Tag Archives: supremacy clause

U.S. v. Washington: A rock, paper, scissors theory of federal preemption of workers’ comp. laws?

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Summary: When it comes to the interaction of federal law and workers’ compensation, federal laws invoking national security are the rock that crushes state law scissors, but federal laws regulating the domestic economy more are more like paper which cut get by scissors.

The Supreme Court stuck to intergovernmental immunity and stuck it to ill workers at the Hanford nuclear site in eastern Washington state.

In a 9-0 decision written by now retired Justice Stephen Breyer the court held in United States v. Washington, that Washington state could not enact a presumption of compensability under their state workers’ compensation act for workers made ill at the Hanford nuclear site. The court ruled that the presumption unlawfully discriminated against the federal government.

For 30 years the Department of Defense and Department of Energy produced plutonium for nuclear weapons at the Hanford site. The state of Washington passed legislation to make it easier for workers at that site to collect workers’ compensation benefits under their state law. The federal government challenged the law. Ultimately the court relied on the landmark case of McCulloch v. Maryland to hold that Washington’s law impermissibly discriminated against the federal government.

A decision of limited impact?

Justice Breyer’s opinion included no discussion of the merits of presumptions in workers’ compensation or the substance of workers’ compensation laws at all. I was somewhat concerned about where such discussion could lead. The United States Supreme Court had addressed workplace injuries cases involving nuclear plants in the Goodyear Atomic and Silkwood cases.

In both cases the court had rejected arguments from employers that certain workers’ compensation laws and tort laws were impermissible state regulations of an industry that was the regulatory responsibility of the federal government. But there were dissents in both Silkwood and General Atomics that would imply presumptions of compensability would be impermissible burdens on the federal government Fortunately, for worker-advocates, those dissenting opinions weren’t addressed by the court – even in a dissenting opinion.

An outlier decision?

I believe United States v. Washington is an outlier when it comes to the interaction of workers’ compensation laws and federal laws. Recently, the court declined to hear a Minnesota case that would have resolved the issue of whether states can require insurers to pay for medical marijuana. Marijuana is illegal under federal law and many states believe that law preempts state’s from requiring it to be covered under workers’ compensation laws.

Last year the court also declined to resolve a conflict between states and federal circuits as to whether the federal Airline Deregulation Act (ADA) preempted state laws requiring air ambulances charges to be paid at discounted rates under state workers’ compensation laws.  The court also declined to hear challenge under the ADA from airlines against a Washington state law requiring paid leave for airline workers.

So why did the Supreme Court take up the Hanford case? I believe because of the national security implications of the case.

Federal supremacy and national security

Though Justice Breyer didn’t expressly mention national security in his opinion in United States v. Washington, the federal government clearly alluded to it in their brief.  The federal government brought up Hanford’s role in the development of the atomic bomb during World War II.

Interestingly enough, in his last reported decision as a Supreme Court justice, Breyer penned the majority opinion in Torres v. Texas Department of Public Safety. In that case, a 5-4 majority held that states did not have sovereign immunity from private suits under the Uniformed Services Employment and Reemployment Rights Act (USERRA).

In Torres, Breyer wrote that the authority of Congress to build and maintain the armed forces under Article I, Sec. 10 of the Constitution overrode state sovereign immunity when it comes to suits against states under USERRA.

Though Torres and United States v. Washington lead to opposite outcomes for the employees involved in the case, they both demonstrated how the “rock” of national security beats the “scissors” of state sovereignty when it comes to the Supremacy Clause. Recent Supreme Court decisions relating to the interaction between workers’ compensation law and federal law regulating the domestic economy, show that those federal interests are more like “paper” which gets cut by scissors.

The offices of Rehm, Bennett, Moore & Rehm, 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.

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Hopefully SCOTUS just sticks to intergovernmental immunity in Hanford occupational disease presumption case

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The United States Supreme Court is set to hear arguments Monday on what is hopefully the narrow issue of whether inter-governmental immunity applies to a Washington state law that creates a presumption of compensability for occupational diseases for workers at the federal Hanford nuclear site.

Under the Supremacy Clause, states can’t tax or regulate federal entities without the permission of the federal government. During the New Deal era, Congress allowed state workers’ compensation laws to apply to workers’ on federal projects.

In United States v. State of Washington, the federal government is arguing the State of Washington is unlawfully discriminating against the federal government by enacting a law that only applies to workers at the Hanford site. The state of Washington amended the statute to apply the presumption to all nuclear workers and is arguing the federal government’s case is now moot.

So why should anyone outside the state of Washington care about this case? Beyond the conflict between state workers’ compensation laws and federal law (what Professor Micheal Duff sometimes deems empty preemption), this case interests me because it places the issue of issue of burden-shifting presumptions in front of the United States Supreme Court.

To be clear, the federal government isn’t contesting the state of Washington can create presumptions. But in the wake of the COVID-19 pandemic, many states created presumptions of compensability for COVID-19 exposure in the workplace because of the difficulty of proving whether COVID-19 was covered under traditional workers’ compensation statutes. Some of the employer/insurer-side of workers’ compensation are complaining about the unfairness of these presumptions. Thankfully, no one from the employer/defense-side has filed an amicus brief in this case.

