Category Archives: Uncategorized

A preventable work-related death is not “totally an accident”

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

This article is an excellent perspective on how people’s gut reactions can cloud a situation. First, I have to say it’s tragic that we need to talk so much about work-related fatalities, but it’s also important to remember that they happen to real people doing real work in real towns, just like ours, and yes, even in ours. I realize that people talking to the press are human and make slips of the tongue, but words are important, and how a person describes a situation is also important. That’s why I think this article is so important. Because describing a work-related fatality as an accident devalues the situation and the worker’s death. There is power in words.

I also appreciated the article’s comments section. Mr. Mark Catline from Maryland wrote, “Does OSHA ever contact local public safety agencies after such public comments? What if this was turned around and a Federal or State OSHA inspector commented to the press on police matters, ‘that (this incident) does not seem to be a criminal act’? I suspect the Area OSHA office would be hearing from the local police department.”

Although OSHA’s ability for enforcement is limited to safety violations, its representatives have referred company incidents to the Department of Justice for criminal sanctions. This process most likely involves local law enforcement as part of the investigation, so for them to declare an “accident” early on – when there may eventually be criminal charges – can’t be helpful to anyone’s investigations.

In a recent special report by Lincoln’s channel 10-11 about grain elevator fatalities, Bonita Winingham, OSHA Area Director for Nebraska, noted OSHA’s safety focus, saying “‘Our penalties do not reflect what someone’s life is worth at all.’”

She “says they make citations after each incident investigation, but they can lower those fines if the employer gets rid of the hazard or makes extra safety improvements.”

“‘When we talk to them about these cases we’re looking for abatement of the hazard, correction of the violation so that employees are no longer exposed to those hazards,’” says Wingingham. “‘That’s the main thing, we want to make sure that no one else is exposed to those hazards so everyone goes home safe.’”

“Wingingham says they can, and have, made recommendations to the Department of Justice if they find a company has willingly disregarded safety. Two companies, Crossroads Cooperative in 2009 and Farmers Union Coop of Stanton in 2012, have pled guilty to criminal sanctions for Nebraska grain-related deaths.”

The full text of the article below includes this information.

“Having an employee killed on the job is no doubt a shock. But after the shock subsides, most reasonable people recognize that fatal and non-fatal work-related injuries and illnesses are largely preventable.”

So please do not call these preventable tragedies accidents anymore.

What would it take to get police departments to refrain from calling work-related fatalities “just an accident”? I read it all the time. A 60 year-old mechanic falls 50 feet through an unguarded floor opening, and it’s an “accidental death.” Or a 30 year-old production clerk gets pulled into a machine, and it’s a “tragic accident.”

The latest example I read involved a 23 year-old man, Erik Deighton, who was crushed a few weeks ago at Colonial Plastics. The small suburban Detroit manufacturing plant fabricates specialty parts for automakers. Shelby Township Police Captain Stephen Stanbury told the press, “This is totally an accident.”

In a few months, I bet we’ll hear something different from Michigan OSHA (MIOSHA) about what happened on March 5 at Colonial Plastics. I’ll be surprised if they conclude “it was just an accident.” In reality, it’s a rare thing when on-the-job fatalities are “accidents.”

The news accounts relying on Captain Stanbury’s comments indicate that the 23 year-old worker was trying to clear an obstruction from a press machine. The machine cycled to stamp a part and he was fatally crushed. Catherine Kavanaugh of Plastics News writes:

The police did not indicate “…the exact kind of press involved but officers described it as a large machine with doors on two sides. The victim and a co-worker were operating the press together but…

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Suit: Company has history of mishandling chemicals

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Today’s post was shared by The Workers’ Injury Law & Advocacy Group and comes from theadvocate.com. I noticed this article recently because OSHA has extended its comment period on standards tied to improving chemical safety after the West, Texas, explosion. That process is in response to an executive order “which seeks to improve chemical facility safety and security,” according to the link above.

If OSHA protects workers to the greatest extent possible, that may also help consumers and those who live by these chemical plants. The lawsuit written about below was a result of an explosion involving chemicals in Oklahoma that happened after the West explosion. Some of the problems that workers faced, maybe even the explosion itself, potentially could have been prevented if the plant would have cared about and been more aware of worker – both employee and contractor – safety.

