All posts by Kit Case

Workers' Compensation

Olympia, WA Roofing Company Cited 7th Time for Safety Violations

The Washington State Department of Labor & Industries (L&I) has cited an Olympia roofing company for the seventh time in recent years for safety violations involving fall protection for roofers.

The Roof Doctor Inc., was cited for six willful violations and one serious violation, with total proposed penalties of $219,600. Each of the six willful violations carries a penalty of $36,000, and the serious violation has a penalty of $3,600.

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 an intentional disregard to a hazard or rule.

“Falls from elevation are the leading cause of Washington’s worker fatalities and immediate hospitalizations, and they are fully preventable,” said Anne Soiza, assistant director for L&I’s Division of Occupational Safety and Health. “The tragedy, pain and suffering from these incidents are completely unnecessary for the workers’ families and friends and our communities.”

The Roof Doctor inspection began on April 11 when an L&I safety compliance officer observed employees working on a rooftop at an Olympia-area residence without proper fall protection equipment. The investigation found that five workers were exposed to falls from as high as 17 feet while engaged in various roofing activities.

The employer has appealed the citation. The appeal will be heard by the Board of Industrial Insurance Appeals, an independent state agency separate from L&I.

Penalty money paid as a result of a citation is placed in the workers’ compensation supplemental pension fund, helping injured workers and families of those who have died on the job.

 Photo credit: Jorbasa / Foter / CC BY-ND

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Former workers, whistleblowers shed light on nuclear site safety setbacks

Today’s post was shared by Gelman on Workplace Injuries and comes from america.aljazeera.com

RICHLAND, Wash. – On the banks of the Columbia River, miles of open land sit undeveloped behind barbed wire fences. A handful of mysterious structures dot the landscape, remnants from the early days of the Cold War. Passing by the old Hanford nuclear production complex can feel like a journey into the past.

Known simply as Hanford, workers here produced plutonium for the world’s first atomic bomb and for many of the nation’s current nuclear warheads. The site was first developed in 1943 as part of the Manhattan Project and ceased plutonium production nearly 50 years later, leaving behind 53 million gallons of highly radioactive waste. Spanning 586 square miles, it is now ground zero for the largest cleanup project in America.

For 27 years, Mike Geffre was part of that effort, working in an area known as the tank farms: 177 massive underground storage tanks, which hold up to 1 million gallons each of the country’s most toxic nuclear waste. 

A crack in the shell

First built in the 1940s, many of the original single-shell tanks leaked and contaminated the local groundwater. But starting in the 1960s, the federal government built stronger double-shell tanks that were supposed to hold the waste securely until it could be treated and sent to a deep geological repository for final keeping. Geffre, who maintained instruments used to monitor chemical and radioactive waste, spent much of his time looking for leaks in the supposedly unleakable tanks.  

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Florida Statute Deeming Workers’ Compensation an Exclusive Remedy Declared Unconstitutional by 11th Circuit Trial Court

Today’s post was shared by Workers Comp News and comes from www.jdsupra.com

On Wednesday, August 13, 2014, 11th Circuit Trial Judge Jorge E. Cueto entered a Summary Final Judgment Order declaring the exclusive remedy provision of the Workers’ Compensation Act (the Act) unconstitutional. In Julio Cortes v. Velda Farms LLC (Case No. 2011-13661-CA-25 in Circuit Court of the 11th Judicial Circuit in and for Miami-Dade County; also captioned Florida Workers’ Advocates, Workers’ Injury Law & Advocacy Group, Elsa Padgett v. State of Florida, Office of the Attorney General), petitioners asked the court to decide if injured workers should have the right to pursue damages outside of the workers’ compensation system, thereby negating the exclusive remedy principle. Judge Cueto agreed and further stated that the current workers’ compensation law did not provide adequate benefits compared with the tort system. Petitioners included Florida Workers’ Advocates (FWA) and the Workers’ Injury Law & Advocacy Group (WILG). WILG is a national organization of attorneys representing injured workers. FWA is an organization of attorneys representing injured workers in Florida.

