Author Archives: Catherine Stanton

Alternatives to Workers’ Comp: Paranoia or Possibility

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

I joined a national organization of lawyers representing injured workers (the Work Injury Law and Advocacy Group) twenty years ago when it was first formed. Then, I heard horror stories about legislators messing with an otherwise stable workers’ compensation system after every election cycle. My colleagues in other states were constantly fighting battles over workers’ compensation “deform.” 

I thought we were insulated in Wisconsin because we had a workers’ compensation advisory council composed of labor and management who every two years fought out a compromise bill and submitted it to the legislature, which automatically rubber-stamped the proposed bill without changes. That changed in Wisconsin in 2014. For the first time in nearly 50 years, the Republican legislature rejected the “agreed upon” bill proposed by the workers’ compensation advisory council, despite the approval of the bill by management members.

Governor Scott Walker’s most recent budget contains a provision to dismantle the workers’ compensation system as we know it. Those of us representing injured workers (and those rational members on the management side) are busy lobbying to remove the workers’ compensation dismantling provisions from the budget.

It is no secret that many major corporations dislike workers’ compensation, despite statistics indicating premiums are at their lowest for employers, and profits at their highest for insurers. However, nearly two dozen major corporations including Wal-Mart, Nordstrom’s and Safeway are behind a multi-state lobbying effort to make it harder for workers hurt on the job to collect workers’ compensation benefits. The companies have financed a lobbying group the Association for Responsible Alternatives to Workers’ Compensation (ARAWC) that has already helped write legislation designed to have employers “opt out” of a State workers’ compensation system. ARAWC has already helped write legislation in Tennessee. That group’s executive director Richard Evans told an insurance journal in November that the corporations ultimately want to change workers’ compensation laws in all fifty states. Lowe’s, Macy’s, Kohl’s, SYSCO Food Services, and several insurance companies are also part of the effort. The mission of ARAWC is to pass laws allowing private employers to opt out of the traditional workers’ compensation plans that almost every state requires businesses to carry. Employers who opt out would still be compelled to purchase workers’ compensation plans, but would be allowed to write their own rules governing when, for how long, and for which reasons an injured employee can receive medical benefits and wages. Two states, Texas and Oklahoma, already allow employers to opt out of State-mandated workers’ comp. In that state, for example, Wal-Mart has written a plan that allows the company to select the physician and the arbitration company that hears disputes. A 2012 survey of Texas companies with private plans found that less half the companies offered benefits to seriously injured employees or the families of workers who died in workplace accidents. 

Oklahoma passed an opt out measure in January 2014 and the oil and gas industry along with major retailers such as Hobby Lobby pushed hard for the change. ARAWC wants to take that Texas and Oklahoma model nationwide. Seeing the workers’ compensation provision in Wisconsin’s budget bill as part of this overall “scheme” may seem paranoid, but the history of recent “deform” legislation suggest the connection is at least a possibility. 

See the complete article at http://www.motherjones.com/politics/2015/03/arawc-walmart-campaign-against-workers-compensation.

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Tragic Cannery And Construction Site Deaths Highlight Need For Safety Enforcement

I was horrified when I recently read about a worker for a tuna company who was killed when he was cooked to death at the company’s California canning factory. According to the New York Daily News, the worker, Jose Melena, was performing maintenance in the 35-foot oven when a co-worker failed to notice he was still in the oven and turned it on to begin the steaming process of the tuna. The co-worker assumed Melena had gone to the bathroom. 

While there apparently was an effort to locate the worker, his body was not found until two hours later when the steamer was opened after it completed its cooking cycle. As an attorney, my clinical instinct shifts my focus to the mechanics of the accident and to fault. There are so many unanswered questions.  Why didn’t anyone check the machine before it was turned on? Why wasn’t the machine immediately shut down when they realized the worker was missing? As a person with feelings and emotions, I think of the horror and pain he must have gone through and the loss experienced by his family and friends as a result of his death. It is almost too awful to imagine. 

While this terrible tragedy occurred in 2012, it appears the reason that the story is currently newsworthy is that the managers were only recently charged by prosecutors in the worker’s death for violating Occupational Safety & Health Administration (OSHA) rules. Closer to home, more recent and just as unfortunate were the cases of the construction worker in Brooklyn who fell six stories from a scaffold while doing concrete work and a restaurant worker who was killed in Manhattan when a gas explosion destroyed the building he was working in. 

