If you are a Washington resident working for an employer who operates in Washington and you are injured in another state, you probably have a Washington State workers’ compensation claim. Additionally, you might have a valid claim in the other state, as well. If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.
If you are injured outside Washington, or whatever state in which you normally work, it is important to evaluate your options and file wherever you might have a legitimate claim. It is possible that you have remedies available to you in more than one state.
In Washington, we have agreements with other states that provide which state’s workers’ compensation laws apply when an employer takes its employees out of state. Those agreements apply to the workers of one state working temporarily in the other state. Washington currently has such agreements with Idaho, Montana, Nevada, North Dakota, Oregon, South Dakota, Utah, and Wyoming. If you are a Washington worker sent temporarily by your employer to one of those states and you are injured there, Washington is likely the only state in which you can file a workers’ compensation claim. Conversely, if you are an employee based out of one of the states with which Washington has an agreement and you are injured while working temporarily in Washington, your home state is likely the only state in which you can file a claim.
But what happens if you are not simply temporarily working in one of the states with which Washington has an agreement? What if you spend a significant amount of time in both, or even other, states? What if your employer is based in one state and you are based in another? Or better yet, what if you are injured in a state with which Washington has no agreement? In all of the above scenarios, you may have the ability to file your claim in multiple states. Generally, you will have the option of filing in:
1) the state in which you were injured;
2) the state in which you primarily worked; and
3) the state in which you entered into your employment contract.
Yes, and. The United States Supreme Court, in a case that settled the law once and for all back in 1980, decided that filing multiple workers’ compensation claims in multiple states does not violate the Constitution so long as each state’s system is credited for the benefits paid by the other states’ systems. In other words, you cannot be compensated twice for the same injury, but you can elect to file in multiple states in order to maximize the benefits that each state provides. Washington State, by law, explicitly allows you to file multiple claims in multiple states.
With an option of two or more states that might provide coverage, you may wish to select the state with the benefit program that better suits your financial situation and your needs.
It is important to know your rights when you are injured on the job out of state, because the decision as to where to file your claim will have a direct impact on you and your family. Each state has a unique workers’ compensation system with a full spectrum of benefits, compensation rates, etc… With an option of two or more states that might provide coverage, you may wish to select the state with the benefit program that better suits your financial situation and your needs.
If you have been injured out-of-state, or while traveling in service of your employer, it is important to contact a workers’ compensation professional to assess your options.
The number of worker’s compensation claims has dropped dramatically
Today’s post comes from guest author Charlie Domer from The Domer Law Firm.
The Wisconsin Association of Worker’s Compensation Attorneys (WAWCA) just held its tenth annual worker’s compensation seminar in Madison, Wisconsin. (I presented the annual case law update.) A report on the economic health of Wisconsin worker’s compensation (presented by a colleague on the defense side, Paul Riegel) noted reported worker’s compensation claims have dropped from 55,000 in 2001 to less than 35,000 in 2011. Based upon the first five months of 2012 reporting, 30,000 reported claims are anticipated to be made in 2012.
Applications for hearing on those claims have also diminished, from 7,000 in 2001 to about 5,500 in 2011. Again based upon projections, the 2012 number of Applications for Hearing will be about 5,600.
Several potential explanations for this drop were provided including:
The days of asbestosis, silicosis, and similar disease may have ended due to the aging population of those of exposed before the implementation of OSHA in 1970 and the lessening amounts of these substances in the workplace.
Employers argue that workplaces are simply safer, resulting in lesser claims.
The safer workplaces argument is rebutted by employee and Union data that fewer people are willing to make claims in a depressed economy for fear of losing their jobs. While Wisconsin law assesses a “one year’s wages” penalty against an employer who fires or refuses to rehire an injured worker, in tough economic times, that may not be a risk an injured worker is willing to make. Anecdotal evidence from a variety of sources indicates viable claims, specifically for “wear and tear” type injuries are simply not being made.