The complaint for damages was originally brought by an employee against an employer based on the alleged negligence of the employer. The affirmative defense of workers’ compensation immunity under Fla. Stat. §440.11 was timely raised. The complaint was later amended to add Count IV, seeking declaratory relief that Fla. Stat. §440.11 (the exclusive remedy…

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Communication Towers

Today’s post was shared by US Dept. of Labor and comes from www.osha.gov

Prior to the 1980s, communication and broadcast tower erection, servicing and maintenance was a very small and highly specialized industry. Over the past 30 years, the growing demand for wireless and broadcast communications has spurred a dramatic increase in communication tower construction and maintenance.

In order to erect or maintain communication towers, employees regularly climb towers, using fixed ladders, support structures or step bolts, from 100 feet to heights in excess of 1000 or 2000 feet. Employees climb towers throughout the year, including during inclement weather conditions.

Some of the more frequently encountered hazards include:

  • Falls from great heights
  • Electrical hazards
  • Hazards associated with hoisting personnel and equipment with base-mounted drum hoists
  • Inclement weather
  • Falling object hazards
  • Equipment failure
  • Structural collapse of towers

In 2013, OSHA recorded a total number of 13 communication tower-related fatalities. In the first half of 2014, there have already been nine fatalities at communication tower worksites. This represents a significant increase in fatalities and injuries from previous years, and OSHA is concerned at this trend. OSHA is working with industry stakeholders to identify the causes of these injuries and fatalities, and to reduce the risks faced by employees in the communication tower industry.

Compliance Assistance

  • No more falling workers. OSHA focuses on protecting cell tower employees after increase in worksite fatalities….

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In Cities Across the Country, Opportunity is Making a Comeback

Today’s post was shared by US Dept. of Labor and comes from social.dol.gov

New York City just became the most recent city in the nation to answer President Obama’s call to raise wages for working families.

Last Tuesday, alongside Labor Secretary Perez, I signed an executive order immediately raising our living wage to $13.13. Workers at companies receiving more than $1 million in City subsidy will benefit from the new living wage, building on the Fair Wages for New Yorkers Act passed into law by the City Council in 2012. And because we expanded the universe of workers affected by the law to include tenants at City-backed projects, some of our lowest paid New Yorkers—fast food workers and retail workers—will finally earn a wage that can support a family. All told, we estimate the provision will cover up to 18,000 workers over the next five years.

We came into office this past January with a mandate and an agenda to confront inequality. We pledged to expand paid sick leave for more New Yorkers—and working in partnership with the New York City Council we did, reaching a half million more people. We pledged an ambitious affordable housing plan, and after-school programs and full-day pre-K that give children opportunity and help parent work—and we’ve launched each of them successfully. Next year, I intend to work alongside Governor Andrew Cuomo to pass a $10.10 minimum wage for New York State, with a provision to allow cities like ours, where the cost of living is high, to raise the minimum wage even higher.

And when…

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Longshore

Ports of Seattle and Tacoma Form Seaport Alliance

Unified management structure targets increased marine cargo, addresses competitive threats.

The Seattle and Tacoma port commissions plan to unify the management of the two ports’ marine cargo terminals and related functions under a single Seaport Alliance in order to strengthen the Puget Sound gateway and attract more marine cargo for the region.

The Seaport Alliance will manage marine cargo terminal investments and operations, planning and marketing, while the individual port commissions will retain their existing governance structures and ownership of assets.

This unprecedented level of cooperation between the state’s two largest container ports is a strategic response to the competitive pressures that are reshaping the global shipping industry.

Taken together, marine cargo operations at both ports support more than 48,000 jobs across the region and provide a critical gateway for the export of Washington state products to Asia.

“The ports of Seattle and Tacoma face fierce competition from ports throughout North America, as shipping lines form alliances, share space on ever-larger vessels and call at consolidated terminals at fewer ports,” said Port of Tacoma Commission President Clare Petrich. “Working together, we can better focus on financially sustainable business models that support customer success and ensure our ability to reinvest in terminal assets and infrastructure.”

“Where we were once rivals, we now intend to be partners,” said Stephanie Bowman, co-President of the Port of Seattle Commission. “Instead of competing against one another, we are combining our strengths to create the strongest maritime gateway in North America. The Seaport Alliance is the result of our shared commitment to maintaining the economic health of our region through a thriving maritime industry.”

