It has been a roller coaster of a May here on the Great Plains. Nebraska and Iowa have both been hit with weather extremes. For example, “Two days after Lincoln recorded a record low temperature and less than two weeks after the city saw significant snow, thermometers soared Tuesday.” And I saw on Facebook via Radio Iowa News, that “Sioux City reports 106 on Tuesday afternoon, beating the old record of 97, set in 2001.” Because the Journal Star says this is the earliest Lincoln’s ever hit 100 degrees (a new record), I will go out on a limb to say that we’re done with freezes for a while, which makes me think about the next season: summer and heat.

Did you know that heat issues can be covered by workers’ compensation? But prevention is preferred, so here are some links with lots of resources for those who work outside, no matter the weather, and also for those who play, garden, golf, exercise, and enjoy the outdoors. In addition, just like one’s body adjust somewhat to cold, the body also adjusts to heat, so a person who spends the summer in the air conditioning will have less tolerance for the heat than someone who spends all day outdoors. In addition, pay attention to prescription medicines, as some can cause sunburn or heat problems quicker than a person not taking that medication would experience them. The heat can also affect folks who may not be considered the traditional “outside” worker, as, for example, if one is unloading cargo from a truck to a warehouse in 100 degree heat, it can be much hotter than that in both the truck and warehouse.

One term that is mentioned on a regular basis in the media once the humidity kicks in is the “heat index,” which is defined as followed, according to http://www.weather.com/outlook/health/fitness/tools/heat: “The Heat Index is the temperature the body feels when heat and humidity are combined.” Of course this means that what it feels like isn’t the actual temperature, as it only felt like 95 when it was 100 recently because of a “dry heat.”

• Welcome to OSHA’s Campaign to Prevent Heat Illness in Outdoor Workers
  There is a lot of information on here, and looking through some of it is a reminder that employers should expect and encourage workers to be safe when it comes to working in the heat. Employers should make an effort to encourage this safety focus by both talking about and acting on recommendations to help employees be safer and more productive.
• Using the Heat Index: A Guide for Employers
  “Water. Rest. Shade. The work can’t get done without them.” This quote from the website is a very useful safety reminder. It looks like there are lots of opportunities through these links for conversations to occur between workers and employers about taking heat index into account when planning work.
• NIOSH Workplace Safety and Health Topics: Heat Stress
  This site includes an overview; types of heat stress; recommendations for employers; recommendations for workers; and many other links that share resources and research about being in the heat.
• Heat Safety Tool
  Although I’m generally easily amused, I am sincerely happy to say that there’s an app for that! Because so many people are connected with mobile technology, I am looking forward to downloading this app on my phone for the summer for personal use.
• OSHA Quick Card
  Here’s a Quick Card resource from OSHA that folks can print out for reference points. And as neat as mobile apps are, from a practical perspective, paper does make a better fan.

So regardless of why you’re outside, enjoy, take care, and be safe!

Bedford, TX Construction Site

Today’s post comes from guest author Brian M. Wright from Causey Law Firm in Seattle. Although I have written about this topic in the past in regard to truckers, I think this post is a great reminder to contact an attorney if you have any questions about details in a workers’ compensation claim. Workers’ compensation laws really do vary from state to state, and one of the most important jobs that an attorney has is getting the best benefits for people with claims so they can make the best recovery possible under their individual circumstances. Navigating that process can be quite overwhelming when different states’ laws are involved, so be sure to reach out for assistance if needed.

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.

Photo credit: nffcnnr / Foter / CC BY-NC-SA

Today’s post comes from guest author Jon Gelman, LLC – Attorney at Law. Although the scene for this blog post comes from a business in New Jersey, the scenario occurs all too often in businesses across the nation. Fortunately, an injury or death was not the catalyst for officials to be notified of the hazards. But it’s frustrating that the right for workers to be safe is often trumped by what employers see as the need for speed or profit. And I’m not convinced that OSHA’s fines deter companies from taking safety shortcuts frequently. So please work to be safe at work and at play.

Warehouse worker suffer unique risks associated with their employment. Many warehouse workers suffer injuries at work that lead to seriously disabling Worker’s Compensation claims. U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) has taken a major step in enforcing regulations in Jersey City,New Jersey, in an effort to make the work environment safer.

