Archive for March 24, 2011

Jennifer Atkinson | March 24, 2011
No comments

Oklahoma Senate Passes Workers’ Comp Bill

Recently the full Oklahoma Senate approved a series of bills ostensibly designed to reduce the cost of doing business in Oklahoma.  As states compete to bring in companies amidst a slowly recovering economy, the usual suspects have emerged as siren songs of the “pro-business” community: lower corporate taxes, heavy deregulation, and limitations on workers’ compensation claims.  These proposals often have ramifications beyond their stated goals.  Lowering corporate taxes creates gaps in state budgets already suffering from lack of revenue leading to cuts in social and public services.  Deregulation can lead to abuses of corporate power, as exemplified by the mortgage crisis that kicked off the current recession.  And heavy-handed reforms to workers’ compensation can limit the ways workers can lawfully pursue and receive legitimate injury claims.

Oklahoma Senate Bill 878 purports to be a comprehensive approach to workers’ compensation reform.  Brian Bingman, R-Salupa said, “We are committed to reducing Oklahoma’s workers’ compensation rates and making our state more competitive for job creation in every way.  This bill is progress towards a goal of making Oklahoma more competitive economically with surrounding states.”

The provisions of the Bill include mandating a judge to render a decision within 60 days, mandatory annual reviews of disability recipients, placing more authority in the hands of medical experts when reviewing claims, and encouraging early return to work as a form of rehabilitation.

Critics are skeptical of bill’s true intent.  Barbara Hoberock reports that the bill could limit injured workers’ access to medical treatment. It ties rates of compensation for doctors treating injured workers to 120 percent of Medicare. She quotes Dr. William Gillock, who practices occupational medicine in Tulsa. “We are concerned it would eliminate access to care and affect the quality of care we can provide,” he said.  The primary concern is that the reduction of compensation would make it difficult for doctors to refer their patients to specialists who charge higher raters.

Another measure passed by the Oklahoma Senate is aimed at limiting the amount workers’ compensation lawyers can be paid to represent injured workers.  Critics like Senate Minority Leader Charles Laster argue that the resolution would force injured worker’s to stand alone against the well-funded legal teams representing insurance companies.  Although supporters argue the measure would motivate workers’ compensation lawyers to work harder on behalf of their clients to obtain larger compensation, another possible outcome is reluctance to take cases in the first place.

The Washington State legislature is also pushing major changes in workers’ compensation benefits under the banner of reducing costs to the State.  While Governor Chris Gregoire’s proposal to push workers back into “light duty” while still recovering from injuries and to offer buy-outs to injured workers does not go as far the Oklahoma measures, it does reflect the national trend to push injured workers back into the workplace perhaps before they are ready.  The Seattle Times reports the “idea is to reconnect the worker with his boss, co-workers and paycheck, instead of having him sit at home on state benefit.”  One should note that the Times’ description of a worker sitting “at home” reflects an ugly prejudice in the mass media and by politicians against the plight of the injured worker.  As anyone who has suffered a workplace injury will tell you, recovery is a physically and emotionally exhausting process.

Labor and Industries laws continue to change across the nation.  Injured workers should consult with a Washington Workers Compensation Lawyer to ensure they receive the full protection of the law.

Category: Employment Discrimination, Uncategorized, Worker Injury, workers compensation, Workplace Accident | Tags: , , , , , , , , , , , , ,
Jennifer Atkinson | March 22, 2011
No comments

Emery Reddy Victory for Seattle Teacher: Appeals Court Grants Trial in Seattle School District Employment Discrimination Case

The Washington State Court of Appeals decided yesterday that a 14 year teaching veteran deserves a trial in an Employment Discrimination case.  At issue for the jury is whether the Seattle School District should have transferred her to a clean, mold free environment before terminating her.

Denise Frisino’s troubles with toxic mold began in 2000 when she acquired a respiratory illness in response to chemical toxins present at Hamilton International Middle School. The illness made her sensitive to a range of airborne toxins, from mold to other irritants.  After attempts to clean up the toxic environment at the school failed, Frisino was forced to go on medical leave in April 2004 and agreed to be transferred to Nathan Hale High School the following school year.