The Seaport Alliance is the outgrowth of talks held under the sanction and guidance of the Federal Maritime Commission (FMC), the independent federal agency responsible for regulating the U.S. international ocean transportation system.

Subject to further FMC review and approval, the two port commissions will enter into an Interlocal Agreement (ILA), which is intended to provide the ports with a framework for a period of due diligence to examine business objectives, strategic marine terminal investments, financial returns, performance metrics, organizational structure, communications and public engagement. Following the due diligence period, the two port commissions intend to submit a more detailed agreement for the Seaport Alliance to the FMC by the end of March 2015.

During the due diligence period, John Wolfe, Port of Tacoma CEO, and Kurt Beckett, Port of Seattle Deputy CEO, will co-lead the planning work and coordinate with both port commissions.

Commissioners from both ports expect to hold a public meeting next spring to hire Wolfe as the CEO of the Seaport Alliance following the FMC’s approval of the agreement.

The two commissions expect to formally adopt and move to submit the ILA to the FMC at a joint public meeting Oct. 14.

Citizen and stakeholder public review of this proposal will be undertaken throughout the due diligence period. Information about public meetings, how to submit written comments and other related news will be regularly updated on the Port of Tacoma and Port of Seattle websites.
 

 Photo credit: Hollingsworth / Foter / CC BY-SA

 

Uncategorized

Those Lazy Jobless

Today’s post was shared by Gelman on Workplace Injuries and comes from www.nytimes.com

Last week John Boehner, the speaker of the House, explained to an audience at the American Enterprise Institute what’s holding back employment in America: laziness. People, he said, have “this idea” that “I really don’t have to work. I don’t really want to do this. I think I’d rather just sit around.” Holy 47 percent, Batman!

It’s hardly the first time a prominent conservative has said something along these lines. Ever since a financial crisis plunged us into recession it has been a nonstop refrain on the right that the unemployed aren’t trying hard enough, that they are taking it easy thanks to generous unemployment benefits, which are constantly characterized as “paying people not to work.” And the urge to blame the victims of a depressed economy has proved impervious to logic and evidence.

But it’s still amazing — and revealing — to hear this line being repeated now. For the blame-the-victim crowd has gotten everything it wanted: Benefits, especially for the long-term unemployed, have been slashed or eliminated. So now we have rants against the bums on welfare when they aren’t bums — they never were — and there’s no welfare. Why?

First things first: I don’t know how many people realize just how successful the campaign against any kind of relief for those who can’t find jobs has been. But it’s a striking picture. The job market has improved…

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Legislation, Working People

Protecting Workers from being Destroyed by the Work Schedule

Senator Tom Harkin

Today’s post comes from guest author Paul J. McAndrew, Jr., from Paul McAndrew Law Firm.

I wrote the post below as an editorial in the Iowa City Press-Citizen. Because The Scheudles That Work Act is of national importance I want to make sure this issue receives the attention that it deserves by promoting awareness of it as broadly as possible. I hope you’ll take the time to read my editorial and pass it along to concerned citizens in your area.

Workers deserve some certainty in their work schedules. Why? Because we all have need to plan for child care, time for school, transportation, or simply time to pay bills and manage the household. It’s basic fairness.

But don’t you, a friend or an acquaintance work a job with unpredictable and irregular work schedules? You’ve probably noticed that irregular and on-call scheduling are increasingly common. It’s especially common in the fastest-growing areas of our economy—- cleaning, janitorial, retail and restaurant work.

These scheduling practices can devastate the worker and her/his family. The practices demand the worker choose between his job or his family. They often lead to the worker being fired.

Vermont and San Francisco have already passed laws to help employers and workers avoid this devastation.