A contractor suing over the fatal June 13 Williams Olefins explosion at its Geismar plant raises recent federal workplace safety violations brought against the Tulsa, Okla., company and alleges Williams has a history of problems handling chemicals.

Filed Tuesday in U.S. District Court in Baton Rouge, the new suit brought by Abraham J. Bosley of Iberville Parish is the ninth in state or federal court over the explosion and the third brought this month.

Two of the older cases have been dismissed.

A flammable vapor cloud ignited from ruptured equipment in the company’s propylene fractionation unit, causing a massive fireball, a Williams investigation found.

At the time, the plant was undergoing expansion, and 839 employees and contractors were on site. The blast killed two and injured 114 people.

Investigators with the U.S. Occupational Safety and Health Administration and the U.S. Chemical Safety Board have focused on a reboiler, or heat exchanger, that a safety board official said “failed catastrophically” inside the fractionation unit.

The most serious of the six OSHA violations brought last year involves Williams’ operation of that kind of equipment while idle.

Bosley alleges Williams had a history of “citations, warnings and shut-downs due to improper storage and handling of chemicals including propylene,” the suit says.

“This included a citation in 2010 for releasing excess amounts of ethylene, and a December 2012 plant shut down for a…

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The Right to a Safe Workplace

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Workplace SafetyUnder federal law, every employee has the right to a safe workplace. If you believe your workplace is dangerous and changes in safety policy are ignored, you can request an inspection from OSHA (Occupational Safety and Health Administration).

Workers’ compensation, which is regulated on a state-by-state level, covers medical bills, lost wages, disability and vocational rehabilitation services for employees injured on the job. If you have any questions regarding these benefits, please contact an experienced lawyer in your area.

If you believe you work in an unsafe work area, here are some tips to be aware of to make sure your workplace is as safe as possible, and you protect yourself from significant injury:

  1.  Know the hazards in your workplace.
  2. While in a seated position, keep your shoulders in line with your hips. Use good form when lifting.
  3. Injuries occur when workers get tired. Take breaks when you’re tired.
  4. Do not skip safety procedures just because it makes the job easier or quicker. Using dangerous machinery is the one of the leading causes of work injuries.
  5. Be aware of where emergency shutoff switches are located.
  6. Report unsafe work areas.
  7. Wear proper safety equipment.

If you are injured due to an unsafe workplace, and you are unsure of the benefits that you are entitled to, contact an experienced attorney in your area.

Temporary Work, Lasting Harm

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Today’s post was shared by Gelman on Workplace Injuries and comes from www.propublica.org. The article is a tragic, difficult read. Sympathies go to all the loved ones of the workers who were killed at their jobs.

“A ProPublica analysis of millions of workers’ compensation claims shows that in five states, representing more than a fifth of the U.S. population, temps face a significantly greater risk of getting injured on the job than permanent employees,” according to the article.

And this report is extremely important and should spur action to protect workers as temp agencies are in even more intense work environments, and more workers are relying on being employed by temp agencies to survive.

“The growing reliance on temps subverts one of the strongest incentives for companies to protect workers. The workers’ comp system was designed to encourage safety through economic pressure; companies with higher injury rates pay higher insurance premiums. Hiring temp workers shields companies from those costs. If a temp worker gets hurt, the temp agency pays the workers’ comp, even though it has little or no control over job sites,” according to the article.

Fortunately, in Nebraska and Iowa, most, but not all, temporary employees are covered by workers’ compensation. The article does talk about how temporary workers are often retaliated against for filing claims, though. But the better solution is obviously both training and a safer job environment for all workers so none are getting hurt in the first place.

Ninety minutes into his first day on the first job of his life, Day Davis, pictured above, was called over to help at Palletizer No. 4 at the Bacardi bottling plant in Jacksonville, Fla. Above is a composite image of the times Davis is seen in a surveillance video before an all-too-common story for temp workers unfolded.

A version of this story was produced by Univision and will air tonight at 6:30 p.m.

JACKSONVILLE, Fla. – This was it, he told his brother Jojo. He would finally be able to pay his mother back for the fender bender, buy some new shoes and, if things went well, maybe even start a life with his fiancee who was living in Atlanta.

