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Age Discrimination Claims in Workers’ Compensation Settlements?

Today’s post comes from guest author Anthony L. Lucas, from The Jernigan Law Firm.

When an employee settles a workers’ compensation claim, the employer often wants to terminate the employee and is cautious because of potential age discrimination. The Age Discrimination in Employment Act (ADEA), 29 U.S.C. 621 et seq. (2015), prohibits companies with 20 or more employees from discriminating against a person (40 years of age or older) because of his or her age with respect to any term, condition, or privilege of employment, including hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training.

An individual who has been discriminated against because of his or her age may be entitled to back pay, reinstatement, hiring, promotion, front pay, liquidated damages, and court costs and attorney fees.

To avoid potential discrimination claims after a workers’ compensation settlement, the employer often seeks an ADEA waiver at the same time. For an ADEA waiver to be enforceable, it must:

  • Be in writing and understandable;

  • Specifically refer to ADEA rights or claims;

  • Not waive an individual’s future rights or claims;

  • Be in exchange for valuable consideration in addition to anything of value to which the individuals is already entitled;

  • Advise the individual to consult with an attorney before signing the waiver;

  • Provide the individual with a certain amount of time to consider the agreement:

    • 21 days for individual agreements

    • 45 days for group waiver agreements

    • A “reasonable” amount of time for settlements of ADEA claims

  • Provide a period of at least 7 days following the execution of the agreement, in which the agreement is not effective or enforceable, in which the individual may revoke the agreement.

Some termination agreements may not be enforceable, and the individual may have a valid claim to pursue under the ADEA.

Creation of the North Carolina Workers’ Compensation Opioid Task Force

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Raleigh,NC(WorkersCompensation.com) – Chairman Charlton L. Allen of the North Carolina Industrial Commission is pleased to announce the creation of a Workers’ Compensation Opioid Task Force that will study and recommend solutions for the problems arising from the intersection of the opioid epidemic and related issues in workers’ compensation claims. “Opioid misuse and addiction are a major public health crisis in this state,” said Chairman Allen. “Many injured workers are prescribed opioid medications as part of treatment for their injuries, creating a nexus between the problems affecting the general population and the workers’ compensation system.”

In Session Law 2015-241, the General Assembly tasked the Industrial Commission with studying the potential implementation of a drug formulary in workers’ compensation claims filed by State employees. The Commission invested significant time and resources in the study and report, which was delivered to the General Assembly on April 1, 2016. The Commission’s report focused in part on the troubling issues of opioid misuse and addiction originating from or exacerbated by workplace injuries.

“It is the Commission’s responsibility to ensure that injured workers receive reasonable and necessary care for their injuries. As part of that responsibility, it is important for the Commission to understand how the opioid crisis interacts with workers’ compensation…

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Puyallup, WA Construction Co. fined for Repeated Safety Violations

Roof Trusses

A Puyallup construction company faces a large fine for numerous repeated safety violations that exposed workers to potential falls and other hazards at a residential construction site in Olympia.

The Washington State Department of Labor & Industries (L&I) has cited J & I Construction for 13 violations, including several that are considered willful and repeat-serious. The findings include penalties totaling $203,420.

The three willful violations, each with a penalty of $42,000, were for not providing proper fall protection to three employees who were working on the top edge of a wall nearly 20 feet off the ground. The company has been cited two other times for the same issue.

J & I was also cited for three repeat-serious violations for not having a plan outlining the fall hazards on the specific job, exposing workers to unguarded wall openings that they could fall through, and for not ensuring that workers didn’t stand or step on the top of a self-supporting ladder. Each violation carries a penalty of $21,000.

“Seven construction workers fell to their deaths last year in our state,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “Falls continue to be the leading cause of construction worker deaths and hospitalizations, and yet they are completely preventable by using proper fall protection and following safe work practices.”

The company was cited for two additional repeat-serious violations for not having railings on open-sided stairs to protect employees from falls ($5,600), and for not ensuring that employees wore hard hats where there was a danger of flying or falling objects ($4,200). They were also cited for a serious violation for not having safety springs on nail guns to protect against accidental discharges ($2,800).

