Why would a blog entitled “Nebraska Workers’ Compensation Watch” post about a federal criminal case in Virginia?

What drew my attention to the 4^th Circuit’s decision in U.S. v Hill was that involved two things relevant to workers’ compensation: 1) a workplace assault and 2) a discussion of the interstate commerce clause. I will write about the workers’ compensation issues arising from hate crimes on the job today and post about the constitutional law issues on Monday.

Factual background

Hill assaulted a co-worker in at an Amazon warehouse in Virginia because he perceived him to be gay. Hill was charged under federal hate crime laws. He was ultimately convicted by a jury, but his conviction was overturned by the trial judge who found federal hate crimes statute violated the interstate commerce clause. The 4^th Circuit Court of Appeals reversed the trial court’s decision. (You can read a better summary of the Hill case in a blog post written by New York civil rights attorney Eric Lesh. I wouldn’t have known about the case without seeing his post on Twitter.)

Can a hate crime on the job be a workers’ compensation case?

The answer to the question depends on your jurisdiction. Not every injury to an employee during work hours or on company premises is necessarily covered by workers’ compensation. The injury has to arise from an employment risk. In Nebraska, an injury incurred from a workplace assault is compensable if it is at least facilitated by work, but it is not compensable if it is related solely to personal reasons.

I believe a hate crime at work, could be a close legal case. Arguably a bias crime would be motivated by personal reasons not related to work. On the flip side, a hate crime arguably isn’t motivated by anything thing else than a status they could share with millions of people. A racist, bigot or homophobe just wants to target someone belonging to a group they dislike.  if work facilitates that targeting, then the hate crime should arguably be covered under the Nebraska Workers’ Compensation Act.

The practical problem with a legal case for an injured workers is that it gives a workers’ compensaiton insurer a reason to deny a claim. This means that a hate crime victim assauted at work would be stuck paying for medical expenses out of pocket depedning on what type of health insurance they have or whether they even have health insurance.

Fortunately in the Hill case, the injured employee didn’t appear to miss much work. The dark cloud to that silver lining is that if the employee was stuck with a medical bill an attorney may be reluctant to take their csse if there isn’t a chance of monetary recovery in the way of temporary or permanent disability.

Physical assaults can also lead to mental trauma. Most states, including Nebraska, allow so-called physical-mental claims when a mental injury stems from a physical injury. In practice, mental injuries can be difficult to quantify if an injured employee has returned back to work. The difficulty of valuing mental injuries could discourage attorney involvment in a workers’ compensaiton case involving a hate crime.

I believe states should pass laws creating a presumption of compensability if an employee is injured on the job as part of a hate crime. Such a presumption would make it less likely that hate crime victims would be stuck with medical bills as a result of a violent hate crime in the workplace. A presumption would also encougage employers to try to prevent violent hate crimes in the workplace. In that regard workers’ compensation laws would work hand-in-glove with occupational safety laws like OSHA and state and federal civil rights laws.

A hate crime in the workplace could also be an employment discrimination case in certain circumstances. This is important because often times when an employee is the victim of an assault from on the job they could be forced to chose between a workers’ compensation case and a tort case under the so-called exclusive remedy of workers’ compensation. But an employee could recover in workers’ compensation without effecting their right to collect on a workplace harassment case. Any criminal sanction against the assailant would also have no effect on a workers’ compensation claim.

Federal hate crime laws only apply in states without hate crime statutes or hate crime statutes that address a bias crime. There was federal jurisdiction in Virginia because, Virginia’s hate crime legislation does not cover sexual orientation. Nebraska law does cover sexual orientation, so an on the job hate crime motivated by sexual orientation would not be a federal criminal case.

Hate crimes laws are like workers’ compensation laws in that they tend to be state specific. The reason workers’ compensation laws are state specific is related to how the Supreme Court interpreted the interstate commerce clause when workers’ compensation laws were enacted. I will discuss this issue more in depth in my next post.