On June 5th, Brian visited our neighbors upstairs at GLP Attorneys to discuss workers’ compensation topics with members of their firm. Although our firms practice in different areas of the law, there are certain cases where our workers’ compensation focus overlaps with GLP’s cases, including personal injury cases involving automobile accidents, logging accidents or premises liability scenarios.
We appreciate the opportunity to collaborate. If you are interested in a similar presentation, please contact Brian to discuss your needs.
“Thanks for the great presentation today. Super helpful and the cites to case law are good resources, especially for some of our firm’s newer attorneys. I have already received good comments from staff that they learned a lot today. Really appreciate your work, and always enjoy working with you and your firm.”
Pictured above: Brian Wright with Alex French, John Webber and James Gooding of GLP Attorneys, P.S.
Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.
Temporary Help Employees Can Sue Their Employers? …. Well, maybe not.
The Wisconsin Court of Appeals considered the following issue: can a temporary help employee who was injured at work elect not to pursue a worker’s compensation claim and, instead, actually sue their employer in civil court? The Court said the answer is “YES.”
Wait….what?! That is not how the worker’s compensation system was supposed to work. Cue panic mode for employers who used temporary help employees. (or at least until the legislature “fixed” this).
The necessary background (and backbone) of the worker’s compensation system is the 100+ year old “grand bargain” between employers and employees. Employers agreed to provide smaller, defined benefits regardless of fault for the work injury, while employees gave up the right to tort damages (like pain and suffering) in exchange for those benefits. Thus, worker’s compensation became the worker’s exclusive remedy against the employer. A worker cannot sue their employer (or co-worker) for a work injury.
That exclusive remedy also extends to temporary help agency situations. Under the traditional interpretation of the worker’s compensation act, a temporary help employee is barred from any tort lawsuit against their employing temporary help agency and against the employer where they were placed/working. This was the interpretation…or so we thought.
In Estate of Carlos Esterley Cerrato Rivera v. West Bend Mutual Ins Co., the Court of Appeals allowed a temporary help employee’s tort lawsuit to proceed against the placed employer. The case arose from tragic and slightly convoluted facts. Three temporary help employees all died in a motor vehicle accident. All three were driving in the same car and performing services for Alpine Insulation (insured by West Bend Mutual). Mr. Rivera was a temporary help employee of Alex Drywall, who sent him to work for Alpine Insulation. Alpine, in turn, paid Alex Drywall for the services. The driver, whose negligence resulted in the accident, was also a temporary help employee, but of another employer.
Mr. Rivera’s estate did not pursue a claim for worker’s compensation death benefits. The estate instead sued the placed employer, Alpine Insulation, in circuit court for tort damages. Alpine and West Bend Mutual argued that the work comp exclusive remedy protects them from these types of lawsuits.
[Note: the facts are unclear about whether there was an “election” not to pursue a work comp claim. There could have been difficulties by the work comp carrier in determining if there were any eligible surviving dependents. There also could have been issues involving establishing the employment relationship with Alex Drywall. This is mere speculation, but it is interesting to think about how the case genesis]
The Court of Appeals interpreted the relevant statutes to allow the tort suit to proceed! Specifically, Section 102.29(6)(b)1. says that “no employee of a temporary help agency who makes a claim for compensation may make a claim … in tort against … any employer that compensates the temporary help agency for the employee’s services.” The Court ruled that because Rivera’s estate had never pursued a worker’s compensation claim, the statute actually allowed the tort suit.
Based on the immediate outrage and backlash in the employer community (and specifically the massive amount of employers who use temporary help employees), the Wisconsin legislature moved swiftly to “fix” this perceived loophole in the law. The legislature passed 2017 Wisconsin Act 139 (effective March 1, 2018). The Act amended the governing statutes in Section 102.29 to now state that “no employee of a temporary help agency who has the right to make a claim for compensation may make a claim … in tort against … any employer that compensates the temporary help agency for the employee’s services.”
Accordingly, for a fleeting moment, it appeared injured temporary help employees could elect to forego a work comp claim and maintain a civil lawsuit against their placed employers for pain and suffering. The legislature effectively restored and reiterated the exclusive remedy provision in temporary help agency situations. If a temporary help employee is injured on the job, worker’s compensation remains their only recourse against the temporary help employer and their placed employer.
Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.
Teachers in West Virginia won a victory for working people recently after a nine-day strike forced lawmakers and their Governor to raise the pay of all public employees by 5 percent, agree to fix problems with the state’s health insurance system and maintain other employee protections.