OSHA has cited Continental Terminals Inc. for nine serious and two willful safety violations at the company’s Jersey City facility. Inspectors were notified of alleged hazards at the facility while they were inspecting another Continental facility in Kearny. Proposed penalties total $130,900.>

The willful violations involve not protecting workers by allowing them to ride on the forks of forklifts, where they were exposed to falls of 10 feet, and permitting them to work on elevated platforms devoid of guardrails. A willful violation is one committed with intentional knowledge or voluntary disregard for the law’s requirements, or with plain indifference to worker safety and health. The citations carry $98,000 in penalties. The serious violations include having exit doors that were sealed shut, allowing damaged powered industrial trucks to be operated, stacking materials insecurely, not having a hazard communication program, using damaged electrical cords and not labeling electrical panels. A serious violation occurs when there is substantial probability that death or serious physical harm could result from a hazard about which the employer knew or should have known. The citations carry $32,900 in penalties.

“Because fall hazards are among the leading cause of death among workers, it is vital that employers provide workers with proper fall protection,” said Kris Hoffman, director of OSHA’s Parsippany Area Office. “Employers are responsible for ensuring safe and healthful workplaces, and will be held legally accountable when they fail to do so.”

The citations can be viewed at http://www.osha.gov/ooc/citations/Continental_408905_1026_12.pdf.*

Continental Terminals Inc. is a coffee and cocoa warehouse business that employs 10 workers at its Jersey City site; it was recently fined $162,400 by OSHA for safety violations at its Kearny site. The company has 15 business days from receipt of the citations to comply, request an informal conference with the OSHA area director, or contest the findings before the independent Occupational Safety and Health Review Commission.In April, Secretary of Labor Hilda L. Solis announced a campaign to provide employers and workers with lifesaving information and educational materials about working safely from ladders, scaffolds and roofs in an effort to prevent deadly falls in the construction industry. In 2010, more than 10,000 construction workers were injured as a result of falling while working from heights, and more than 250 workers were killed. OSHA’s fall prevention campaign was developed in partnership with the National Institute of Occupational Safety and Health and NIOSH’s National Occupational Research Agenda program. More information on fall protection standards is available in English and Spanish at http://www.osha.gov/stopfalls.

Attorneys Jonathan V. Rehm and Brody J. Ockander

In 1958, President Dwight Eisenhower proclaimed May 1 as Law Day to celebrate the importance of law in our society. Every year, to recognize Law Day in Lincoln, the Lincoln Bar Association organizes lawyers and judges to make presentations to local high schools.

This year, Jon Rehm and I presented to Lincoln North Star High School on the topic of “Equality for All,” more specifically, equal protection under the 14^th Amendment. The topic was chosen based on the 50^th anniversary of Dr. Martin Luther King’s “I Have a Dream” speech. 

In order to understand the importance of equal protection under the 14^th Amendment, we discussed the cases of Plessy v. Ferguson (1896) and Brown v. Board of Education (1954) and had the students act out parts from the oral argument of Briggs v. Elliot (1954), a case that was consolidated with the Brown case.

This gave the students a hands-on approach to understanding the arguments made by the parties and the role of the Supreme Court in interpreting the 14^th Amendment.

In all, we had a wonderful time discussing these topics and other current topics within the courts to high school students who may someday become the next generation’s Thurgood Marshall.

I read an encouraging article  in The Washington Post: “A return to ‘Made in America’? Is U.S. manufacturing making a comeback — or is it just hype?” 

Everyone concerned with the plight of American workers should read the article. Manufacturing does seem to be growing once again in the USA. The article points out several reasons for this trend, including the increasing cost of Chinese manufacturing and increased American productivity. The news is not great, because many, if not most, of the new manufacturing jobs pay less than the jobs we lost. However, the jobs seem to be coming back.

I grew up in a tiny little factory town that proudly made Vise-Grip wrenches. The family-owned company supported generations of families, provided summer jobs for college kids, and taught us what work meant. (My introduction to workers’ compensation came at age 18 with an industrial injury.) However, the plant was sold and resold and resold until it was finally uprooted and sent to China. My hometown, like so many others was devastated.

A Bruce Springsteen song, “My Hometown,” brings tears to my eyes when I recall what happened to my hometown. These lyrics are particulary haunting: 

“Now main streets whitewashed windows and vacant stores
Seems like there aint nobody wants to come down here no more
They’re closing down the textile mill across the railroad tracks
Foreman says these jobs are going boys and they aint coming back to
Your hometown, your hometown, your hometown, your hometown”

Hopefully the mythical foreman had it wrong and the jobs are starting to come back to our hometowns! Keep on buying American, folks.

Workers have flooded North Dakota to work in the booming oil industry.