The employer was cited for a third-time repeat-general violation with a $700 penalty for not conducting walk-around safety inspections, and a fourth-time repeat-general violation with a $1,120 penalty because no one onsite had a valid first-aid card. L&I also cited the company for two general violations that did not include monetary penalties. 

The inspection began in May when an L&I employee saw three workers exposed to fall hazards while installing trusses.

A serious violation exists in a workplace if there is a substantial probability that worker death or serious physical harm could result from a hazardous condition. A willful violation can be issued when L&I has evidence of plain indifference, a substitution of judgment or intentional disregard of a hazard or rule.

As a result of the willful and repeat-serious violations, J & I Construction is now considered a severe violator and will be subject to follow-up inspections to determine if the conditions still exist in the future.

The company has 15 business days to appeal the citation.

For a copy of the citation, contact DLI Public Affairs at 360-902-5413.

 

Photo credit: schani via Foter.com / CC BY-SA

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Sea-Tac Airport Hiring 76 Screeners, Good Pay and Benefits

The Port of Seattle is recruiting and hiring 76 workers to screen Sea-Tac Airport employees who enter the secured areas of the airport. Plans are to launch this new screening procedure this spring. 

Those who are hired for these new positions will receive competitive benefits and an hourly pay rate of $20.37. There will be three full-time shifts available, and the positions will be overtime eligible and represented by International Longshore and Warehouse Union Local 9.

Requirements include a high school diploma or GED; one year of operations, security or customer service experience; and the ability to earn a certification within 60 days and pass background checks and drug testing. 

Employee security screening is becoming common at large U.S. airports as a way to enhance security efforts, mitigate risks and protect employees and travelers. 

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Gorsuch, Chevron and Workplace Law

Judge Gorsuch

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employers and their attorneys are widely hailing President Trump’s nomination of 10th Circuit Court of Appeals Judge Neil Gorsuch to the U.S. Supreme Court. Part of the reason that management-side lawyers are praising Gorsuch is his position on Chevron deference. Gorsuch’s views on Chevron could affect how workplace laws are interpreted and how they apply to workers.

Chevron deference is a legal rule that a court will give the benefit of the doubt about the interpretation of the law to how the executive agency charged with enforcing that law understands the law. Gorsuch has criticized Chevron on separation of powers basis, stating that Chevron deference gives too much power to the executive branch at the expense of the legislative and judiciary branches. Recently, government agencies have been interpreting employment laws in a way that is more favorable toward employees. Recent rules issued by the Equal Employment Opportunity Commission regarding the Americans with Disabilities Act are a prime example.

Many workers who get hurt on the job are told that they must come back to work with no restrictions. Chevron deference could be a powerful legal tool for workers faced with such policies. The new EEOC regulations on the ADA outlaw 100-percent-healed policies or policies that require plaintiffs to return to work without restrictions. In the EEOC guidance on the issue, the EEOC cites Kaufman v. Peterson Health Care VII, LLC 769 F. 3d 958 (7th Cir. 2014) as an example of policies that they believe to be unlawful under ADAAA. This case represents a subtle but real shift from current 8th Circuit law as stated in Fjellestad v. Pizza Hut of America, 188 F. 3d 949, 951-952 (8th Cir. 1999) where the 8th Circuit joined other federal circuits that held that failure to engage in an interactive process in accommodating a disability was not per se discrimination, and that there was no duty to engage in the interactive process. The EEOC’s interpretations of the new regulations still require that a plaintiff be able to perform the essential functions of the job with or without reasonable accommodation.

But as indicated by Kaufman, courts may be less likely to dismiss cases before trial, or in legal terminology, to grant summary judgment, on the issue of whether a plaintiff could perform the essential functions of the job with or without accommodation if the defendant does not engage in an interactive process or summarily decides that an employee should not be allowed to return without restrictions.

The fact that there is a split between regional appellate courts, a so-called circuit split, over “100 percent healed” policies increases the chances that the U.S. Supreme Court will decide whether 100-percent-healed policies violate the ADA. Another issue where there is a circuit split that the U.S. Supreme Court will decide is the legality of mandatory arbitration clauses in employment agreements.