The victory for the West Virginia teachers came shortly after many pundits predicted the downfall of public sector unions in the wake of an expected unfavorable decision from the Untied States Supreme Court in the Janus case. Many commentators pointed out that West Virginia was already a “right to work” state where unions can not compel the employees they represent to pay dues.
The West Virginia teachers strike shows the power of collective action among employees. I have long advocated that employees exercise their rights under the National Labor Relations Act to work together to address the terms and conditions of their employment. Employees don’t need a union to exercise these rights. Collective action on the job can address bullying by a boss and can even help employees accommodate a disability.
The success of the West Virginia teachers seems to have encouraged teachers in Oklahoma to plan a strike as well. The example of the West Virginia teachers should also show employees that they can deal with smaller but no less serious issues with their employer or on their worksite.
Today’s post comes from guest author Catherine Stanton, from Pasternack Tilker Ziegler Walsh Stanton & Romano.
Some of you may recall that injured workers and their families were used as political scapegoats by big business and insurance interests who blamed them for the high cost of doing business in New York. Workers’ Compensation benefits became an easy target as those who needed these benefits were hardly in a position to fight against the deep pockets and political clout of these lobbying groups.
As a result of political pressure during New York State budget negotiations, there was a direction to update the existing impairment guidelines under the guise of reducing costs to employers while still protecting injured workers. The final budget contained a provision directing the Workers’ Compensation Board (WCB) to put together a task force with input from labor, the insurance industry, medical providers, and the NYS Business Council to revise impairment guidelines to reflect “advances in modern medicine that enhance hearings and result in better outcomes”. These impairment guidelines determine the amount of compensation payable to an injured worker for a permanent injury.
Unfortunately for injured workers, the WCB unilaterally revamped and rewrote the guidelines and released them during a holiday weekend with a 45-day public comment period. These proposed guidelines bore very little resemblance to the recommendations made by labor groups and the Orthopedic Society, and were an outrageous abuse of power. As a result of a very public outcry, the New York State Assembly Labor Committee held a public hearing during which it became very clear to labor groups, injured workers’ advocates, and members of the State Legislature that the Board’s egregious actions would result in a slashing of benefits to injured workers at a time when they are most vulnerable.
Public outcry led to action. Workers’ advocates showed up at a number of WCB locations across the state, including Hauppauge, Brooklyn, and Buffalo, for Days of Action. More than 100,000 postcards objecting to the proposed changes were delivered. Members of the Retail Wholesale and Department Store Union (RWDSU), the AFL-CIO, NYCOSH, New York City District Council of Carpenters, DC37, and countless others all publicly railed against these changes. Members of the Legislature called out the WCB for overstepping its authority and for proposing changes that would vastly favor the Business Council over the injured worker.
The Worker’s Comp Board subsequently issued amended revisions, and while there are still some reductions, it was a significant improvement over the initial version. The final version was released last year on December 29. It is clear that grassroots efforts sometimes do work. Governor Cuomo and the WCB Chair clearly listened, and for that we are grateful. We are also grateful to those State legislators, union groups, and medical providers who submitted their insight on the impact the original proposals would have on injured workers.
Lastly, it is clear that those who may have been past or current recipients of Workers’ Compensation benefits – those who have known injured workers or those who just saw an injustice and wanted to help right a wrong – took the time to make a phone call, send a letter, or sign a petition. The outpouring of support took many by surprise, including those interests that were financed by big business groups. One of my favorite quotes is from Margaret Mead, an American cultural anthropologist, who said, “Never doubt that a small group of thoughtful, committed citizens can change the world. Indeed, it is the only thing that ever has.” Truer words were never spoken.
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.
Menzies Aviation has notified the WA Employment Security Department that they will be laying off 63 workers in the state effective July 8th. Menzies Aviation provides ground support at Seattle-Tacoma International Airport.
The notification of this planned layoff does not specifiy what type of workers are being laid off. Menzies provides ground handling services at Sea-Tac, including baggage and ramp handling, passenger handling cabin appearance and de-icing services.
Menzies made the news in 2005 when, one week after the union rejected an offered contract, Alaska Airlines outsourced 472 baggage handling jobs to Menzies.