These stories highlight why safety procedures are so important. In some cases, there are no proper safety precautions in place. In others, there are safety measures in place but they may not have been followed. In rarer cases, crimes are committed that result in workplace fatalities. The failure to follow or implement proper safety procedures was a calculated risk, a terrible misstep, or a downright criminal act. In the case of the worker who died when he fell from a scaffold, there has been speculation that he may not have been attached properly to his safety harness. In the tuna factory death, the managers were charged with violating safety regulations; they face fines as well as jail time for their acts. In the gas explosion, there are allegations that the explosion was caused by workers’ illegally tapping into the restaurant gas line to provide heat for upstairs tenants. Prosecutors were trying to determine criminality; whatever the final outcomes, it appears that in these three instances the deaths were preventable. 

According to OSHA rules, employers have the responsibility to provide a safe workplace. They must provide their employees with a workplace free of serious hazards and follow all safety and health standards. They must provide training, keep accurate records, and as of January 1, 2015, notify OSHA within eight hours of a workplace fatality or within 24 hours of any work-related impatient hospitalization, amputation or loss of an eye.  

While this may seem like a small step, anything that results in creating higher standards for employers or encouraging them to keep safety a priority is always a good thing. These three examples are only a small percentage of the workplace deaths that occur each year. While not every death is preventable, everyone is entitled to go to work and expect to leave safely at the end of their shifts.  

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.

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Higher Wages is Smart for Business

Today’s post was shared by US Labor Department and comes from blog.dol.gov

As President Obama and Secretary Perez have said, raising the minimum wage isn’t just the right thing to do for working families it’s the smart thing to do to grow our economy.

And business leaders of all kinds agree, saying that they see higher wages as a sound business investment. They know that higher wages boosts productivity and reduces the high costs associated with turnover. They also know that consumer spending drives our economy; more money in people’s pockets means more customers for them. Add it up, and reduced training costs and more customers can grow a business, and create jobs.

That’s why these businesses, large and small, have all taken steps to raise their starting wages.

While progress is happening with more and more businesses raising their starting wages, and states and localities are taking action, the national minimum wage still needs to be raised. For too many workers in too many states the harsh reality is that the minimum wage has languished and lost ground for more than 5 years. It’s important that Congress take action so that we don’t leave them behind.

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Yes, Monetary Benefits Are Available For Injured Volunteer Firefighters

I recently read the news about a benefit fundraiser being held for the widow of a Long Island volunteer firefighter who died in the line of duty when the floor he was on during a fire collapsed. The volunteer, only 43 year old, left behind a widow and a 19-year-old daughter.  He had served his community for 17 years as a volunteer and in addition, worked for the Nassau County Public Workers Department. This tragedy once again reminds us of the dangers of the firefighting profession.

Most New York City residents are protected by a paid force of brave men and women who are employed by the City. The Fire Department of New York is the largest municipal fire department in the United States, employing more than 10,000 uniformed firefighters. I am proud to say that my brother Danny serves as a Lieutenant in the FDNY, and my brother Bob and my dad are both retired from the force.   

There are still nine volunteer fire companies left in New York City that respond to calls in their neighborhoods; more than half of them are located in Queens – West Hamilton Beach, Broad Channel and the Rockaways. As these men and women are not compensated for their service to their communities, most of them have paying jobs elsewhere. However, they are still entitled to benefits if they are ever injured on the job. The New York State Workers’ Compensation Law provides benefits for those volunteers injured in the “line of duty” or engaged in activities pursuant to orders or authorization. These duties include, but are not limited to, participation in fire drills; travel to and from fire calls or authorized activities; firehouse duties; property inspections; attendance at fire instruction and training; and authorized drills, parades, funerals, reviews or tournaments. An “injury” includes any disablement of a volunteer firefighter that results from services performed in the line of duty and any disease that may arise from an injury.    

Monetary benefits include payments for loss of earning capacity up to $400 per week, death benefits to surviving spouse and/or minor children up to $800 per week, and schedule loss-of-use awards based upon loss of function to a limb, loss of vision, loss of hearing, and facial disfigurements. Additional monetary awards are given to cover funeral expenses. Furthermore, volunteer members are entitled to receive necessary medical care for treatment and recovery from their disabilities. Notice must be given to the proper party within 90 days of the incident, and claims must be filed within two years of the accident or death. 