According to court documents, the extent to which Seattle Public Schools has failed to address widespread mold and toxin problems became clear when Frisino entered her new classroom at Hale.  She “immediately note[d] visible mold as well as blackened and missing ceiling tiles.”  Frisino discussed her concerns with Hale Principal Lisa Hechtman.  In September and October, a private firm, Clayton Group Services, as well as the Seattle/King Country Department of Health investigated and “reported no active mold growth in the building.”  Although they reported “the total fungal structure concentrations inside the hale building were lower than those found outdoors,” the District still performed some minimal remediation on the classroom.  On November 21, the issue came to a head when Frisino experienced a respiratory emergency in the classroom requiring a visit to the emergency room.

Michelle Esteban of KOMO News reported on November 29, 2004 on photos of mold that a Nathan Hale parent provided.  Esteban notes, “Some of the ceiling tiles are peeled away and, underneath, a black mold.”  The article also described Frisino’s reaction as “severe–everything from a hacking cough, swollen nose, ringing ears and now respiratory complications.”

Frisino was not the only person put in jeopardy by the continuing mold problem at Nathan Hale.  Seattlepi.com reported on December 7, 2004 that Jennifer Aspelund pulled her son out of Nathan Hale because of the threat the mold posed.  Her son, North Aspelund Jr., was “diagnosed with leukemia at age 4, relapsed four years later, then endured a bone marrow transplant and the removal of a cancerous kidney.”  After detecting a an odd smell in the library, officials confirmed an “area above a northeast stairwell contain[ed] Stachybotrys atra, a greenish-black mold.” His mother noted they never would have enrolled North in Hale had they been aware of the mold problem.

Meanwhile, Frisino was earnestly negotiating with the District to accommodate her disability.  According to court documents, the District hired Superior Colt to remove visible mold from Classroom 216.  The remediation project was completed in December and the District demanded Frisino return to work on January 3, 2005.  Thus began a flurry of communication between Frisino and the District, with the District claiming the environmental remediation was “appropriate” and Frisino’s doctors repeating she was “advised to remain away from her current workplace or be transferred to a more accommodating environment.”  The District terminated Frisino on June 1, claiming she failed to return to work.

Frisino’s original lawsuit alleged the District failed to provide a reasonable accommodation as required by the Washington Law Against Discrimination, and engaged in employment discrimination and retaliatory discharge.  The trial court dismissed her claim in favor of the District.

Yesterday Frisino’s claim was given new life by the Washington State Court of Appeals when she was granted a new trial.  Among other irregularities, the court noted the District attempted to apply an “objective measure” to her illness and questioned whether the District reasonably accommodated Frisino. Most importantly, in the last month many of the key players working for the School District have been terminated for misuse of District funds and poor leadership after being swept up in the Seattle Public Schools Scandal.

Since the case was dismissed in 2009, Nathan Hale has been completely renovated.

The Appeals Court’s granting of a trial is an important victory for injured workers whose employers violate their rights by refusing to accommodate a disability or terminate in retaliation.  There is a Washington L & I attorney at Emery Reddy  that has the expertise to protect your rights.  Stay tuned as this case continues to unfold…

Category: Employment Discrimination, Retaliatory Termination, Uncategorized, Worker Injury, workers compensation, Workplace Accident | Tags: , , , , , , , , , , , ,
Jennifer Atkinson | March 14, 2011
No comments

Discrimination Against the Unemployed

By Noah K. Williams

The Puget Sound’s unemployment concerns are about to take on a new dimension. As the unemployed continue to struggle to find work, many will seek to find a source of their frustrations. Often blame is heaped on former or prospective employers whether merited or not.

Discrimination claims related to hiring or termination decisions are on the rise.  With grim job prospects employees are more likely to try and extract payment from an employer based on a perceived wrong.

Seattle is not in a unique position. The Puget Sound has an unemployment rate only slightly better than the national average at 8.8%. Without the booming economy necessary to reduce employer and employee angst, the Puget Sound area will likely continue to follow the forecasted trends of rising discrimination claims (see further discussion on employment in Puget Sound).

On February 16, 2011, the Equal Employment Opportunity Commission convened with experts and scholars in the employment field to address concerns related to discrimination against the unemployed.  Because of this, a new concern for employers, business owners, and employees has surfaced (see note 1 below).