The decision came a week after union workers in Seattle and Alaska overwhelmingly rejected a contract offer that included pay and benefit cuts but also a guarantee of four years without outsourcing. The airline had warned since January that it might outsource the jobs if no agreement could be reached with the International Association of Machinists and Aerospace Workers (IAM) District 143. – The Seattle Times, May 14, 2005
The reason for the current round of layoffs was not clear at the time of this writing.
Seattle City Council member Teresa Mosqueda sponsored the bill to end subminimum wages. Courtesy of Jamie Rand Imaging/Jamie Colman
Paying low wages to people with disabilities is no longer allowed in Seattle. Seattle officials have eliminated what’s known as the subminimum wage, becoming one of the first cities in the nation to do so.
Since 1938 the U.S. Department of Labor has allowed certain employers to pay people with disabilities less than the federal minimum wage ($7.25 in 2018).
The Seattle City Council voted April 2 to prohibit subminimum wages by any employer in the city, and today Mayor Jenny Durkan signed it into law. The ban will go into effect May 13.
Marcie Carpenter at the National Federation of the Blind, Washington, testified to the City Council earlier this month that it was time to pay all workers the minimum wage.
“These kinds of laws were based on a 1930s mentality of disability: low expectations, few people were educated and even fewer people worked,” Carpenter said.
“Times have changed, there’s now supported employment programs like the one that the City of Seattle operates.”
She said the Federation of the Blind is starting to work toward banning subminimum wages at the state level.
The practice was intended to be an initial wage for people receiving job training, but the Federation said many workers end up with lower wages for years.
Seattle City Councilmembers Lisa Herbold and Teresa Mosqueda worked to pass the legislation.
Mosqueda said in a statement: “It’s already challenging to make ends meet for low-wage workers living and working in Seattle, and even more so if one is not afforded the right to earn at least the City’s minimum wage.”
It’s the first labor policy backed by Mosqueda to receive a unanimous vote from the City Council. Mosqueda has named labor and worker’s rights as some of her top priorities.
In 2017, falls were the leading cause of traumatic work-related fatalities in Washington State. The highest number of workplace deaths occurred in construction. The WA Fatality Assessment and Control Evaluation program (WA FACE) within SHARP tracks traumatic workplace fatalities in Washington, and has published its annual report for 2017.
Pam MacEwan, CEO of the Washington Health Benefit Exchange, issued the following statement on the signing of House Bill 2516 on March 13, 2018:
“The Washington Health Benefit Exchange applauds today’s signing of House Bill 2516 by Gov. Jay Inslee.
“This state-level legislation protects important progress made in Washington state under the Affordable Care Act. Our position as the state’s health insurance gateway is now stronger than ever, and despite continued uncertainty we may see at the federal level, this bill enables us to continue improving the customer experience for the people in our state.
“The bill’s removal of outdated requirements that no longer align with our current operations clears the way for the Exchange to better serve all residents of Washington state. This includes language that will allow us to innovate and operate in ways that allow our customers to connect with and maintain their health coverage. These changes also create opportunities for maximizing the state’s investment in the Exchange’s technology to further improve how people seek and receive health and health-related benefits.
“We would like to thank both the Governor and the Washington state Legislature for their support on the passage of this legislation. Their combined efforts have resulted in a significant achievement for the future of the Exchange and how we deliver health coverage to more than 1.8 million residents of our state.”
Crews install the tunnel’s last northbound roadway panel
Earlier this month, Seattle Tunnel Partners installed the last of the 1,152 road panels that together form the tunnel’s lower (northbound) roadway. A double-deck highway now runs nearly two miles end to end inside the tunnel. Our new video shows a special crane lifting the final panel into place.
New video shows “smart” systems in SR 99 tunnel
Seattle Tunnel Partners is now installing and testing the tunnel’s operational and safety systems. Inside the tunnel there will be more than 300 cameras to monitor traffic and security at all times, automatic ventilation systems designed to keep air quality and visibility high, and automated sprinkler systems designed to put out a fire quickly. Together, these new systems will make the SR 99 tunnel one of the “smartest” tunnels ever built. This new video explains how the critical air quality and fire safety systems work together.
Thousands of components that make up the tunnel’s safety and operational systems will be tested at least three times. After the systems are verified, STP will hand the tunnel over to the Washington State Department of Transportation so a different contractor can realign SR 99 and build the final ramp connections to and from the tunnel. Stay tuned to our website for more updates as work progresses.
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If you would like to receive updates on viaduct demolition, please send an email to viaduct@wsdot.wa.gov and ask to receive updates on demolition work. We will use this email list in the months ahead to share information about the work.