Many workers unwittingly give up their rights to have employment-law disputes heard in court when they agree to mandatory arbitration clauses as a term of employment. In D.R. Horton Inc., 357 N.L.B. No 184 (2012) the National Labor Relations Board ruled that mandatory arbitration clauses prohibited Fair Labor Standards Act collective action cases because they interfered with protected concerted activity under 29 U.S.C. §157 and 29 U.S.C. § 158. In Lewis v. Epic Systems, 823 F. 3d 1147, 1154 (7th Cir. 2016), the 7th Circuit struck down a mandatory arbitration clause partly based on giving Chevron deference to the NLRB’s decision in D.R. Horton. The 9th Circuit agreed with the 7th Circuit in Morris v. Ernst and Young, LLP, No 13-16599 (Aug. 22, 2016). Unfortunately for plaintiffs, the 8th Circuit disagreed with the D.R. Horton decision in Owen v. Bristol Care, 702 F. 3d 1050 (8th Cir. 2013).

If confirmed, Gorsuch would be unlikely to give much weight to the opinions of the EEOC or NLRB in interpreting employment laws. Chevron deference is an unpopular concept with pro-business conservatives. Recently, the GOP-controlled House of Representatives passed legislation that, if enacted, would abolish Chevron deference.

Conversely, Chevron deference is a popular concept with progressive employee and civil-rights advocates, as it allowed the Obama administration to expand employee protections in the face of a hostile Congress. But with the advent of the Trump administration and his immigration policies, progressives have a newfound appreciation for separation of powers.

Also, employee advocates probably will not like many of the new rules and regulations issued by Trump appointees such as Labor Secretary nominee Larry Puzder. A prospective abolition of Chevron could be helpful to challenging rules made by a Trump administration. An example from the last Republican administration is instructive. In 2007, the U.S. Supreme Court in Long Island Care at Home Ltd. v. Coke, 551 U.S. 158 (2007) gave Chevron deference to Bush administration rules to exclude home health aides from coverage under the FLSA. It was nine years later that the rule was overturned, giving Chevron deference to Obama administration rules regarding home health aides and the FLSA.

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A Dismantling of the Grand Bargain That Created Workers’ Compensation

Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.

This week marks the official start of the holiday season. It is a time for family and loved ones, and a time to reflect on the blessings that we have received in our lives. This week marks the countdown to a number of holidays including Christmas, Hanukah and Kwanzaa. Unfortunately for some people, however, the holiday season is fraught with anxiety, depression, illness and injury. Many people who sustain work-related injuries find that without their weekly salary, the holidays are a stark reminder of how their lives have changed dramatically. The inability to provide for even the basic necessities, let alone splurge on holiday presents, is a prescription for depression.

The Grand Bargain Premise of Workers’ Compensation laws in this country is that the employer, through their insurance carrier, is responsible to pay for injured workers’ medical treatment, lost wages, and permanent disability in exchange for injured workers giving up their rights to sue their employers for negligence. During the last couple of decades, Workers’ Compensation benefits have been under the continuous scrutiny of the Business Council, which has been alleging that the cost of benefits to injured workers is at the root of their increase in costs and reduction in profits.

However, a report from the National Academy of Social Insurance (NASI) indicates otherwise. Benefits as a percent of payroll declined in 46 states between 2010 and 2014, continuing a national trend in lower benefits relative to payroll that began in the 1990s. Costs to employers, on the other hand, continue to climb. Between 2010 and 2014, employer costs associated with Workers’ Compensation – such as insurance premiums, reimbursement payments, and administrative costs – grew at a rate nearly five times faster than benefits. Instead of using employers’ money to provide benefits for injured workers, insurance companies pay a host of businesses, including insurance medical examiners, nurse case managers, vocational rehabilitation companies and defense counsel, all of which profit from the system at the expense of workers and reap record profits for themselves. Meanwhile, the insurance industry and the Business Council falsely blame the claims of disabled workers so they can continue to increase profits by slashing benefits and shifting costs to taxpayer-funded programs instead of employer-paid insurance.

