Author Archives: Catherine Stanton

Senior Care Workers Are Victims of Wage Violations

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

I found a recent story from California very troubling. The nation’s largest assisted living company agreed to pay $2.2 million to settle claims for underpayment and mistreatment of the workers who take care of the elderly. Lack of proper overtime pay, lack of mandatory meal and rest periods, and improper payment of mandatory training are examples of the mistreatment. 

The victims were the least-paid workers who did the hardest physical labor, according to the story. These people who bathed, fed, and provided the most hands-on care for our frail, elderly loved ones were denied wages and overtime pay for 7 years, according to the terms of the settlement.

Care for the old, frail and disabled is big business. Nearly 750,000 people are receiving assisted living care, according to the ProPublica article. And the industry is just going to expand, as folks are sicker but have higher expectations for care, while also living longer, according to this article from NPR

Fair treatment of our elders’ caregivers is essential. The wages are low, as most difficult jobs often are. Violating employment rules and statutes for businesses to save money and make larger profits seems particularly offensive for these workers. And they are not often protected from or informed of the hazards of their jobs, many of which can have serious consequences for workers’ health and well being, according to these blog posts from respected colleague Jon Gelman, an attorney in New Jersey: Protecting Healthcare Workers is a Goal of NIOSH and NIOSH Acts To Prevent Lifting Injuries For Home Healthcare Workers.

Congratulations to the workers and their representative who stood up to this very large employer that has around 500 facilities in the United States. It takes courage and tenacity to fight battles like this.

All of us who care about workers need to be aware that these are battle worth fighting. And that these battles can be won.

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Feds add prostate cancer to list of 9/11 health-related conditions

Today’s post was reported by the New York Daily News. We are commited to bringing you up-to-date news on the Zadroga Bill and how those injured as a result of the September 11th attacks can find help.

DIGITAL IMAGE

Prostate cancer has been added to the list of World Trade Center-related health conditions.

The federal Department of Health and Human Services added the cancer to its register Thursday after being petitioned by the Patrolmen’s Benevolent Association, the city police officers union.

The union cited a scientific study that found a 17% greater than expected rate of prostate cancer among first responders.

The addition will cost the WTC Health Program an estimated $3 million to $6 million a year.

“It’s a minor victory for the 9/11 community and a huge victory for those with prostate cancer,” said John Feal, who advocated for the Zadroga 9/11 health bill, named for NYPD officer James Zadroga, who died of respiratory problems following his rescue efforts at Ground Zero. Corinne Lestch

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Careful What You Wish For: Denying Worker’s Compensation for Undocumented Workers

Today’s post comes from guest author Charlie Domer, from The Domer Law Firm.

Immigration reform is a continual and vexing issue in Washington. While politicians, lobbyists, and service organizations grapple with potential resolutions, there is no disputing the existence of illegal immigrants working for employers in our country. And when there are employees working, work injuries happen.  This may be especially true with the undocumented population who may be more susceptible to significant injuries because many perform more dangerous or hazardous jobs that other may not accept. For further information, see Do Immigrants Work in Riskier Jobs? and the CDC’s report on work-related injury deaths among Hispanics.

…excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants.

When injured, are these undocumented workers eligible for worker’s compensation? Some harshly argue that these workers should receive no benefits, as they are not working legally in the country. However, one of the underlying pillars of worker’s compensation is that the expense of workplace injuries (covered by insurance) should be placed on the employers who profit from the workers’ labors. Additionally, excluding illegal immigrants from worker’s compensation coverage could create a financial incentive for employers to keep hiring illegal immigrants—a practice that is against federal law. 

The worker’s compensation laws in our country do not have a definitive answer to this question—though the trend is toward coverage of undocumented workers. Many states do Continue reading

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Depositions: When the truth is “I don’t know”

Today’s post comes from guest author Brianne Rohner, from Rehm, Bennett & Moore.

“Tell the truth” is some good advice we’ve all heard and hopefully listened to once in a while. However, when it comes to having your deposition taken, this advice can take on a slightly different meaning. Our experienced attorneys guide hundreds of clients through depositions each year, so we often see this challenge.   

It is human nature to seek answers to our questions. But sometimes in our quest for satisfaction, we have a hard time resisting the urge to make a leap or two, or start to speculate, or make assumptions about potential solutions. This is particularly true when we are faced with a formal line of questions such as those asked in a deposition. We feel guilty and lacking somehow if we don’t know the answer to a question, or we can’t remember a name or date or what happened between the blow to the head and waking up in the hospital. … It gives us a good feeling inside and relieves a little pressure to at least try to put the puzzle pieces together for the person asking the question. We’re nervous, and it just goes against our helpful natures to simply say “I don’t know.” 