In many instances the monetary awards are inadequate to properly compensate an injured volunteer or a surviving spouse or child of a hero. The fact that a fundraiser is even necessary for the family of the firefighter who was killed in Long Island is inconceivable. While it is clear that Volunteer Firefighter benefits will never truly compensate for those who are injured or killed on the job, the knowledge that there are benefits available will hopefully ease some of the financial strains for those in our community who serve. I saw a wonderful quote recently that said “volunteering is the ultimate exercise in democracy. You vote in elections once a year, but when you volunteer, you vote every day about the kind of community you want to live in.” So to those who serve, I am truly grateful, and to the family of fallen hero Joseph Sanford, Jr.  – his sacrifice will never be forgotten.

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717.   

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Why CNAs and Home Health Aides Should Care about the Fight over a Federal Regulation

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

A U.S. District Court in Washington, D.C., recently struck down a federal regulation that would mandate that home health aides are paid the minimum wage and paid overtime under the federal Fair Labor Standards Act (FLSA). Though the decision will likely be appealed, this decision is still a bad decision for the men and women who do the hardest jobs in health care – home health aides and certified nursing assistants.

Why home health aides aren’t covered by federal wage laws

Home health aides were exempted from the FLSA 40 years ago in order to make caring for the elderly less expensive. However, companion care has become a big and very profitable business. An index of publically traded home-health-care stocks has consistently outperformed the stock market as a whole for the last 13 years. This profitably is due in part to the minimum wage and overtime exemptions for home health aides.

How the home health exception affects other jobs in the medical field

The federal government estimates that nearly 1 million are employed as home health aides, while private sources estimate that number as 2 million. Home health is also a fast-growing field of employment. Home health aides essentially have the same job duties as certified nursing assistants (CNAs). CNAs are generally covered by minimum wage and overtime laws, but workers with the same skills and same duties are exempt from those laws if they are working as home health aides. CNA wages are pushed down by home health aide wages, which are exempt from federal wage laws.

Why pay is about more than wages

A recent study of CNAs showed that nearly 60 percent of CNAs report injuries during a 12-month period. The injury rate is similar for home health aides. The study also showed that higher-paid CNAs were injured less frequently than lower-paid CNAs. The study indicated that organizational factors really drove injury rates among CNAs. In other words, in settings where CNAs are truly valued, paid fairly and trained, the injury rates are lower. But if CNAs are treated as low-wage, high-turnover cogs in a machine, then injury rates are higher. Low pay for CNAs and home health aides isn’t just an issue for employees. Low pay for home health aides and CNAs has been linked to poor patient care.

While the Obama administration has been criticized for being too aggressive in enforcing the FLSA, the U.S. Department of Labor announced that they will delay enforcement of the home health aide regulation until July 2015. This assumes courts will let the Department of Labor actually enforce the regulation. Anyone concerned about this issue should contact their members of Congress to support legislation that ends the home health aide exception. People should also contact their state legislators to support legislation that would ensure that home health aides are covered by state wage and hour laws.

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Avoid the Pitfalls of Auto-Pay Agreements

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

Many of my clients tell me, with fear in their voice, that they have one or more bills set to automatically pull from their bank accounts, but they have no money in the bank to cover the payment and will face overdraft charges if the payment pulls from their account.  Typically, these are car payments, as many auto loan lenders offer lower rates if the purchaser agrees to set up automatic payments.  Some businesses, like your local gym, may require auto-pay agreements. It seems like a good idea, when one is working.

Add an injury or disability into the mix, though, and it can become your worst nightmare.  Even under the best circumstances, an injured worker that is receiving their time loss compensation benefits – often 60 – 65% of pre-injury wages, or a much smaller percentage if they were a high wage earner and have hit the ceiling of compensation rates – will most certainly not be getting paid on the same schedule as their payroll department was using.  Juggling bills is hard enough with decreased income levels, but the forfeiture of control over the ebb and flow of funds in your bank account can put you in financial peril after an injury.

If you find yourself in the scenario I have described, try contacting your lender or service provider to inquire about making changes to the agreement you signed – or terminating the agreement, if needed – to at least make the drafts from your account occur on a better schedule but, preferably, to take back control of the payments.  You should maintain the ability to make payments to creditors on your own schedule when funds are available.  The auto-draft agreements are a contractual agreement, though, and you may need legal assistance to alter them.  In my experience, though, lenders are usually able to work with their clients to maintain the integrity of their loans.  In the long run, repayment is their goal and facilitating your ability to manage your payments is in their best interest, too.

Photo credit: 401(K) 2013 / Foter / CC BY-SA

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The workers’ compensation system is broken — and it’s driving people into poverty

Today’s post comes to us from the Washington Post via our colleague Jon Gelman.

There’s a good news/bad news situation for occupational injuries in the United States: Fewer people are getting hurt on the job. But those who do are getting less help.