The impact of extending Unemployment Compensation benefits from its initial 26 weeks through multiple extensions may diminish worker’s compensation claims since another “safety net” exists. Additionally, the availability of Social Security may diminish worker’s compensation claims. General employment trends also suggest Continue reading Why Are Worker’s Comp Claims Down→
Today’s post comes from guest author Leonard Jernigan from The Jernigan Law Firm.
Wage theft is an issue we encounter all too frequently in our cases, particularly in situations with undocumented workers or others who may be paid “under the table.” They often have their wages under-reported to the Department of Labor and Industries, decreasing their compensation rate under the claim. It can be very difficult to prove the correct wage rate if insufficient documentation of payments exists.
Kim Bobo, the Executive Director of Interfaith Worker Justice and the author of “Wage Theft in America,” recently spoke at Duke Divinity School and then at N.C. Central University School of Law in Durham, N.C. Ms. Bobo, who was awarded the Pacem in Terris Peace Award in 2012 (other recipients are John F. Kennedy, Mother Teresa, and Martin Luther King, Jr.), has a simple reason for the work she does: as a person of faith, she recognizes injustice and seeks to correct it. Wage theft, which is defined as stealing from workers what they have rightfully earned, is not only illegal it is immoral. She is simply trying to get people to do something about it.
In September a $4 million settlement was announced by the Harvard Club of Boston for not paying tips to its staff.
At N.C Central law school, Bobo spoke to students about waiters not getting tips, even though the restaurant collected those tips when the bill was paid, and asked if anyone in the room had experienced that type of theft. Indeed, one student shared a story about working at an exclusive club in South Carolina where that practice was routine. After reporting the problem and getting nowhere, he finally gave up and quit. He is still bitter about it. In September, a $4 million settlement was announced by the Harvard Club of Boston for not paying tips to its staff. Small amounts can add up for the employer.
Bobo gave some action items to the audience that I wanted to share with you. She said we need to:
start recognizing the seriousness of the problem;
start getting attention about the problem in order to fix it;
stay focused; and
if necessary, cross of the lines of our comfort zone.
For more information about Interfaith Worker Justice, go to: www.iwj.org/
The Nation Magazine reports today in their “E-Mail Nation” communication that Walmart has filed a National Labor Relations Board charge against the United Food & Commerical Workers Union alleging that the pickets are illegal and asking for a judge to shut them down, weeks into a wave of historic strikes, and days before a planned Black Friday showdown. This also coincides with recent news reports that Walmart is soon expected to offer stock dividends to their shareholders and at a time when stock prices have been hitting all-time highs, in spite of an international bribery scandal that is still unfolding.
An excerpt from the recent The Nation article, by Josh Eidelson:
Walmart’s letter to the UFCW accuses the union of “enlisting [workers] in orchestrated schemes to disrupt Walmart’s business operations by telling them that federal labor law protects their participation” in strikes that are in fact illegal, and thus could get them fired (the letter also alleges that the protests involve a range of crimes beyond those in the NLRB charge, including trespassing). A Walmart spokesperson drove a similar message home Sunday, telling CNN that if workers don’t show up on Black Friday, “there could be consequences.” The target audience for that statement, and for Walmart’s latest legal salvo, may not be the media, or the courts, or the UFCW, but the thousands of workers who want to see change at Walmart but have haven’t yet decided whether going on strike is worth the risk.
Today’s post comes from guest author Tom Domer from The Domer Law Firm.
We get calls every day from angry injured workers who want to sue their employer for negligence. It could be an employer removing a guard on a machine, a foreman ignoring a safety rule, or an injury caused by an employer’s failure to train an employee. Many employees are genuinely and bitterly disappointed when we explain a worker cannot sue his employer for negligence and that his only “exclusive” remedy is through worker’s compensation. In liability suits filed by hundreds of former pro football players who suffer from concussion-related injuries, the players claim the league negligently mislead them about the dangers of concussions. Attorneys for the injured players indicate it is likely the NFL will argue that football players should be covered exclusively by worker’s compensation.