The EEOC heard statements regarding large businesses that advertised a policy against hiring the unemployed. In certain cases these businesses advertised that unemployed applicants should not even apply.

Any employment policy or practice that has a disproportionate impact on protected classes of individuals (race, gender, age, disability etc.) exposes an employer to claims of discrimination. The argument is that members of certain races are unemployed at a higher rate than others and by denying positions to the unemployed there is a disproportionate impact on those races.

As the recession continues, the emerging evidence supports the argument that discrimination against the unemployed affects certain races more than others. The Bureau of Labor Statistics through the U.S. Department of Labor tracks unemployment trends across the nation. In its most recent report the trend for disparity between the unemployment rates of certain races continued. For example, white men had an unemployment rate of approximately 8% compared to 11.6% for Hispanics men, and 15.3% for African American men.

These statistics do not prove that a violation of anti-discrimination laws has occurred. Individual complainants must still show they are a member of a protected class, and that the alleged policy or practice did in fact exist. Any policy, practice, advertisement or procedure that negatively references an applicant’s employment status can therefore expose a business or employer to claims of discriminatory hiring practices.

There are some reasons an employer or business owner may favor a currently employed applicant over an unemployed applicant. Employers frequently voice the opinion that under-performers are the first to be let go in reductions of force and only the best employees are the ones kept on staff. This may have a kernel of truth, but regardless of whether the employer intended to discriminate against anyone, the unintentional impact of the policy is what ultimately matters.

With increasing media coverage of such hiring practices, reports on discrimination against the unemployed will continue to rise. Frustrated unemployed workers will begin to turn to the legal system to right this perceived wrong. Though some employees and plaintiffs may have valid claims, there will be many who are just seeking someone to blame.

It is also unfortunate for those successful companies that are able to hire to become lightning rods for litigation. The end result may be that a seemingly legitimate hiring practice has made a bad situation worse. At a time when businesses are working towards expansion they now have additional risk to consider.

The costs of litigation should be avoided where possible. A consultation with an experienced discrimination and employment law attorney to reduce risks of litigation may be the best course of action. Business owners should contact their attorney if they are concerned their hiring practices have exposed them to liability. Though these concerns will play out more aggressively with larger employers, even mid-sized and small businesses may be exposed to claims of unemployment discrimination.

ABOUT THE AUTHOR:

Noah K. Williams obtained his J.D. with honors from Seattle University School of Law and now works as an associate attorney at Emery Reddy PLLC

His practice focuses on small business development, sub contractor status and small business employment tax assessment issues as well as employment law issues such as anti-discrimination, workers’ rights, and the employer/employee relationship.

He has litigated and assisted in the presentation of a variety of business and employment law issues including formation, dissolution, corporate governance, trademark disputes and transfers, secured transactions, employment discrimination, class action wage disputes, wrongful termination and breach of contract.

Note 1: EEOC Hearings on Treatment of Unemployed Job Seekers

EEOC to Examine Treatment of Unemployed Job Seekers

Meeting of February 16, 2011 – EEOC to Examine Treatment of Unemployed Job Seekers

Written Testimony of Christine L. Owens, Executive Director, National Employment Law Project

Written Testimony of Fernan R. Cepero, Vice President for Human Resources, The YMCA of Greater Rochester

Written Testimony of James S. Urban, Partner, Jones Day

Written Testimony of Helen Norton, Associate Professor, University of Colorado School of Law

Written Testimony of Fatima Goss Graves, Vice President for Education and Employment, National Women’s Law Center

Written Testimony of Algernon Austin Ph.D., Director of the Program on Race, Ethnicity, and the Economy, Economic Policy Institute

Category: Uncategorized | Tags: , , ,
Jennifer Atkinson | March 11, 2011
No comments

Big Changes For Workers’ Comp? Washington State Senate Bends To Business Lobby

As the showdown between Governor Scott Walker and Labor activists in Wisconsin continues to rivet the nation, one thing has become clear: Anti-labor forces across the country are using spiraling budget debt to justify attacks on established labor law.  Washington State is no different.

Last week, the Washington State Senate passed a bill that would radically change they way the state’s workers’ compensation fund would operate.  Many Seattle and Washington observers have praised the ostensible goal of the bill: establishing an option for injured workers to take a lump sum settlement in lieu of an extended dispensation of compensation funds.