That’s according to a couple of important new reports out Wednesday on how the system for cleaning up workplace accidents is broken — both because of the changing circumstances of the people who are getting injured, and the disintegration of programs that are supposed to pay for them.

The first comes from the Department of Labor, which aims to tie the 3 million workplace injuries reported per year — the number is actually much higher, because many workers fear raising the issue with their employers — into the ongoing national conversation about inequality. In an overview of research on the topic, the agency finds that low-wage workers (especially Latinos) have disproportionately high injury rates, and that injuries can slice 15 percent off a person’s earnings over 10 years after the accident.

“Income inequality is a very active conversation led by the White House,” David Michaels, director of the Occupational Health and Safety Administration, said in an interview. “Injuries are knocking many families out of the middle class, and block many low-wage workers from getting out of poverty. So we think it’s an important component of this conversation.”

There are two main components to the financial implications of a workplace injury. The first is the legal…

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Measuring Our Progress Since The Triangle Shirtwaist Factory Fire

As an attorney who practices in the field of Workers’ Compensation, there are some events that are seminal in the history of workplace safety. One of those events was the Triangle Shirtwaist Factory fire, which occurred on March 25, 2011. The Triangle Shirtwaist Factory was one of the largest factories in New York and employed 500 mostly Italian and Jewish immigrant women between the ages of 13 and 23.

These women worked long hours for low wages in this cramped sweatshop at sewing machines to produce women’s blouses, known in those days as shirtwaists. In order to protect themselves from their claim of thefts by the workers, the factory owners would lock the doors to one of the stairways leading to the street. While the union movement in New York was very strong and some of the workers had joined the International Ladies’ Garment Workers’ Union, the factory itself was a non-union shop; many believed the owners would lock their doors to keep organizers out. Whatever the reason, locking those doors had devastating effects. 

On that fateful day in March, a fire broke out that was fueled by thousands of pounds of fabric. Many were able to escape to the roof and then to adjoining buildings. Unfortunately for those on the ninth floor, there was very little means of escape. The elevator proved inadequate as it was only able to accommodate 12 people at a time, and the operator was only able to make four trips before it broke down totally. Bodies of many of the workers were found at the bottom of locked stairwells or in the elevator shaft when they tried to escape. The fire escape was flimsy and when it became overloaded with panicked women, it broke and sent dozens to their death. Those trapped in the factory by the fire were left with the agonizing choice of jumping to their deaths or being burned alive. Many chose to jump. Bystanders recounted stories of seeing victims kiss each other or hold hands as they jumped two and three at a time; they described the horrific thud as bodies landed on the stone streets below. When the final tally was taken, 146 people had perished. The catastrophe sent shockwaves throughout New York City and the immigrant communities of Manhattan’s Lower East Side, where families struggled to recognize the charred remains of their loved ones in makeshift morgues. 

On March 24, 1911, the New York Court of Appeals declared the state’s compulsory Workers’ Compensation law unconstitutional. The next day, 146 people were dead from that Triangle Shirtwaist fire. With no Workers’ Compensation system in place, family members and dependents had to turn to the courts in an attempt to force Triangle to compensate the injured and the families of the deceased. A civil suit brought by 23 victims’ families against the owners netted a whopping $75 in damages per victim! New Yorkers were appalled and angry at the greed and negligence of the owners and managers. 

The Triangle Shirtwaist Factory Fire was a preventable tragedy caused by unsafe work conditions and was a catalyst for change. New York finally adopted a Workers’ Compensation law in 1913. This law was intended to protect workers from unsafe working conditions and afford them with wage replacement benefits and medical treatment in exchange for giving up their right to sue. Unfortunately, we see an erosion of many of these benefits under the guise of reform, while insurance companies have made record profits. This month, while we acknowledge this grim anniversary, we need to make sure that these women’s deaths were not in vain. Let us never forget the reason Workers’ Compensation laws were enacted, and let’s be sure the system is not watered down to the point that injured workers and their families go back to getting $75 for a preventable death.

  

Catherine M. Stanton is a senior partner in the law firm of Pasternack Tilker Ziegler Walsh Stanton & Romano, LLP. She focuses on the area of Workers’ Compensation, having helped thousands of injured workers navigate a highly complex system and obtain all the benefits to which they were entitled. Ms. Stanton has been honored as a New York Super Lawyer, is the past president of the New York Workers’ Compensation Bar Association, the immediate past president of the Workers’ Injury Law and Advocacy Group, and is an officer in several organizations dedicated to injured workers and their families. She can be reached at 800.692.3717. 

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