coronavirus-pixabay-mask-wide.jpg
July 2, 2020 by Michael C. Duff

Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

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 …

June 19, 2020 by Katie Tracy
SupremeCourtOverview-SCOTUSFlickr-04302-wide.jpg

Until this week, laws in a majority of U.S. states permitted some form of employment discrimination based on sexual orientation or gender identity. That was no oversight on the part of state legislatures or the U.S. Congress. It was instead the product of virulent right-wing opposition to the recognition of the fundamental rights of members of the LGBTQ+ community. Not only did they oppose laws to protect against discrimination, they raised untold millions of dollars over the years boasting about it and used anti-gay ballot initiatives as a tool to inflame passions and draw out arch-conservative voters.

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 …

June 18, 2020 by Darya Minovi
farmworkers-ca-strawberry-field-wide.jpg

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.

As the post discusses, rising temperatures can hurt farms in several ways. Warmer temperatures make for a longer growing season, which may temporarily promote higher crop yields but can also stress water resources and result in additional fertilizer application, which is not what the doctor ordered for the Bay’s nutrient …

June 17, 2020 by Thomas McGarity
Workers_in_a_Hog_Plant_GAO-wikicommons-wide.jpg

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.

In many essential industries, the coronavirus risk is particularly acute because of the nature of the work and of the workplaces in which it is conducted. The lack of enforceable, pandemic-specific protections for workers and the hodgepodge of industry responses heighten this danger to workers. Industries affected range from health care to meatpacking, transportation to warehousing.

Heaping injustice on top of danger, coronavirus-related hazards …

June 16, 2020 by Katlyn Schmitt
PoultryProcessingUSDAFlickr-wide.jpg

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, including the following.

Public Health Harms from 'Depopulation'

Because of pandemic-driven staffing shortages, approximately 2 million chickens in the region, likely more, have been killed without having been processed into consumer-ready meat. According to the industry, once …

June 15, 2020 by Michael C. Duff
coronavirus6-pixabay-wide.jpg

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.

As I have argued throughout my postings on this blog, workers' compensation exclusions and denials will pose many challenging legal questions. In the meantime, however, many disabled workers will simply find themselves uncompensated (some may receive assistance under the Federal Pandemic Unemployment Compensation Program; eligibility is tricky, however, because under state unemployment compensation law an individual must generally be available for work – and not disabled – in order to qualify, a topic beyond the scope of this post).

In short, there are gaps and fissures appearing under state workers' compensation …

June 11, 2020 by Katie Tracy, Brian Gumm
face-mask-worker-pixabay-wide.jpg

In a June 11 order, the D.C. Circuit Court of Appeals denied an AFL-CIO writ of mandamus asking the court to compel the Occupational Safety and Health Administration (OSHA) to do more to protect workers from infectious diseases, such as COVID-19. The order continues the dangerous status quo of workers laboring with no enforceable protections from the highly contagious and deadly virus.

On March 6, the AFL-CIO petitioned OSHA to develop an emergency temporary standard to address the significant hazards of COVID-19 infection in the workplace, followed by a permanent standard to continue safeguarding workers from infectious diseases. From health care, to meatpacking plants, to warehouses, and a variety of other workplaces, employers have not done nearly enough to protect workers from the pandemic. This has resulted in infections, deaths, and enormous economic damage. Despite the grave dangers COVID-19 poses to workers, their families, and their …

June 3, 2020 by Michael C. Duff
WorkerSafetyCollage_wide.jpg

For decades, commentators have complained about how long it can take for workers attempting to unionize to simply get an election in which workers make an up-or-down decision on whether to form a union. For many years, employers were able to raise hyper-formalistic legal arguments that took so long to resolve that the employees initially interested in forming a union had often moved on to other employment. In far too many cases, employers also unlawfully coerce workers during the delay, and those workers eventually withdraw their support for the union.

After much internal political wrangling, the National Labor Relations Board (NLRB) enacted a series of new election procedures in 2014 meant to accomplish a simple objective: to get interested employees to a union election first and then (if necessary) address the typical mountain of anti-worker legal challenges. Prior to the changes, many of these challenges were adjudicated …

June 1, 2020 by Matt Shudtz, David Flores, Matthew Freeman, James Goodwin, Brian Gumm, Catherine Jones, Darya Minovi, Katlyn Schmitt, Katie Tracy, Robert Verchick, Robert Glicksman, Alice Kaswan, Thomas McGarity, Joel Mintz, Sidney Shapiro, Amy Sinden
george-floyd-murder-protest-dc-01-wide.jpg

Staff and Board members of the Center for Progressive Reform (CPR) denounce the murder of George Floyd by Minneapolis police officer Derek Chauvin on Memorial Day. We stand with the peaceful protestors calling for radical, systemic reforms to root out racism from our society and all levels of our governing institutions and the policies they administer.

CPR Member Scholars and staff are dedicated to listening to and working alongside Black communities and non-Black people of color to call out racism and injustice and demand immediate and long-lasting change. Racism and bigotry cannot continue in the United States if our nation is to live up to its creed of life, liberty, and the pursuit of happiness for all.

CPR's vision is thriving communities and a resilient planet. That ideal animates all of our work, but systemic sources of inequality and injustice stand as massive barriers to the realization …

May 21, 2020 by Michael C. Duff
mcdonalds-public-domain-wide

A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19 (see here and here). The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle: The negligence action is pursued against both franchisor-McDonalds (McDonald's USA) and certain of McDonald's franchise restaurants (McDonald's Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers' compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant. This is perfectly sensible.

It will be politically …

CPR HOMEPAGE
More on CPR's Work & Scholars.
July 2, 2020

Will COVID-19 'Shock' Workplace Injury Law Like the Railroads of the Early 20th Century?

June 19, 2020

Supreme Court Affirms Title VII Protections for LGBTQ+ Community

June 18, 2020

The Climate Crisis and Heat Stress: Maryland Farms Must Adapt to Rising Temperatures

June 17, 2020

OSHA, Other Agencies Need to Step Up on COVID-19, Future Pandemics

June 16, 2020

Environmental Justice Impacts of COVID-19 on the Delmarva Peninsula

June 15, 2020

Pandemic Heroes Compensation Act of 2020: Preliminary Observations on the Proposed Bill

June 11, 2020

Court Order Okays OSHA Inaction on COVID-19