Sometimes, though, this very human trait can lead to problems for a case. At some point in the midst of these leaps in logic and speculation on answers to questions, our answer can transform into something that is no longer the truth. While speculating or thinking out loud isn’t lying, when you get down to it, it isn’t really telling the truth either. Sometimes the absolute, 100% honest-to-goodness truth is simply, “I don’t know” or “I don’t remember,” and that is a perfectly okay answer to give. When your words have the power to potentially damage your case, it is important to choose them wisely, and remember you do not need to give in to the pressure of making assumptions or jumping to conclusions to come up with a satisfactory answer. Just tell the truth.

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Good News for American Workers

Today’s post comes from guest author Rod Rehm, from Rehm, Bennett & Moore.

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.

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Opioid Use in Worker’s Compensation

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Today’s post comes from guest author Tom Domer, from The Domer Law Firm.

Many of my back-injured clients use pain relief medication in the opioid family: Hydrocodone (Vicodin), Oxycodone (Oxycontin or Percocet), Fentanyl (Duragesic or Fentora), Methadone, and Codeine.  Many variations of opioids exist, each with a different level of potency. The worker’s compensation industry has labeled excessive opioid use “an epidemic, particularly targeting worker’s compensation.” The Center for Disease Control has noted the problem of opioid abuse as a national danger.

The CDC latest statistics show close to 40,000 drug overdose deaths each year in the United States, more than half of which involve prescription drugs. Deaths in which opioids are used now exceed deaths involving heroin and cocaine combined. The drug overdose deaths are more numerous that motor vehicle crash deaths and the numbers have gone up every year since the turn of the century. One contributing factor is that many work-related injuries are back injuries, for which doctors increasingly prescribe opioids for both short and long term to address pain. CDC medical epidemiologist Dr. Leonard Paulozzi recently noted worker’s compensation medical providers may be exceeding guidelines from the American College of Occupational Environmental Medicine regarding the use of opioids and how long they should be used. Dr. Paulozzi noted 42% of workers with back injuries had opioid prescriptions in the first year after the injury, most of them after their first medical visit, but 16% of those workers were still receiving opioids a year after the injury. He noted while opioids might be good for use as acute medication, for example within six weeks after the injury, continuation of opioids is not indicated beyond that short term use.

Prescription medication has become a bigger portion of medical expense in all States, especially if the worker becomes dependent or addicted to the opioid medication to control pain.  Opioids are generally prescribed for several reasons in worker’s compensation claims, including catastrophic injury with chronic pain and injury involving surgical treatment necessitating pain control and general pain control.

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Employee Rights Hurt by Supreme Court Decisions

United States Supreme Court

Today’s post comes from guest author Jon Rehm, from Rehm, Bennett & Moore.

Employee rights in the workplace took a step backward with the Vance and Nassar decisions made by the U.S. Supreme Court. So what does this mean in concrete terms for employees?

Vance: The main takeaway from Vance is that employees must tell upper management and human resources about workplace harassment. This has been federal law in the Court of Appeals for the 1st Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico and Rhode Island) and the 8th Circuit (Nebraska, Iowa, North Dakota, South Dakota, Minnesota, Missouri and Arkansas). In order to sustain a workplace harassment claim under federal law, employees must now be able to show that management knew about harassment and that management failed to take effective action against the harassment.

Nassar: Nassar made it more difficult to prove retaliation under federal law. In the 5-4 majority decision written by Justice Samuel Alito, the court wrote that it was concerned about the increase in retaliation claims filed in the EEOC and the potential for “frivolous litigation.” The effect of this case is that even more retaliation cases will be decided by judges under summary judgment instead of being decided by juries.

However, just because it is harder to bring a discrimination or retaliation case under federal law doesn’t mean that an employee can’t bring a case under state law that could be more favorable to the employee. But employees pursuing wrongful termination cases in state court should be aware that state court judges oftentimes follow federal court judges in interpreting state fair-employment laws.  State court judges might find the Supreme Court’s concerns about “frivolous” retaliation suits to be well founded. 

I think Justice Alito was off base in his concerns about “frivolous” retaliation where employees who are about to get fired file complaints in order to preserve their job or set themselves up for a wrongful termination lawsuit. Any competent employee-rights attorney knows that retaliation suits are difficult to win. I turn down about 9 out of 10 people who call my office who claim they were wrongfully terminated. Wrongful termination suits are costly and time consuming. I am not going to invest time and money in a suit where I will likely get dismissed and possibly face financial sanctions under court rules and also possibly be opened up to paying costs to the prevailing employer under federal fair-employment law. I am doubly suspicious of employees who are fired shortly after they file discrimination or other claims. Employers know that if they fire someone after filing some sort of complaint that it appears to look bad. But courts will uphold that reason if they had a legitimate reason to fire the employee. In other words, the employee who knows they are skating on thin ice and then files a complaint is going to lose a wrongful termination case. The decision in Nassar won’t stop disgruntled employees from filing claims with fair-employment agencies, it will just make it more difficult for employees with legitimate wrongful termination claims to obtain justice.