The deal cut by employers and workers in Wisconsin in 1911 still stands: Employers give up the right to common law defenses (contributory and co-employee negligence, assumption of risk) for a fixed schedule of benefits; employees give up the right to sue their employer in tort (and to recover tort-like damages) in return for worker’s compensation benefits. No matter how nefarious the employer or how egregious the employer’s behavior (i.e., removing the guard to increase machine speed, etc.), the Exclusive Remedy provision applies.
However, claims against third parties (someone other than the employer) are still available to workers if the injury was caused by the negligence of someone other than the employer. In the NFL claims, for example, a helmet manufacturer Riddell is also a named party. Since Riddell was not an employer, that tort suit against the third party should be able to proceed despite the exclusive remedy of worker’s compensation. Most States, like Wisconsin, have a formula for paying back worker’s compensation if the employee succeeds in recovering against the third party.
When workers are misclassified, insurance companies do not consider them employees. The injured workers are then denied workers’ compensation benefits. Additionally, the insurance companies are not paid insurance premiums and are not adequately reserved for the risk of injury by those workers.
The following video excerpt is of an interview I did a while back with Sam Gold, director of the National Association of Injured Workers (NOIW) and producer of Injured On The Job. We discuss this continuing problem and the need for it be addressed by regulatory agencies so that workers’ and their families are protected from fraudulent employers.
Today’s post comes from guest author Charlie Domer from The Domer Law Firm.
Washington has mandated smoke-free workplaces for several years now. Although claims for medical conditions related to prior exposures are theoretically possible, meeting the criteria for having an allowable claim can be tough.
In Washington, occupational exposure claims of any type can be allowed if there is a link between a medical condition and a work exposure AND if the exposure represents a distinctive condition of employment. In other words, if many people across the general population have similar exposures then the claim would not be allowed.
Feel free to contact us to discuss your circumstances and see if a workers’ compensation claim is possible for you.
Recent article indicates some public health departments are offering incentives to create smoke-free policies in buildings. The idea is to reduce the exposure to second-hand smoke.
Annette Cary of the Tri-City Herald reported on a change in the way that some claims will be handled for exposures at the Hanford Nuclear Site, including a review of more than 800 previously denied or pending claims for ill Hanford workers that are being reconsidered or put on a fast track for a decision after federal compensation rules were recently eased.
All those claims are for cancers covered by a newly designated special exposure cohort for workers at Hanford from July 1972 through 1983. Workers received that designation if inadequate information existed to estimate their radiation exposure.
The classification allows workers or their survivors to claim $150,000 in compensation plus medical coverage without an estimate showing they received enough radiation to likely cause the cancer. They also may be eligible for up to an additional $250,000 for impairment and wage loss.
If you are given a severance agreement, consult with an attorney
Today’s post comes from guest author Jon Rehm from Rehm, Bennett & Moore.
Federal law requires that many employees who are offered severance agreements be advised by their employers to consult with an attorney before signing a severance agreement. If you have a severance agreement, you should consult with a knowledgeable employment-law attorney as soon as possible. Almost all severance agreements have a short time period, usually no more than 21 days, for the employee to accept the agreement. Here are some of the factors to consider in whether to accept a severance agreement.
If you have a severance agreement, you should consult with a knowledgeable employment-law attorney as soon as possible.
A. The value of the certainty of a severance agreement versus the uncertainty of a wrongful-termination suit. This requires an attorney to evaluate the strength of any possible employment-law claims you might have against your former employer. In many cases, the value of a certain amount of guaranteed severance pay is worth more than the uncertain outcome of a wrongful-termination claim that might not resolve for at least a year. Certain types of unfair-employment practices create more fear of litigation for employers than others. Employers are often willing to pay severance in order to avoid the expense and uncertainty of litigation. This fear can give employees some leverage in negotiations, which could lead to an increase in severance pay. However, every situation is different.