However, the Workplace Injury Law and Advocacy Group (WILG) filed a brief in support of the Washington law. (I am a board member for WILG) I think the WILG brief does a good job of arguing that workers’ compensation is traditionally a state law concern and that presumptions have been found constitutional by state Supreme Courts. But I have a lingering fear about some footnote, dicta, concurring opinion or dissent that criticizes the idea burden-shifting presumptions in general. While that language wouldn’t be controlling on states, it could certainly be persuasive for parties seeking to challenge presumption laws.

The offices of Rehm, Bennett, Moore & Rehm, 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.

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Three ways to make sense of Masterpiece Cakeshop

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The Supreme Court’s decision in Masterpiece Cakeshop was not as harmful to LGBT rights or civil rights laws in general as feared.  In fact, Masterpiece was cited by the Arizona Court of Appeals in upholding a Phoenix municipal ordinance prohibiting LGBT discrimination in public accommodation.

But court watchers were left scratching their collective heads by the mixed signals sent by the court. Given a week to digest the decision and read over the commentary, I think Masterpiece is understandable in the broader context of other decisions made by the Roberts court. I think three trends explain Masterpiece: 1) The Court’s favor of protected status over protected activity) 2 skepticism of the “administrative state” and 3) the use of federal supremacy by the court to rein in progressive-leaning states and cities.

Protected Status > Protected Activity

Sexual orientation and gender identity are considered a type of protected class. Sometimes theses these statuses are protected expressly, like they are in state and municipal laws, or they are covered by sex as held by many federal courts. Civil rights laws protect everyone based on various protected statuses such as race, nationality, religion, sex, disability and age. Everybody is covered by multiple protected classes. Protected class discrimination is fairly non-controversial because most people agree that someone should not be discriminated against based on immutable traits like race or sex. Sexual orientation and gender identity are just additional protected classes that would apply some people.

This isn’t to say that LGBT rights are universally accepted. The fact there are so many litigated cases, like Masterpiece, based on direct evidence of discrimination should be proof of that statement. But even in conservative-leaning states like Nebraska, business interests have pushed to expand anti-discrimination laws to LGBT individuals in an effort to have cities and states be seen as “open for business”. That’s part of the reason that Omaha, like Phoenix, has a municipal ordinance prohibit discrimination based on sexual orientation and gender identity.   The Materpiece decision could be very persusasive to a Nebraska court hearing a challenge to Omaha’s laws prohibting discrimination agains the LGBT community.

Business looks less favorably upon protected activities than protected statuses. These are activities that individuals cannot be sanctioned for or retaliated against for engaging. From a business point of view the most problematic problematic activity is engaging in unionization or striking. Striking has re-emerged as a popular tactic for workers in the wake of teachers strikes and a possible strike by UPS drivers. The Supreme Court generally takes a business-friendly view on protected activity. In Epic, the court took a narrow view of what constituted protected concerted activity under the National Labor Relations Act. Earlier this term, in Somers v. DRT,  the court narrowed the definition of a whistleblower under Dodd-Frank. The split between how the court treats protected activities and protected statuses became apparent to me in 2013 when the court decided the landmark LGBT civil rights case Windsor in the same term they decided Nassar which raised the burden of proof for employees in Title VII retaliation cases. The same split between protected activity and protected activity is apparent in 2018 with Epic and Somers contrasted with Masterpiece.

Dislike of the Administrative State

The reason why Jack Phillips “won” Masterpiece was because of negative comments about religion made by a lone commissioner on the Colorado Commission on Human Rights. Phillips was being civilly charged by state administrative agency. The  Roberts court, Justices Gorsuch, Thomas and Alito in particular, are skeptical of the role of  administrative agencies on separation of powers grounds. That skepticism was evidenced by Justice Gorsuch’s comments about the National Labor Relations Board in Epic. ThIS terrm the court also heard what could be a close case about whether the Securities and Exchange Commission can use Administrative Law Judges to punish misconduct in the securities industry that could have broad — if not disruptive — implcations. If nothing else, Masterpiece is a bench slap to an administrative agency.

I also believe that Masterpiece could have a chilling effect on state and local human rights commissions.  I have served on the Lincoln Commission on Human Rights since 2014.  Even before Masterpiece was decided, commissioners were given a memo describing the concerns expressed by Justice Kennedy in oral arguments in Masterpiece about the comments made by the Colorado Civil Rights Commissioner. Civil rights commissioners often engage in spirted discussions about what constitutes unlawful discrimination in a particular case. It would be unfortunate if Masterpiece lead commissioners to self-censor over fears that those comments could be used by the parties they believe could be engaged in unlawful discrimination.

Federal supremacy over states and cities

Jack Phillips succeeded in making a first amendment argument that the Colorado Commission on Civil Rights violated his freedom of religion by making impermissible comments about his religion. Phillips resorted to federal law to strike down a decision made by the state agency of a progressive-leaning state. Much of the arbitration case law that supported the Epic decision was based on the Federal supremacy of  the Federal Arbitration Act over state laws that  prohibited arbitration. Many of these state laws were passed by “blue” states such as California. By overruling a decision made by the Colorado Commssion on Civil Rights, the Roberts court was able to assert some measure of federal supremacy over a progressive-leaning state.

The offices of Rehm, Bennett, Moore & Rehm, 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.

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