Senator Tom Harkin has now proposed The Schedules That Work Act to help workers balancework duties with family duties. The Act helps both workers and employers by:

  • Protecting all employees from retaliation for requesting a more flexible, predictable or stable schedule.
  • Creating a process under which an employer considers a worker’s schedule request in a way that’s sensitive to the needs of the worker and her/his family. For example, schedule requests based on caregiving duties, health conditions, pursuing education or the need to meet the demands of a second job, must be granted, unless the employer has a good business reason for denying it.
  • Compensating retail, food service, and cleaning workers for at least four hours of work if an employee reports to work when scheduled for at least four hours but is sent home early.
  • Providing that retail, food service, and cleaning employees receive work schedules at least two weeks in advance. Though schedules may later be changed, one hour’s worth of extra pay is required for schedules changed with less than twenty-four (24) hours’ notice.
  • Providing workers an extra hour of pay if scheduled to work split shifts or non-consecutive shifts, within a single day.

Kudos to Senator Harkin! Some politicians and billionaire-driven PACs parrot “Iowa values” as a campaign slogan. Senator Harkin, on the contrary, uses those values to create legislation like the ADA and The Schedules That Work Act.

Fraud, Workers' Compensation

Are You Really an Independent Contractor?

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

“Calling a dog’s tail a leg does not make it a leg.” Abraham Lincoln

FedEx drivers recently won two class-action lawsuits in the 9th Circuit Court of Appeals. The court ruled that FedEx wrongfully withheld overtime pay, Social Security, unemployment, Medicare and other benefits to drivers because they were misclassified as independent contractors rather than employees. The decisions were driven by the fact that FedEx exercised control over the appearance of drivers as well as what packages to deliver, on what days, and at what times.

Though the FedEx decision only applies to Oregon and California, it is very possible that a similar decision would have been made under Nebraska law. Under the Nebraska Wage Payment and Collection Act as well as under the Employment Security Law, Neb. Rev. Stat. 48-601 et al., there is a five-part test as to whether a worker is an independent contractor or employee.

  1. Individual is free from control or direction under contract of hire
  2. Individual is free from control or direction as a matter of fact
  3. Service is outside the usual course of business for which service is performed
  4. Such service is performed outside of all the places of business of the enterprise which such service is performed
  5. Individual is customarily engaged in an independently established trade, business or profession.

Nebraska law creates a presumption of an employer-employee relationship. Tracy v. Tracy, 581 N.W. 2d 96, 7 Neb. App. 143 (Neb. Court of Appeals, 1998) In short, if you can answer most of those questions “no,” you are very likely an employee rather than an independent contractor. The mere fact that you may have signed a documents stating you are independent contractor does not necessarily mean you are an independent contractor.

In addition to protections under federal law, asking questions about your employment status is also a protected activity under Nebraska law. Being misclassified as an independent contractor could cost you thousands of dollars in wages and benefits. However, you have the ability to fight back if you are being misclassified.

Uncategorized

Leap of Bad Faith: TPAs May Be Sued for Aiding Their Own Actions

Today’s post was shared by Workers Comp News and comes from www.jdsupra.com

Picture of a Contortionist
TPAs May Be Sued for Aiding Their Own Actions

Insurers have a duty to process claims in good faith, but sometimes they farm the job out to third-party administrators (TPAs).  If the TPA fouls up, many states hold that the insurer is still liable—for its own breach of duty, even if a doctrine of vicarious liability does not apply.  The rule is summed up in the statement that the duty of good faith is not delegable; the insurer must either handle the claim in good faith or cause someone else to do so.

But what about the TPA?  If the insurer’s duty can’t be delegated, what duty can a dissatisfied insured claim that the TPA has breached?  In Temple v. Hartford Ins. Co. of Midwest, No. CV-12-2357 (D. Ariz. Aug. 26, 2014), a federal court in Arizona came up with a novel solution:  the TPA may be liable for aiding and abetting the acts that constituted the breach of duty—by committing those very acts.

The Facts

Brenda Temple, a customer service representative for Stanley Steemer, was walking to her duty station when she tripped and fell down the stairs.  The fall resulted in injuries to Temple’s knee, hip and back.  Temple consulted a nurse practitioner, who gave her a knee brace and issued a work restriction for twenty days.  The nurse practitioner found that, due to worsening pain, Temple was unable to sit at a desk, walk up stairs or stand for long periods.

The Hartford is Stanley Steemer’s workers’…

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