If an employee decides to reject severance and pursue a wrongful-discharge claim, a knowledgeable employment-law attorney can advise you on your chances of receiving unemployment benefits. Employers, especially smaller ones, will often fight unemployment claims if there are bad feelings surrounding a termination. If an employee is found to have been fired for misconduct, they are potentially losing many thousands of dollars in unemployment benefits. Before you reject severance, you should know your chances for receiving unemployment benefits.
B. A knowledgeable employment attorney may be able to review the severance agreement and find contract provisions to offer the employer in order to increase the severance pay. The fear of litigation is a stick, but sometimes employees can offer carrots in the form of favorable contract language to increase severance benefits.
C. Severance pay is not the only consideration in a severance agreement. A standard severance agreement often includes a provision that the employee is eligible for COBRA. COBRA requires that the employee pay the entire premium for health insurance. Sometimes employers are willing to pay that COBRA premium for a period of time.
Another possible severance benefit is the guarantee of a positive reference. A severance agreement is a contract releasing any claims – usually with the exception of workers’ compensation (see below) – by the employee against the employer. However, if the employer breaches the contract in regards to a positive reference, that can give the employee a breach-of-contract claim if the severance agreement is drafted properly. Many companies are willing to check out what employers are saying about former employees for a reasonable fee, so employees can enforce contract provisions regarding positive references
D. Workers’ Compensation. The laws regarding settling a workers’ compensation claim are very precise. I have never seen a severance agreement that creates an enforceable release of a workers’ compensation claim. However a savvy employer may be able to release your workers’ compensation claim through a severance agreement under recent changes in Nebraska’s workers’ compensation law. This is why you should consult with a lawyer who is familiar with fair employment and workers’ compensation law. This is especially true if you have an ongoing workers’ compensation claim against your employer.
E. You still might be able to bring a wrongful termination suit even if you signed a severance agreement. The Equal Employment Opportunity Commission has provided guidelines about when a severance agreement is not binding on the employee. If you feel you were railroaded into signing a severance agreement, it still might be worth your time to consult with a knowledgeable employment attorney.
I don’t get it.According to the polls, apparently, about 47-49% of you, perhaps even over 50%, will be voting for leaders from a political “party” whose underlying philosophy and interests stand so squarely against yours as a working-class American that you ought to be in the streets, on the picket lines, and storming corporate boardrooms over your current predicament. Not voting these people into office!
Why are 47-50% of you who work longer and harder than ever, own less than you did before, and have less opportunity to prosper – even considering empowering this cult’s agenda by putting them in office?
The new Republican Party – dramatically transformed from the relatively moderate one I grew up with in the 50s and 60s — can frankly be characterized as more of a political “cult” than a political party that seeks to govern responsibly. The overarching view of the new party, in the words of Grover Norquist you may have heard, is to “shrink government down to the size it can be dragged into the bathtub and drowned.” There may be leaders within the new Republican cult who are, individually, somewhat more moderate than the party’s current platform and philosophy, but in my view no working class citizen should be voting for any Republican who generally embraces the current Republican Party’s ideology about the role of government. And with rare exceptions, that’s all of them, either because they truly believe the nonsense they spout, or they are afraid to buck the Tea Party zealots who advance the cult’s philosophy and goals.
This new cult has fraudulently invested more power in corporate “personhood” than you will ever have as an actual “person.” Over the past 30+ years it has been responsible for the fact that in constant dollars the wages you now earn are about the same, or maybe slightly higher, than they were in the 1970s; and it has enabled a historic and dramatic shift in the ownership of wealth in this nation away from the working class, such that the top 1% now own 50% of the nation’s treasure. You have to go back before the Great Depression to find such inequality of wealth, and the accompanying inequality of opportunity.
