Tag Archives: hate crimes

Workers compensation in a new “Lochner era”

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Last week I wrote about a 4th Ciicruit Court of Appeals decision, U.S.v Hill,  that upheld a federal hate crime conviction of an Amazon employee who assaulted his co-worker because he believed the co-worker was gay.

That post focused on how workers’ compensation laws could apply to a violent hate crime on the job. But in the big picture, Hill is an important case beause of its disucssion of the interstate commerce clause. The commerce clause is important to many areas of law including workers’ compensation

The Constitution gives Congress power to regulate commerce between states. The federal role in regulating interstate commerce has been argued in the federal appellate courts for nearly 200 years. The 4th Circuit does a good job of summarizing those arguments in U.S. v. Hill. (If you are lawyer or law student with a long flight coming up you can read the Lopez and Morrison decisions for even more background)

Workers’ compensation laws were enacted in the early 20th century when there was a relatively narrow definition of what constituted interstate commerce. Therefore Congress couldn’t enact general workers’ compensation laws, states had to enact workers’ compensation laws for them to be constitutional.

But the definition of interstate commerce was broadened in the 1930s during The New Deal. That broader definition of interstate commerce allowed Congress to enact the Occupational Health and Safety Act in the 1970s. That broad definition of interstate commerce also underlined federal efforts to impose minimum standards on state workers’ compensation laws. The threat of federal intervention in the 1970s and 1980s actually lead to states making their workers’ compensation laws more generous to employees. This stands in stark contrast to pro-corporate “reforms” that started in the 1990s once threats of federal intervention receded.

Federal hate crime laws are also based on relatively broad readings of the interstate commerce clause. The 4th Circuit broadly read the interstate commerce clause in the Hill case. But starting in 1995 with afore mentioned Lopez case, the Supreme Court has effectively narrowed the reach of the interstate commerce clause without formally overturning New Deal and post-New Deal case law broadly interpreting interstate commerce clause. The trial court and disenting judge in the 4th Circuit relied on that narrow reading of the commerce clause in Hill.

If you read the 4th Circuit’s and trial court decision in U.S. v. Hill along with Lopez and Morrison, most people would agree that the Supreme Court’s law on interstate commerce is a jumbled mess. The last time workers’ compensation laws were broadly improved on a national basis it happened under the threat of federal intervention. Employers likely wouldn’t have been able to challenge federal intervention in the 1970s or 1980s based on the interstate commerce clause. I’m much less sure of that in 2019. If workers’ advocates want federal intervention to improve state workers’ compensation laws, they may need to find other ways to make that intervention pass constitutional muster.

Lawyers who represent injrued workers tend to be skeptical of “federalization.” We have our reasons. Federal law can create serious hassles for medical charges related to air ambulances, negotating insurance liens under ERISA and Medicare Set Asides are a persistent headache as well.

But while federal law can cause hassles for injured workers and their lawyers, states gutting workers’ compensation laws is an a direct and existential threat to the well being of injured workers and their attorneys. The threat of federal intervention in state workers’ compensation laws in the 1970s and 1980s meant that workers’compensation plaintiff’s lawyers didn’t have that ever present sense of dread about the future of their practice.

Trial lawyers have had some luck fighting back against workers’ compensation reforms in state courts. But relief from the federal courts seems to be less likely. University of Michigan law professor Sam Bagenstos published a law review article about a return to the so-called Lochner Era when it comes to labor and employment law. This means case law will tend to favor employers. The Supreme Court’s interstate commerce clause decisions seem to algin with  Lochner era. Ultimately, appellate courts probably aren’t going to preserve let along substantially improve workers’ compensation laws. Those improvements will have to be made in the political arena.

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in Constitutional law, Workers Compensation and tagged , , .

Can a hate crime be a workers’ comp. claim?

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

What drew my attention to the 4th 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 4th 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. 

 

The offices of Rehm, Bennett & Moore, which also sponsors the Trucker Lawyers website, are located in Lincoln and Omaha, Nebraska. Five attorneys represent plaintiffs in workers’ compensation, personal injury, employment and Social Security disability claims. The firm’s lawyers have combined experience of more than 95 years of practice representing injured workers and truck drivers in Nebraska, Iowa and other states with Nebraska and Iowa jurisdiction. The lawyers regularly represent hurt truck drivers and often sue Crete Carrier Corporation, K&B Trucking, Werner Enterprises, UPS, and FedEx. Lawyers in the firm hold licenses in Nebraska and Iowa and are active in groups such as the College of Workers’ Compensation Lawyers, Workers' Injury Law & Advocacy Group (WILG), American Association for Justice (AAJ), the Nebraska Association of Trial Attorneys (NATA), and the American Board of Trial Advocates (ABOTA). We have the knowledge, experience and toughness to win rightful compensation for people who have been injured or mistreated.

This entry was posted in interstate commerce, Nebraska, Workers Compensation and tagged , , .