After getting his high school diploma, completing federal job training and sending out dozens of applications, Day Davis, 21, got a job. It was through a temp agency and didn’t pay very much, but he would be working at the Bacardi bottling plant, making the best-selling rum in the world.

Davis called his mother to tell her the good news and ask if she could pick him up so he could buy the required steel-toe boots, white shirt and khaki pants and get to the factory for a 15-minute orientation before his 3 p.m. shift.

Word spread quickly through the family. “Me and my brother was like, ‘Don’t mess up now, you got to do good, don’t mess up,’ ” said his younger sister, Nia.

It was a humid 90 degrees as Davis walked into Bacardi’s Warehouse No. 7 to the rattle of glass bottles,…

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What Both Sides Miss in the ‘Duck Dynasty’ Debate

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Duck DynastyComments made by “Duck Dynasty” star Phil Robertson, in an interview with GQ magazine, have set off a social media and cable news firestorm about the role of free speech in the employee-employer relationship. But neither side in the Duck Commander debate is telling the complete story. In short, while private employees do not have First Amendment protections in the workplace, Title VII provides some protections for religious belief and practice in the workplace.

Duck Commander detractors are correct to point out that the First Amendment does not apply to private employers* like A&E Networks and that employers are free to fire employees at will.* But what the largely urban, progressive and educated Duck Commander detractors largely fail to realize is that religion is a protected class under federal anti-discrimination law.

Conservative, evangelical Duck Commander supporters also fail to realize that federal anti-discrimination laws protect them as well. In the case of Ollis v. HearthStone Homes, an evangelical Christian successfully sued his employer for discrimination and retaliation for firing him in retaliation for failing to participate in “New Age” religious practices. The Ollis decision gives a good guide on what constitutes religious discrimination:

To establish a prima facie case of religious discrimination, a plaintiff must show he (1) has a bona fide religious belief that conflicts with an employment requirement, (2) informed the employer of such conflict, and (3) suffered an adverse employment action. If the plaintiff establishes these elements, the burden shifts to the employer to offer a legitimate, nondiscriminatory reason for the adverse employment action. Thereafter, the burden shifts back to the plaintiff to show the reason offered by the employer is pretextual.

Assuming that Robertson was an employee, it might be difficult to argue that his religious beliefs conflicted with an employment requirement. Even if he could make that argument, his employer could argue that how he expressed his comments about gays could be legitimate reason for termination. Finally, regardless of Robertson’s comments about gays, his comments about race relations in the South could likely provide any employer with a legitimate reason for termination.

 

*Robertson is likely not an employee of A&E Networks and likely has an a contract with A&E so Title VII is probably not applicable in this case

NEOC Awards Whistleblower Client Misclassified as Independent Contractor

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justiceI was happy to have the chance to represent Theron Chapman in his whistleblower claim against his former employer, Midwest Demolition. While the Lincoln Journal Star headline of “Man chased from job by manager with stun gun awarded back pay” is catchy, the real story here is that an employee who was fired for complaining of legitimately being misclassified as an independent contractor won some measure of justice from the Nebraska Equal Opportunity Commission.

Mr. Chapman had a legitimate grievance about being misclassified as an independent contractor. Nebraska law explicitly prohibits the type of misclassification that he questioned. In 2010, State Sen. Steve Lathrop, who authored the legislation outlawing misclassification in Nebraska, said in his bill’s statement of intent, as quoted in Truckinginfo: the web site of Heavy Duty Trucking magazine, that:

“When a contractor misclassifies an employee, the employee is ineligible for unemployment and workers’ compensation benefits, loses labor-law protections and does not receive employer-provided health insurance. Misclassification creates an unfair advantage to unscrupulous contractors who are able to outbid law-abiding employers who must take into account the payment of taxes and insurance premiums when bidding for jobs. The State’s loss in revenue negatively affects the funding of essential programs such as unemployment benefits.”

The deeper story here is that people on the margins of the workforce can sometimes vindicate their rights in the workplace. My client was hired through a job lottery at the People’s City Mission, a homeless shelter, here in Lincoln. People in his situation are vulnerable to abuse in the workplace. Not every instance of bad behavior by management is legally actionable, but that is true from the executive suite to low-wage workers like my client. But fair-employment laws can protect people who are being abused in the workplace and do sometimes provided protections to the people who need them the most.