On the surface, this all sounds great.  The bill would provide more flexibility for workers and help the system to achieve closure in many claims that tend to languish for years.  As Komo News notes, the “major expenses of the system come from only 8 percent of all claims, which involve workers who are receiving benefits for a prolonged period of time or have lifetime pensions.”  Bert Caldwell of the Spokesman-Review writes “Gregoire’s proposal would make that option available to workers age 55 and older who many not be retrainable and might prefer a reduced stipend that allows them to go their own way and possibly find new work without worrying that a dollar earned is a dollar out of their pension.”

As with many pieces of proposed legislation, the early part of the Bill presents a good compromise for employers and workers.  However, toward the end of the bill, there are startling proposals which place undue burdens on the workers of Washington state.

Buried in the back of the bill is a section that may limit the ability for workers to be compensated for separate and totally unrelated injuries, merely because they were unfortunate enough to have been injured multiple times.  Essentially, this vaguely worded section would make new injuries to body parts that were previously asymptomatic considered part of a prior injury and therefore unrelated to the new injury.  This would deny legitimate claims without sufficient examination, even if the worker is working for a completely different employer.

Another interesting tidbit from the end of the bill provides a subsidy for employers to pay their own workers’ wages.  While this might sound appealing, trudging further into this provision reveals a telling caveat: “Employers may collect up to one-half the fund assessment from workers.”  Come again?  This section basically requires workers to pay for half of their own salaries—effectively making workers subsidize their own wages.  In fact, this section is likely unlawful in relation to the Washington Minimum Wage Act.

Like many state bills bent on reducing deficits by targeting “entitlements” for workers, this proposed measure would threaten basic workers’ rights across the state of Washington.  Injured workers should seek out a Washington Workers’ compensation attorney who is ready to protect their basic right to compensation in the face of a workplace injury.

Category: Employment Discrimination, Uncategorized, Worker Injury, workers compensation | Tags: , , , , , , ,
Jennifer Atkinson | March 10, 2011
No comments

Supreme Court Allows States To Rule On Immigrant Workers’ Comp

The U.S. Supreme Court has declined to a hear a case that would have forced a broader ruling on whether States can deny workers’ compensation to undocumented workers injured on the job.

According to court documents, Antonio Garcia Rodriguez sustained an injury on February 6, 2004 while doing roofing work for Integrity Contracting at the University of Louisiana-Lafayette.  His claim was initially denied by the Louisiana Workers’ Compensation Corporation because LWCC claimed Integrity had failed to pay its premium on the policy.  However, Integrity Contracting was a subcontractor working for Vaughan Roofing & Sheet Metal, making Vaughan Roofing liable as a statutory employer.  Vaughan countered that Rodriguez was on an expired work visa at the time of the accident, thus placing him in that most murky of legal categories: the undocumented worker.

At stake in the case of Vaughan vs. Rodriguez was whether Federal law trumps State Law in the matter of workers’ compensation.  State laws require employers to provide workers’ compensation to injured workers.  But the Immigration Reform and Control Act of 1986 (IRCA) made it illegal to knowingly hire or recruit undocumented immigrants.  One way that employers worked around this new law was to make extensive use of subcontractors, as Vaughan Roofing did in the Rodriguez case.

States have dealt with this conflict between State and Federal Law in many ways. California, Maryland, and Florida among others have held that an injured worker’s immigration status is irrelevant to his or hers workers’ compensation claim.  In a California case, the Court of Appeals rejected an employer’s argument that the IRCA preempts California’s labor code that includes undocumented workers in the definition of covered workers.  In fact, the court held there was no true conflict between the IRCA and California law.  The court noted that barring injured undocumented workers from collecting workers’ compensation would encourage “unscrupulous employers to hire unauthorized aliens” to work knowing they would not have to pay any claims to injured workers.

By declining to hear the Vaughan case, the Supreme Court effectively reaffirmed that this important question should be settled at the State level.

When Immigration and Workers’ Compensation laws intersect, injured workers’ may feel overwhelmed by the obstacles to their legal claim.  Injured workers should consult with an expert Washington Workers’ Compensation Attorney who understands the shifting legal landscape.

Category: Uncategorized, Worker Injury, workers compensation, Workplace Accident | Tags: , , , , ,