Benefits in New York have decreased under the current Workers’ Compensation system. The changes in the law in 2007 allowed higher wage earners to benefit in the short term as the amount of their weekly benefits has increased. However, these benefits are only available for a fixed period of time. If injured workers are able to return to work after a short period of lost time and a limited period of medical treatment, then some may say the system is a success. Unfortunately for many severely-injured high and low wage earners, the Grand Bargain wasn’t so grand. Medical providers’ hands are tied by Medical Treatment guidelines that limit the amount of treatment authorized based upon “best practices” or cookie cutter treatment, as opposed to what is recommended by the treating doctor. Now there is the prospect of limiting prescription medications as well, all in the name of cost reduction.

The reduction of medical treatment based on the treatment guidelines to injured workers should not imply they are fully recovered. Also, they don’t all return to work once they reach their indemnity cap. The cost of providing monetary benefits and medical treatment are shifted to the taxpayers to pick up the tab. Injured workers don’t expect that the very act of working will forever alter their lives in a negative way. Workers’ Compensation benefits are not a charitable donation, but an entitlement based upon a compromise between workers and their employers. Unfortunately, it is clear that these benefits have been gradually eroded. We should not allow any legislation that further erodes these benefits. While the holidays will continue to bring depression and despair for some injured workers, it should not be as a result of our treatment of them afterward.

 

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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WA DLI Begins Employer First Contact Call Pilot

As part of the Joint Legislative Audit Review Committee (JLARC) implementation L&I received approval from the Legislature to hire additional account managers to increase capacity for first calls to employers and to provide loss control support. The Employer Services Early Contact Team was formed in October 2016. This team is currently staffed with 4 account managers with the plan to hire 4 additional account managers in February 2017. 

The Early Contact Team began the Employer First Contact Call Pilot on Tuesday, December 27th. As a pilot, they started by calling on a small number of potential time-loss claims and plan to gradually expand over time. 

The Early Contact Team will ask the following questions of the employer: 

  • What was the workers’ last day worked? 
  • Has the worker returned to work? Or, is there a planned returned to work date? 
  • Is light duty available? 
  • Will the worker be kept on salary? 
  • Are the wages and health care benefits the worker listed on the ROA correct? 

The Early Contact Team will educate employers on: 

  • The claim free discount, if the employer has one. 
  • Long-term impacts of time-loss on the firm’s experience factor. 
  • The benefits of light duty jobs and options to obtain cost reimbursements through the Washington Stay at Work Program. 
  • Early return-to-work assistance to develop light duty jobs consistent with the worker’s restrictions. 
  • Risk management services or a safety and health consultation for accident prevention. 

The Early Contact Team will make referrals if indicated for: 

  • Washington Stay at Work Program 
  • Early Return to Work (ERTW) Services 
  • Risk Management Services 
  • Safety and Health Consultation Services 
  • Ergonomic Evaluations 

This means the Early Contact Team will be the first to contact employers, rather than the claim manager, in some instances. As a future phase of implementing the JLARC recommendations, we will improve the speed of claim manager first contacts on claims at risk of long-term disability and equip them with the tools to help partner with employers to reduce this risk. 

 

Photo credit: KayVee.INC via Foter.com / CC BY-NC-SA

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Why Immigration Policy Changes Will Probably Impact Workers Compensation

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

In theory, the changes to immigration policy proposed by President Trump shouldn’t impact workers compensation in Nebraska. Workers compensation laws are state laws and Nebraska, like most states, awards workers compensation benefits regardless of immigration status.

But theory is one things and reality is another.

Mike Elk of Payday Report recently ran an article detailing that workplace deaths among Latinos were the highest in 2015 than they had been since 2007. This spike was attributed in part to aggressive immigration enforcement by the Obama administration which immigrant advocates believed made workers afraid to speak out about working conditions over fear of deportation.

During the Obama administration tougher immigration policies were at least coupled with tougher and even innovative workplace safety enforcement by OSHA. In the Trump era, workplace safety enforcement is expected to be curtailed and new OSHA rules are poised to be rolled back.

