is that while Europeans moved on to universal benefit systems, we continue to use their 19th century work-injury system. (I write about these developments here). Additionally, the United States briefly flirted with the prospect of broadly establishing "liability statutes" in which employees' burdens for bringing railroad and maritime civil actions were lightened and affirmative defenses limited. (These experiments have more narrowly lived on in the form of FELA and the Jones Act).
The railroad experience, and dangerous industrial work generally, made everyone realize, virtually simultaneously, that the then-current system was not going to work. Workers' compensation was the result. Perhaps something like workers' compensation would have emerged even without railroad injuries, but we will never know.
Of course, American society might have said, circa 1910, "Well, because workers cannot prove negligence, and affirmative defenses will probably defeat their tort claims, there will simply be no recoveries for workers." It would have been a lot cheaper for business, in monetary terms, if we had set up a 1910 version of a Mitch McConnell liability shield. Instead, we collectively said that if the law was not up to the task of remedying injuries, the law would have to change.
So, when folks confront workers' compensation causation presumptions (or similar novel solutions), and react by saying, "That's not what workers' compensation was meant to do," I think they are missing the forest for the trees. Workers' compensation was "meant" to adequately remedy workplace disability and, more narrowly, to fix tort's shortcomings. Sure, it was all supposed to work at a reasonable cost – but it was supposed to work. A cheap, non-working system is no system at all. If workers' compensation, standing in the shoes of tort law, can no longer adequately remedy workplace disability, my response is not to throw up my hands and say, "Oh well, I guess there will be no recovery for disability." Rather, I start wondering whether workers' compensation has become more ornamental than useful.
I know that we are in "historical waters" when folks start discussing, with complete seriousness, whether all negligence causes of action and all workers' compensation remedies might be discarded for an indeterminate amount of time, and whether it is really so bad for employers to negotiate preinjury waivers of liability with their employees. My answers to these questions, of course, are "no" and "yes," respectively. But as I read reports of a new H1N1 virus, ruminate on the likelihood of a severe and long-term economic recession, and contemplate what I think will almost certainly be increased reshoring of industry to the U.S., I cannot help but wonder whether we will look back on spring 2020 as our version of the railroad "shock" of the early-20th century.
I used to assure my late dad that it was really OK for me to be taking so many legal history courses in law school (he was a non-lawyer and was not convinced). Somewhere along the line, my professors convinced me that history was always under construction. It is now almost impossible for me to believe that we are not on the precipice of profound changes to our workplace injury – and labor and employment – laws.
Showing 2,822 results
Michael C. Duff | July 2, 2020
Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all. For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Our current system was the result.
Alice Kaswan | July 1, 2020
When California adopted its first-in-the-nation regulations requiring truck electrification on June 25, the state took a step (or drove a mile) toward reducing pollution in the nation's most vulnerable communities. The new regulation exemplifies a key feature of California's approach: its integration of climate goals, clean air goals, and, at least in this case, environmental justice goals.
William Buzbee | June 19, 2020
On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.
Katie Tracy | June 19, 2020
Until this week, laws in a majority of U.S. states permitted some form of employment discrimination based on sexual orientation or gender identity. On Monday, the law changed – dramatically, sweepingly, historically – when the U.S. Supreme Court made clear that in this respect the 1964 Civil Rights Act's anti-employment discrimination provisions mean exactly what they say. The Court's ruling in Bostock v. Clayton County, Georgia makes clear that it is illegal to base employment decisions – hiring and firing, the allocation of work, the grouping of employees, compensation practices, harassment – on sexual orientation or identity. The prior patchwork of state laws – most of which permitted some type of employment discrimination based on orientation or identity – is no more.
Darya Minovi | June 18, 2020
A blog post published last month by the Chesapeake Bay Program, a collaborative partnership focused on Bay restoration, addressed the many ways that the climate crisis will affect farms in the region. Data from the program shows temperatures on Maryland’s Lower Eastern Shore, home to a high concentration of industrial poultry farms, increased between 2 to 2.5 degrees Fahrenheit, on average, between 1901 and 2017. By 2080, temperatures in the Chesapeake Bay watershed are projected to increase by 4.5 to 10 degrees, posing a serious risk of heat stress to farmworkers and livestock.
Daniel Farber | June 18, 2020
On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.
Thomas McGarity | June 17, 2020
Governments and industries are "reopening" the economy while COVID-19 continues to rage across the United States. At the same time, the lack of effective, enforceable workplace health and safety standards puts workers and the general public at heightened risk of contracting the deadly virus. In a new report from the Center for Progressive Reform, Sidney Shapiro, Michael Duff, and I examine the threats, highlight industries at greatest risk, and offer recommendations to federal and state governments to better protect workers and the public.
Katlyn Schmitt | June 16, 2020
On June 9, the House Energy and Commerce Committee's Subcommittee on Environment and Climate Change held a remote hearing, “Pollution and Pandemics: COVID-19’s Disproportionate Impact on Environmental Justice Communities.” The Center for Progressive Reform, joined by Fair Farms, Sentinels of Eastern Shore Health (SESH), and the Sussex Health and Environmental Network submitted a fact sheet to subcommittee members outlining the impacts of COVID-19 on the Delmarva Peninsula, along with a number of recommendations for building a more sustainable model for the region. The area is home to a massive poultry industry, hit hard by the coronavirus pandemic. We addressed several of the most severe problems in our fact sheet.
Michael C. Duff | June 15, 2020
While I suspect that workers' compensation claims, even without the aid of workers' compensation causation presumptions, may fare better than some actuaries suspected (preliminary scuttlebutt of about a 40 percent success rate is higher than I expected), there is no reasonable doubt that large numbers of workers will ultimately go uncovered under workers' compensation during the COVID-19 pandemic.