Former President of Chemical Company Sentenced for Federal Crimes Related to Employee Deaths

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Today’s post was shared by Gelman on Workplace Injuries and comes from ehstoday.com. Mr. Jon Gelman is a respected colleague who focuses on workers’ compensation in New Jersey.

As the post points out, it is unusual, but not unheard of, for an employer to be charged and sentenced for Occupational Safety and Health Act violations. In fact, in 2012, I wrote about a situation that happened at a Nebraska grain elevator that caused a worker’s death and resulted in a misdemeanor charge, including a $100,000 fine and 2 years of probation for the employer.

The article below is important for a number of reasons. First, two truck drivers, Joey Sutter and Charles Sittig, died as a result of chemical exposure to hydrogen sulfide through their work. Next, the company’s former president, Matthew Lawrence Bowman, was sentenced to serve 12 months in federal prison and also fined $5,000, according to the article. As president of his company, Port Arthur Chemical and Environmental Services LLC (PACES) of Port Arthur, Texas, Bowman even directed some of the violations. And these actions were “criminally negligent,” according to John M. Bales, U.S. attorney for the Eastern District of Texas.

Although no amount of prison time or fines can bring the drivers back to their loved ones, it is good to see someone being held at least a little bit accountable for the dangers of this company’s practices.

Matthew Lawrence Bowman, the former president of Port Arthur Chemical and Environmental Services LLC (PACES) finally had his (sentencing) day in court. Bowman pleaded guilty on May 9 to violating the Occupational Safety and Health Act (OSH Act). It is rare for individuals to be prosecuted and sentenced to violations of the OSH Act.Bowman admitted to not properly protecting PACES employees from exposure to hydrogen sulfide, a poisonous gas resulting in the death of truck driver Joey Sutter on Dec. 18, 2008. In addition, Bowman admitted to directing employees to falsify transportation documents to conceal that the wastewater was coming from PACES after a disposal facility put a moratorium on all wastewater shipments from PACES after received loads containing hydrogen sulfide. He was sentenced to serve 12 months in federal prison on Oct. 28 by U.S. District Judge Marcia Crone. Bowman was also ordered to pay fines in the amount of $5,000.

Acting Assistant Attorney General Robert G. Dreher called the sentence “a just punishment” for Bowman’s actions, which placed workers “at unacceptable risk and had fatal consequences.”

“The Justice Department and the U.S. Attorney’s Offices will continue to work with our law enforcement partners to vigorously investigate and prosecute those who violate the laws enacted to ensure the safety of workers handling hazardous materials and to prevent the kind of tragedies that…

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Firm Fights Cancer by Fielding Making Strides Team

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Rehm, Bennett & Moore staff members recently walked in the American Cancer Society’s Making Strides Against Breast Cancer event in Lincoln, Neb.

Rehm, Bennett and Moore recently organized a team of walkers and fundraisers for the Lincoln, Neb., American Cancer Society’s Making Strides Against Breast Cancer walk.

According to the Making Strides website, the firm’s team, “Big or small, we save ’em all at Rehm, Bennett & Moore” raised $1,215. And the team also got a mention before the walk on the creativity of the team name. Participants had the choice of walking a 1- or 3-mile (5K) course this year on a beautiful fall day around Holmes Lake.  

Although team members had various personal motivations for participating, they also experienced the power of seeing thousands of people with the same goal in mind – finding a cure for breast cancer. 

“Cancer is something my family has been affected by firsthand. We have seen the struggles that family members have had to go through with this horrible disease. I am thankful for organizations like Making Strides to provide opportunities to get involved in raising money for the fight for the cure. I was amazed by the amount of people who attended the walk and am grateful for all that the organization does to both bring awareness and provide funding for everyone affected by cancer,” said Legal Assistant Lisa Heisinger who served as a one of two Team Captains, along with Administrative Assistant Pam Stachura.

The event held in Lincoln included 239 teams and 1,819 people. Over $206,800 was raised, according to the Making Strides website.