Today’s post comes from guest author Jay Causey from Causey Law Firm in Seattle. I think this article is an excellent example of the costs of workers’ compensation being shifted to other avenues, most notably to hospitals and taxpayers, when, for whatever reason, the comp system in a specific state doesn’t help workers. This includes not paying workers’ bills, which can dramatically affect portions of the local economy in a negative way. So remember, when you hear about the “oil boom” in North Dakota, oil companies’ profits may be coming at the expense of both workers and healthcare systems in the state, which is a shame. Then think about the role that the workers’ compensation system plays in your state for workers when it comes to things like infrastructure needs, such as hospitals and healthcare facilities, getting paid in a timely manner.

A recent article in the New York Times (An Oil Boom Takes a Toll on Health Care, January 28, 2013) recounted the growing burden on North Dakota hospitals because of on-the-job injuries to workers who have flooded that state to work in the booming oil industry. Apparently North Dakota hospitals are swimming in debt from unpaid bills because, as the article by John Eligon states, “many of the new patients are transient men without health insurance or a permanent address in the area.”

“Swamped by uninsured laborers flocking to dangerous jobs in the oil industry, the hospitals here in the North Dakota oil patch are sinking under skyrocketing debt, a flood of gruesome injuries and bloated business costs from the inflated economy.” – John Eligon, New York Times

Mr. Eligon goes on to discuss actions by the governor and state legislature to increase medical training and medical facilities in North Dakota, and to obtain increased Medicaid financing for the state’s rural hospitals. Not only are medical facilities groaning from the increase of gruesome injuries associated with highly dangerous work environments, Mr. Eligon recounts the health issues that arise from the cramped housing scenarios in the work camps that have sprung up near the oil fields. This includes a significant increase in the incidence of sexually transmitted diseases.

The North Dakota Workforce Safety & Insurance site includes its catchy motto – “Putting Safety to Work.”

However, nowhere in Mr. Eligon’s article is there any mention of, or reference to, North Dakota’s workers compensation system which would seemingly provide the principal coverage for the injuries and conditions that are the subject of his article. Is the NYT oblivious to the fact of coverage for industrial injuries and conditions under each state’s workers compensation law? Or are workers injured in the new booming oil economy of North Dakota somehow being denied coverage under that state’s system, or being engineered out of coverage by the terms of their employment with the oil companies? It seems that a minimal inquiry, at least, on these points was owed by the NYT in its article.

Photo credit: nestor galina / Foter.com / CC BY

It seems like we spend a lot of time encouraging readers to reflect by thinking about their lives and the lives of others who are less fortunate. We also encourage folks to advocate for workers’ rights and safety. And yes, this encouragement does sometimes come at the expense of business profits.

One way to reflect, act and help workers is by observing Workers’ Memorial Day on Sunday, Apr. 28.

“Each and every day in this country, on average 13 workers die on the job as a result of workplace injuries – women and men who go to work, never to return home to their families and loved ones,” according to the AFL-CIO.

It seems especially bittersweet to us that the number of workers killed for one day of the year on average is so close to the number of workers killed at the West, Texas, fertilizer plant explosion. Although it seems the media is much more focused on other news, there is a strong grassroots effort to continue the coverage of the fertilizer plant explosion in Texas, especially to figure out what caused it.

By reflecting on the risks that all workers take and acting to promote safety, Workers’ Memorial Day will be even more successful. And most importantly, all of our loved ones will have safer workplaces.

There are many resources to access to find out more about Workers’ Memorial Day events near you. Here are some links, along with the specific information for Nebraska and Iowa:

• Iowa
  Workers’ Memorial Day Ceremony
  Friday, Apr. 26, 11 a.m.
  Iowa Workforce Development, Des Moines
  via http://www.iowaworkforce.org/labor/
• Nebraska
  4th Annual Workers’ Memorial Day
  Sunday, Apr. 28, 7 p.m.
  Nebraska State Capitol North Steps, Lincoln

According to the Lancaster County Democratic Party, via email, “representatives from State, Federal, United Support Memorial for Workplace Fatalities (USMWF), Unions, Co-workers, Employers and the community come together and honor the men and women that have been injured or killed in a preventable work related incident.”

Please see the website below for more details: http://www.workermemorialday.org/WMD2013.htm

• Message from the AFL-CIO about Workers’ Memorial Day, along with information about events for the day that others have posted http://www.aflcio.org/Issues/Job-Safety/WorkersMemorialDay
• Message from the National Council for Occupational Safety and Health about Workers’ Memorial Day, along with information about events for the day that others have posted http://coshnetwork.org/workers-memorial-day
• Review OSHA’s coverage from last year’s Workers’ Memorial Day at http://www.osha.gov/as/opa/workersmemorialday.html

The fertilizer plant explosion in West, Texas, is a tragedy. That tragedy hits uncomfortably close to home in rural states like Nebraska and Iowa where many fertilizer plants are located.