Immigration and workers compensation is often thought of in the context of Mexicans and central Americans working in industries like meatpacking and construction. This is a misconception, the meatpacking industry in Nebraska and elsewhere employs an uncounted but significant number of Somali workers. Somalis are one of seven nationalities banned from entering the United States under President Trump’s order. Ironically Somalis were recruited heavily into meatpacking work after raids during the Bush administration lead to the deportation of Latino meatpacking workers. Somalis had refugee status so there were few questions about their immigration status or eligibility to work legally. Under the new executive order, their immigration status is less secure and they may be less likely to speak out about working conditions.

A smaller but growing number of Cubans are coming to Nebraska for meatpacking work as well. Like Somalis, Cubans are deemed to be refugees so their ability to work lawfully is not a question for employers. However in the waning days of Obama administration, President Obama ended automatic refugee status for Cubans in an effort to normalize relationship with the Castro regime. There was little public outcry over this order like there was for the so-called Muslim Ban. However because of an executive order, Cuban nationals working in Nebraska may be less inclined to speak out about working conditions or claim workers compensation benefits due to newfound uncertainty over their immigration status.

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Chemical Exposure in Chicken Plants

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Several members of Congress have written to Secretary of Labor Tom Perez, Secretary of Agriculture Tom Vilsack and Secretary of Health and Human Services Sylvia Burwell regarding the danger of the chemical PAA, which is used to sanitize chickens in poultry plants.

According to The Pump Handle blog written by occupational health expert Celeste Monforton, the increase in the use of PAA is linked to the Department of Agriculture’s “modernized inspection” system. Though meatpacking is well known for the prevalence of musculoskeletal injuries, chemical exposure is a less well-known, but similarly serious hazard, to meatpacking workers, which has been recognized by the Occupational Safety and Health Administration.

The hazards of chemical exposure are not limited to meat-processing workers. Chemical exposure fatalities are too common in rural America. Recently, a worker on an industrial cleaning crew in Beatrice, Nebraska, was killed from inhaling industrial cleaning chemicals. In October, a resident of northeast Nebraska was killed after inhaling chemicals from a leak in anhydrous ammonia pipeline. That same month, 125 residents of Atchison, Kansas, sought treatment for inhalation of chlorine gas from an explosion at a distiller.

While chemical exposure can often result in sudden death, ongoing exposure to chemicals can also create injuries that may not be apparent for years after the exposure. Unfortunately, Nebraska limits the ability of workers to recover for such injuries.

The letter about the hazards of PAA was written to outgoing cabinet members. The new Trump administration is expected to have a less-aggressive approach toward regulating the workplace. Hopefully the new administration will take the threat posed by hazardous chemicals in the workplace seriously.

Chicago Metal Container Manufacturer Faces Penalties After 3rd Worker Suffers Amputation Injury

Today’s post was shared by WC CompNewsNetwork and comes from www.workerscompensation.com

Chicago, IL (WorkersCompensation.com) – For the third time since the summer of 2015, a worker with a metal container manufacturer has suffered an amputation injury. In each incident, federal safety investigators found that, if the employer had complied with workplace safety standards, the injuries were preventable.

On Dec. 27, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration issued B-Way Corp. one repeated and one serious safety violation, carrying proposed penalties of $81,062, following its investigation of the most recent injury. On Sept. 10, 2016, a machine amputated a 52-year-old temporary worker’s right middle finger tip when it came in contact with the machine’s operating parts – as he cleared a jam.

Agency investigators determined the employer installed the machine’s safety guards improperly. They also found the company did not instruct workers properly in procedures to prevent machine movement during service and maintenance, a process known as lockout/tag out.

"Each year, manufacturing workers suffer hundreds of preventable injuries because employers fail to install safety guards properly and train workers in machine safety procedures," said Kathy Webb, OSHA’s area director in Calumet City. "BWay Corp. needs to review its machines’ operations corporate-wide immediately to ensure they have adequate and properly installed safety guards. They must also be sure that workers are using lockout/tag out procedures to…

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Published by Causey Wright