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Bangladesh Building Collapse Highlights Need for Safety Inspections

Bangladeshi Workers Protest Deaths

Today’s post comes from guest author Kit Case from The Causey Law Firm.

    The total number of workers killed or injured in the collapse of a building in Savar, Bangladesh on April 24, 2013 is not yet known, as rescuers continue to search for survivors.  As of Sunday, April 28th, the count was at least 377 dead.  Many of those killed were workers at clothing factories housed in the building, known as Rana Plaza, where fire broke out in the wreckage of the building, temporarily suspending rescue efforts as of April 24.  Efforts will restart with the aide of heavy equipment, which had previously been avoided in an effort to not injure those still buried in the rubble.  There no longer are assumed to be any victims remaining alive, although hundreds remain unaccounted for. The death toll surpassed a fire five months ago that killed 112 people and brought widespread pledges to improve worker-safety standards. But since then, very little has changed in Bangladesh.

Human Rights Watch reported on the building collapse, noting that it knows of no cases in which the Bangladeshi government has ever prosecuted a factory owner over the deaths of workers.

    USA Today reported on the tragedy with the news that Mohammed Sohel Rana, the fugitive owner of the illegally-constructed building, was apprehended by a commando force while trying to flee to India.  Rana was returned to Dhaka to face charges of negligence. Rana had been on the run since the building collapsed Wednesday. He last appeared in public Tuesday in front of the Rana Plaza after huge cracks appeared in the building. Witnesses said he assured tenants, including five garment factories, that the building was safe. Hours later, the Rana Plaza was reduced to rubble, crushing most victims under massive blocks of concrete.

    Human Rights Watch reported on the building collapse, noting that it knows of no cases in which the Bangladeshi government has ever prosecuted a factory owner over the deaths of workers. Many factory owners in Bangladesh are parliamentarians or members of the main political parties. In an interview with a government minister in 2011, the minister told Human Rights Watch that it would be “impossible” to improve workers rights so long as factory owners were senior members of political parties. 

    According to the Human Rights Watch report, Bangladesh has notoriously poor workplace safety inspection mechanisms. The Ministry of Labour’s Inspection Department, responsible for monitoring employers’ adherence to Bangladesh’s Labour Act, is chronically under-resourced. In June 2012, the Inspection Department had just 18 inspectors and assistant inspectors to monitor an estimated 100,000 factories in Dhaka district, where the Rana building is located. The garment sector alone employs an estimated 3 million workers. 

    According to the US Department of Labor Bureau of International Labor Affairs, workers in the Bangladeshi garment factories are primarily women – 75 to 90 percent – and children ranging in age from eight to fourteen years.  Most of the children are girls with an average age of just over 13 years.  Working conditions are described in the USDOLreport as follows:

        Garment factories are located in multi-storied buildings throughout Dhaka including Mirpur, Malibagh and Rampura districts (allegedly one of the worst areas), and the Free School District area. Working conditions in general in Bangladesh are far below western standards. On a par with other factory settings, garment factories are often dimly lit, with poor ventilation, and open for very long hours. However, some factories operate with good lighting and are not overly hot or crowded. The workers, mostly female, work without a break during their shift. Too often the factory doors are locked. Sometimes guards with keys stand by the locked gate; other times no one able to unlock the iron grating is near. Many times the locked gate is the only entrance or exit to a factory. The workers, including children, are frequently locked into their work place at the beginning of the morning shift and not let out until the end of the workday, and in some cases not until the next day. Overtime hours occur during peak periods in the production cycle when manufacturers are rushing to fulfill their export quotas. AAFLI’s 1994 survey of garment factories found that, like adult workers, children typically work 10 to 14 hours a day, with a half-day off on Friday.

    The similarities  are chilling to the working conditions of American garment workers at the Triangle Shirtwaist Factory prior to the tragic fire on March 26, 1911 that forever bears the same name. The horrific deaths from the Triangle fire, witnessed through photographs printed in the news media around the world, spurred a swift and aggressive response by workers and labor activists. Their response led to the establishment of many of the protective organizations American workers now rely on, including the workers’ compensation system, the American Society of Safety Engineers, and the U.S. Department of Labor.

    As with the Triangle fire, this should be a call to action as well as a time for reflection.  We, as consumers, are tied to the businesses in Bangladesh that supply garments to American companies.  That connection gives us the power to effect change in the working conditions of the Bangladeshi factories by insisting that American corporations purchase garments for sale in the US from safety-inspected factories that meet minimal international standards for basic worker protection.

 

 

 

Photo credit: dblackadder / Foter.com / CC BY-SA 

 

 

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