I agree with pundits who argue that the West, Texas, explosion, is a failure related to deregulation and cuts in spending on workplace safety. However, both Bloomberg and The Wall Street Journal report that West Fertilizer Co had been fined $5,200 in 2012 by the Pipeline and Hazardous Materials and Safety Administration and also by the Environmental Protection Agency. Bloomberg reported that the Obama administration increased inspections of fertilizer plants under the auspices of Homeland Security. But the fine and inspection by the Pipeline and Hazardous Materials and Safety Administration and EPA fail to undermine the argument that the explosion is related to lax enforcement of workplace safety rules for two reasons. First of all, inspectors under the auspices of Homeland Security and the EPA don’t specifically address workplace-safety concerns. Secondly, a fine for $5,200 fails to act as much of deterrent for bad conduct.

As of the writing of this piece (Friday, Apr. 19) the national media hasn’t discussed the role that the workers’ compensation and civil justice system could play in recovery from this disaster. Though it was reported that no workers were in the plant, CNN reported that many first responders were killed responding to the explosion. Unfortunately, Texas is unique in having an opt-out workers’ compensation system. In other words, the families of the first responders killed responding to the fire may not be able to collect workers’ compensation benefits. If a Texas employer opts out of workers’ compensation, the employee can sue the employer for negligence. However the whole reason workers’ compensation was instituted was because many work injuries are not caused by employer or employee negligence. Maybe there was negligence on the part of the employers of the first responders, but if not – and there was no negligence by their employers – then the first responders will not be able to collect workers’ compensation benefits. Any employees of West Fertilizer Co who were killed or injured on the job would be in a similar predicament to the first responders. If the plant had been in Nebraska or Iowa, the workers in the plant would have been able to get workers’ compensation but likely would not be able to sue the plant.

However, if there was negligence by West Fertilizer Co and they opted out of workers’ compensation, then the killed and injured workers could sue West for negligence. Under Texas law, the fertilizer company would lose defenses such as contributory negligence and assumption of risk. Texas also has exemplary or punitive damages available for the injured and killed workers as well as other harmed by the accident.

Iowa has punitive damages, but Nebraska does not have them. In other words, a Nebraska community would have more trouble winning fair compensation for a fertilizer explosion than a community in Texas or Iowa, because Nebraska lacks punitive damages.

Shadows on the Triangle Shirtwaist Factory Fire Memorial

Today’s post comes from guest author Jay Causey from Causey Law Firm in Seattle. He points out that the media should do more to talk about the actual cost of goods for consumers by investigating and reporting on the huge safety lapses that occur in many outsourced factories, including the recent tragic fires in Bangladesh. Because the people who are risking their lives by working in substandard conditions are human, too. By focusing on how worker deaths affect businesses and the consumer’s bottom line, media outlets are missing the chance for consumers to understand the real price that other humans pay for United States goods, sometimes with their lives. And that is indeed, not humane, because I expect and hope for more from the media.

On March 25, 1911 a fire broke out at the Triangle Shirtwaist factory in New York City.  In 18 minutes 146 garment workers, mostly young women, were dead.  The hideous circumstances of the tragedy – widely depicted by the media with front-page pictures of the corpses of women who had jumped from the building windows to avoid being burned to death – incited a wave of public revulsion that contributed to New York’s enactment of one of the nation’s first workers’ compensation statutes.  This occurred in the so-called “Progressive” era of American political history – now largely a distant memory – when within the next decade the majority of states followed suit.

One hundred years later, similar tragedies in the world-wide garment industry, which feeds U.S. corporations like WalMart, H&M, and Gap, occur with scant media attention other than the possible effect of such disasters on corporate business operations.  In November of 2012, 112 garment workers died in a fire at a Bangladeshi factory producing WalMart clothing. (A manager had reportedly closed an exit gate after the fire alarm sounded, telling workers nothing was wrong and to just keep working.)  In another Bangladeshi factory on January 26, 2013, a fire killed seven garment workers who could not escape due to a blocked exit.

Rather than expressing outrage over these circumstances, U.S. media, including the New York Times, characterized these incidents not as human tragedies, inexcusably occurring in the 21^st century industrial world, but as “blows to the Bangladeshi garment industry.”  The fact is that with the globalization of that industry, these Bangladeshi workers are essentially “our” workers, making the clothes Americans wear, sold to us by U.S. corporate behemoths competing to do this at the lowest price possible they think will be acceptable to the American consumer.  The media is complicit in disconnecting these tragedies from our consciousness as intolerable – just as was the sense of our citizenry after Triangle – by focusing it’s reporting on the economic impact to the garment business and blandly parroting the boilerplate disclaimers of responsibility given them by the industry.