This cult’s operational scheme over 30+ years has been to shrink the power and resources of the government (except for the military) that enable it to provide programs that serve you and protect your rights and opportunities. It mostly started with the actor Ronald Reagan who charmed millions into thinking that government “just didn’t work” for people (and it sure didn’t with that chucklehead – if you’re younger than 35 and not a history student, just about everything you “know” about Reagan is wrong, the product of right-wing historical revisionism over the past twenty years or so.) From that point on, the wealthy and corporate elites gradually manipulated our taxation system from the fair and equitable one it had been for the prior 25 years or so, resulting in drastic reductions in the contribution of corporations and the financial elites to the operation of government, while they simultaneously worked to erode statutory and regulatory protections against another meltdown of our economy.
From your standpoint, the other huge change in the workforce engendered by this cult has been the near total destruction of private sector unionism. Following World War II, and into the 60s and 70s, a unionized workforce was the bulwark of the middle class, ensuring that a fair percentage of wealth ownership, and the ability to consume the products we were manufacturing, remained with workers. When I started practicing workers’ compensation and other disability law in 1977, about 33-35% of the workforce was unionized. Today, in the private sector that number is around 8%. Other factors, such as the globalization of the economy, have contributed to this development, but make no mistake – it has mostly been driven by the increased power of corporate America to kill unionism, an essential component of the Republican cult’s philosophy. (Point of irony – who said: “When free unions and collective bargaining are forbidden, freedom is lost”? Answer: Ronald Reagan, 1980. He then gutted the air traffic controllers’ union in 1981.)
Following World War II, and into the 60s and 70s, a unionized workforce was the bulwark of the middle class, ensuring that a fair percentage of wealth ownership, and the ability to consume the products we were manufacturing, remained with workers.
With wages stagnant substantially as a result of 30 years of anti-unionism, and with the shrunken wealth of the middle class, an economy like ours, hugely dependent on consumption by the working class, falters. The loss of power of the working class, together with the aftermath of our economic meltdown in 2008 – the direct product of the Republican cult’s evisceration of banking and financial regulations over the years – and the failure of the exalted “job creators,” sitting on trillions of cash, to create jobs, all have converged to create a vicious economic cycle from which it will be difficult to emerge for some time.
So who has the best chance to get us –albeit slowly – out of this mess? What part of the Republican cult’s philosophy of government do you see leading to a brighter future for your economic and other interests? (So far, I haven’t even mentioned the Republican cult of “privatization” of traditional governmental functions which has us all enriching corporations with no-bid contracts that statistically end up costing your government more for often sub-standard work than would have cost the government to employ people directly to do this work.) Please tell me exactly what part of the Republican cult’s agenda for our economy you really believe will work for you and not exclusively for the very tip-top of this country’s financial elite? Do you still really believe the cult’s “trickle-down” theory of our economy: protect corporations and the financial elites that run them from government “interference” and all good things will flow down to float the boat of the working middle class? How’s that worked out for you so far? (We’ll leave out of this discussion for now social issues, e.g. women’s reproductive rights, civil rights, climate change, and foreign policy, of which the current R’s have none except occasionally to bluster about starting another war.)
And when you think about how – somehow – the Republican economic agenda is really going to work for your interests, consider another aspect of how a Republican administration would impact the power of the working class: THE … SUPREME… COURT… (and the rest of the federal judiciary). We’re one vacancy away — filled with another Scalia, Alito or Roberts — from the Republican cult running the table on the power of corporate America versus everyone else. The absurd decision in the Citizens United case, which has opened the floodgates of political money from the corporate elites for the purchase of elections, and ultimately our democracy, will seem mild in comparison to what could be in store with another ultraconservative justice on the Court.
So, as I said at the beginning, I don’t get it – why are 47-50% of you who work longer and harder than ever, own less than you did before, and have less opportunity to prosper – even considering empowering this cult’s agenda by putting them in office? It’s happened over and over in the past couple of decades – huge swaths of the American working class entranced by the Republican siren song. How do you see going down that road again changing your prospects? Some sage once said “the definition of insanity is doing the same thing over and over, and expecting a different result…”