The garment corporations could easily afford to ensure their foreign contractors increase workers’ wages and institute workers’ safety measures with a minimal impact on the final price and their bottom line.

These incidents are almost never reported in a way that puts the question to the American consumer as to whether we’d pay a bit more per unit of clothing to ensure the safety of these workers rather than participate in the race to the lowest possible price.  Labor cost as a component of garment retail price is miniscule – one to two percent.  The garment corporations could easily afford to ensure their foreign contractors increase workers’ wages and institute workers’ safety measures with a minimal impact on the final price and their bottom line.

As it turns out, however, when plans were being developed in 2011 to improve fire safety at Bangladeshi factories, those efforts were quashed by WalMart and Gap, who determined that preventing worker deaths from fire would cost too much: “It is not financially feasible for the brands to make such investment.”

Don’t expect to hear much more about all this from the corporate media.

Source:  www.fair.org

Photo credit: Photo credit: Madison Guy / Foter.com / CC BY-NC-SA

We have been listening with interest to a recent National Public Radio (NPR) series about construction workers and businesses in Texas. The series about this industry confronts many of the issues that are being debated by society these days, whether in the judicial, executive or legislative branches. 

To add some context, these topics include employing immigrant workers; paying a living wage; calling an employee an independent contractor; and ensuring workplace safety, workers’ compensation, and payroll taxes are all done, practices that specifically are not happening in Texas, according to the stories. A notable quote from the first piece is “Texas is the only state in the nation without mandatory workers’ compensation, meaning hospitals and taxpayers usually end up shouldering the cost when uncovered construction workers are hurt.” And we think the information from the second piece is quite telling that the business owner “asked that NPR not use his last name because the IRS might take an interest in his business, designs and builds landscapes in the Dallas-Fort Worth area.” Because he treats his crew as “self-employed contractors,” meaning that the IRS would likely see his interpretations of tax law as illegal. From the story: “This is a key distinction. If Trent were to classify his workers as employees, he’d have to pay taxes, Social Security, unemployment and overtime. But by saying his workers are actually independent contractors – in essence, business owners – he’s off the hook.”

We think listening to these two pieces, at less than 15 minutes total, is a good opportunity to experience an applied illustration of what happens to the vulnerable when such protections as workers’ compensation are effectively dismantled for profit-taking and political reasons. Respected colleague Jon Gelman in New Jersey recently wrote a blog post that focuses on the first NPR report and “how bad it is for workers who get injured in Texas.”  

Although things are allegedly always more extreme in Texas, attacks on the vulnerable aren’t limited to that state, unfortunately. Ms. Cathy Stanton, president of the Workers’ Injury Law and Advocacy Group (WILG), and a respected colleague from Pasternack Tilker Ziegler Walsh Stanton & Romano in New York, recently wrote an extremely useful article about “Emerging Trends in Legislative Attacks on Injured & Ill Workers.”  

In Nebraska, the anti-worker, pro-business Nebraskans for Workers’ Compensation Equity and Fairness group is backing LB 584 that would dramatically limit protections that workers have when it comes to being injured through a concept called evidence-based medicine/utilization review. In addition to our firm writing numerous blog posts about this legislation, EBM/UR is #8 in Ms. Stanton’s list of “trends throughout the country which would negatively impact existing Workers’ Compensation benefits.” And according to this article, politicians in Tennessee are looking to gain some brownie points with business and insurance by overhauling the workers’ compensation courts to the detriment of injured workers. Iowa workers and attorneys have to contend with #6 on the list, restricting doctor choice, while a bill in Nebraska’s legislature is in the works to do the same if passed.

We agree with what Ms. Stanton writes: “All workers need to be aware of these trends because the likelihood of legislation being introduced in their state against their interests is strong. Employee immunity has remained untouched, but workers’ benefits are consistently under attack as a result of the collective lobbying efforts of the insurance industry and large corporations.   Unfortunately the great compromise is turning out to be one sided as workers are forced to endure multiple obstacles and hurdles to be entitled to fewer and more restricted benefits.”    

So we would encourage you to join us in educating yourselves about how workers’ compensation “reform” can lead to stories like NPR’s cautionary tales about the construction industry in Texas and to explore what’s going on in your state legislature. Finally, get involved in your state’s political process to advocate for workers!